SCALIA: "Mere factual innocence is no reason not to carry out a death sentence properly reached."

[kpete]

Last edited Tue Feb 16, 2016, 12:19 PM - Edit history (1)

TUESDAY, FEB 16, 2016 03:00 AM PST
Shed no tears for Antonin Scalia: Let us not praise the man who gave us Citizens United and Bush v Gore
Scalia let the innocent die, trampled our basic rights, gutted democracy and gave us George W. Bush. Good riddance


If the law does not protect the innocent, then it’s hard to conceive what the law is for. Yet, Scalia—so deeply devoted to the rule of law—repeatedly held that it did not. In his 1993 concurrence in Herrera v. Collins he wrote:

There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.

Sixteen years later, in the case of Anthony Davis, after seven key eyewitnesses recanted their testimony, some fingering a man who testified against Davis, Scalia wrote:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.

So you’re innocent? So what? That was Scalia’s “judicial philosophy” in a nutshell. He was the giant of the conservative legal world for three decades—its Ronald Reagan—and that’s precisely what he stood for. That’s what the conservative legal world stands for.

http://www.salon.com/2016/02/16/shed_no_tears_for_antonin_scalia_let_us_not_praise_the_man_who_gave_us_citizens_united_and_bush_v_gore/


I believe this denial of stay of execution on Wednesday is the last official action of Antonin Scalia on #SCOTUS.

https://twitter.com/chrisjohnson82/status/698640227645026305?ref_src=twsrc%5Etfw

[jberryhill]

1. Oh come off of it. He took Ruth Ginsberg to the opera

Granted, she's not a black voter in Texas, a fired gay employee, or an innocent person convicted of a crime, but it's just a "difference of opinion" they have about YOU if you are black, gay or accused of a crime.

He's a swell guy who doesn't have a problem killing innocent people.

As long as you aren't one of them, it's all good.

[gregcrawford]

15. And what does it say about Ruthie...

... that she could blithely overlook such heinous, repugnant, and perverted view of the law and call him her dear friend?

RBG also voted with Scalia to allow New Haven, Connecticut to impose eminent domain on an entire middle class neighborhood so some scumbag developer could make a fortune building a shopping complex that no one needed or wanted. The neighborhood was demolished, but it remains an empty lot to this day; nothing was ever built. But all those families lost their homes "for the greater good." Bullshit.

So I have little patience with those who want to tell me what a saint Ruth Bader Ginsberg is.

When you remove any common human decency from legal considerations, the law devolves into nothing but a tool of totalitarianism.

Scalia's diseased belief system that allowed for a man to be executed even though exculpatory evidence proved him to be innocent is the very definition of all that is sick and hateful about conservatism.

Scalia was NOT a great jurist, he was a sadistic asshole, and the world's a better place without him.

And I'll bet he was a big fan of that rabid antisemite, Rickard Wagner.

[jberryhill]

16. It says she likes a good opera

These things don't affect them.

[Hortensis]

22. It says she liked him for his good facets.

That's all it says. These people were working together for life, and learning to respect and appreciate each other's better qualities is high functioning.

[jberryhill]

26. Correct, as I said, it's not as if these decisions affected them

They don't live in the world where they are locked up, fired and denied rights based on whom they love. They don't live in the world where they are shaken down and arrested on mistaken identity.

They have no connection to that world at all.

[gregcrawford]

28. And it has never appeared to me...

... that they ever make the slightest effort to understand or appreciate what people outside their hallowed halls have to deal with on a daily basis, especially People of Color for whom the law has never been anything but an instrument of brutal repression.

And regarding the original quote, how can a death sentence be considered "properly reached" if the verdict was WRONG, as subsequent exculpatory evidence, by definition, proves?

Christ, that quote has dug under my skin like a fuckin' chigger. What a despicable man.

[RobinA]

31. Couldn't Agree More

about Scalia's "innocence - the law is above such banalities" philosophy. The first time I heard it I wanted to throw up, it was like a punch in the gut. The Supreme Court has been a lesser institution to me ever since.

[Hortensis]

29. That is NOT what I meant. Notorious RBG is a

very fine woman who is practically the polar opposite of Scalia in legal philosophy.

IMO, a cynicism so extreme that it loses touch with reality and denies the good in good people is even more unfortunate than no cynicism at all, and very unjust.

[jberryhill]

30. Who said she's not a fine woman

She's a wonderful woman. Highly educated. Very cultured.

Are you suggesting she's been accused of a capital crime? Arrested under anti-sodomy laws (upheld by Scalia)? Or otherwise had to bear the consequences of what this man has done to actual people's lives?

She didn't have to go off to die as so many did, because of the result of Bush v. Gore.

[gregcrawford]

33. Overlooking foibles and peccadilloes...

... to maintain civility in the workplace is one thing – I've done that for 50+ years – but I do not believe one can conveniently compartmentalize a reprehensible position, that might cost a man his life, from that jurist's character in general. Scalia taking Ginsberg to the opera does not excuse him from responsibility for decisions that might cost innocent people their lives, and Notorious RBG shouldn't excuse or compartmentalize it, either.

I've had to work with some truly vile people in my career, but I didn't have to like them or go to the opera with them. I think the people one chooses as friends says a great deal about one's character. Even if I were a Supreme Court Justice, I would NOT call Antonin Scalia a friend. I would be civil him in the workplace, which is more respect than he afforded others, by rumors I've heard over the years, but I would never invite him over for dinner. One cannot hold views like his and call one's self a good person.

[laundry_queen]

40. I agree with everything you have written in this thread. nt

[Hortensis]

42. Justices attempt to influence outcomes

through political maneuvering, forming friendships and temporary and permanent alliances, negotiating, and on and on. Any justice treating another like a murderer would be marginalized and lose a great deal of power, also a critical level of respect from better disciplined colleagues.

And I really do believe compartmentalizing just that much is a requirement for basic competence for anyone who has to get along with others in their work. People operating at high levels, where decisions affecting large groups always hurt some of them, do it all the time, or they end up not operating at that level.

[rhett o rick]

2. He had a very strange concept of justice. nm

[Iggo]

3. "Mere"

Pretty much says it all.

[Sanity Claws]

6. That is the part that got to me too

Factual innocence is considered just a "mere" factor in the administration of justice.

Amazing.

[malthaussen]

11. It is, if you're an authoritarian.

Mr Justice Scalia's opinion is securely within the tradition of those who believe order, deference, and submission to authority are the greatest goods of human society. It is not even a quirky, personal view, it is one shared by vast numbers of authoritarians. The concept of equity -- which many consider "justice," -- is neither absolute nor really all that common outside the European democratic tradition. Of course, Mr Justice Scalia was an inheritor of that tradition, and arguably as a Supreme Court justice should be its curator, but it is bootless to blame a scorpion for being poisonous.

-- Mal

[Hortensis]

23. THIS! Authoritarians feel that maintaining a strong

social structure is more important than individual justice. For them, this is a high principle, as Malthaussen explained so well above.

Notably, in practice, they view with great suspicion people who find themselves on the wrong side of the law, and the natural tendency is to wish to believe those people did something wrong to deserve it. Here in the deep south we are surrounded by authoritarian mindsets and find this attitude affecting thinking on virtually every social issue.

As said, an authoritarian bent is very common -- among conservatives. Religious conservatism is almost synonymous with authoritarianism, God the highest authority of all, of course.

And if it sounds like authoritarianism would be integral to fascism, yes.

[malthaussen]

25. In Guy Sajer's book, The Forgotten Soldier, is an unforgettable vignette:

Sajer was a soldier in the German Grossdeutschland division for most of the 2nd world war (we'll leave aside the disputes raised about his authority as irrelevant to the tale at hand). Towards the end, the division had substantial logistical problems, and was completely disorganized, broken up, and in chaos. Sajer and his mates, having not eaten for several days, came upon a broken-down supply truck (from their own division, by coincidence), and helped themselves. But as they were supplying themselves, the German equivalent of the M.P.s came along, and Sajer and the boys ran into the woods, except for one unlucky comrade who was collared by the coppers. Who immediately hanged him for looting, while the rest of the squad watched from the woods.

Picture it. You're a group of heavily-armed soldiers in the final stages of a military collapse, starving and scared and wounded, and one of your friends is executed by a couple of rear-echelon jokers whose only concern is to enforce the strict laws against looting -- and you and your comrades do nothing to stop it. Can it be imagined, if that had been a U.S. unit, if there would have been any other result than a couple of dead M.P.s? But Sajer and his friends did nothing, because ordnung ist alles.

That is either more admirable than I am capable of conceiving, or very, very cowardly and dumb.

-- Mal

[Major Nikon]

44. Authoritarianism relies on blind adherence to the status quo

Humans by nature are fearful of change. Once a law or a rule gets passed and a power structure is established, it is nearly impossible to dismantle it even when it makes absolutely no logical sense. That's why demagoguery is such a powerful tool for authoritarians and the antithesis of progressivism.

[eppur_se_muova]

18. The title of the OP is apparently not an actual quote, though widely reported as such. nt

[mountain grammy]

4. but, but, his family and RBG loved him so...

we must be sensitive that he was, after all, a human being, and to embrace his death is to have hate in your heart.. can you live with your hate?

I have no hate, the hater is dead and, for the vast majority us, the world is a better place.

[SoLeftIAmRight]

5. Can we dance now without all the sad people telling us that we are

disgusting

[SwankyXomb]

17. Most of those are right wing types anyway

[KG]

21. you noticed that too.

[laundry_queen]

41. I noticed it too

and when I mentioned it I got the crazy smiley from one of the culprits.

[Rex]

7. But he was a jenus! Brilliant mind, just look at his solid logic for sending an innocent person

to their death! Really, the ONLY people I see crying over Rotten Scumbag's death are the 2nd amendment fanatics...and now that their avatar is dead they are freaking out. Amusing to watch, but a little bit pathetic too since it is so transparent.

[Liberal Veteran]

8. That's been on my mind the last few days. The fact that ANYONE would reduce innocence....

...as an important component in carrying out a sentence of death makes a mockery of the term "justice".

[lastone]

9. Hence

...why people are dancing on his fresh grave, fuck that racist homophobic asshole.

[FiveGoodMen]

10. My two cents

One of the foulest dumps that Satan ever took...

...is no longer on the Supreme Court.

[kpete]

19. well said

i don't give a fuck about his so-called soul either

thanks FiveGoodMen
your two cents needs to be said

peace,
kp

[Solly Mack]

12. and mere factual death is no reason to confer respect on a piece of shit.

K&R

[Scalded Nun]

13. Everything you need to know about this person is in that one sentence

'This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.'

His way of balancing double jeopardy.

[avaistheone1]

14. I can't understanding how some of the pundits following his death are

lauding this man as "a great intellectual"!!! What a joke.

[GeorgeGist]

20. Fat Tony was brilliant ...

at baffling folks with bullshit.

[white_wolf]

24. Brilliance is no guarantee of decency.

Which is rather sad since being "decent" is about the least you can ask of people and so few fall short.

[Ilsa]

36. And for me, that is the key.

What is the point in being right about procedure if you still kill an innocence person? How can a society be decent if it executes the innocent, starves its people, leaves its children ignorant?

[malthaussen]

47. A philosophical question:

Would you rather be right for the wrong reasons, or wrong for the right reasons?

-- Mal

[HughBeaumont]

27. "I didn't agree with his OUTcomes. But he had intelligent reasoning behind them all."

This was from my FB feed. Not even kidding.

Yes, I imagine there was an amazing reason to interfere with a state-run recount of a Federal Election and install your buddy's dry drunk serial failure of a son to glad-hand corporations and gas the war machine up to full throttle.

Anyone who had a hand in the installation of the Shitdumb Scion doesn't deserve anything more than "participants in a coup".

This isn't even counting Scalia's other statements of sheer evil.

You Installed W. That Decision Killed Hundreds of Thousands. So Sod OFF.

[Act_of_Reparation]

32. Oh, but don't gravedance.

That would be disrespectful.

[Karma13612]

34. Reminds of the parental philosophy

that thinks its OK to beat your kids regularly even if they've done nothing wrong.
Just to keep them in line.

Yea, that's how to treat human beings all right.

Scalia probably thought that if you were accused, even wrongly, that there must be reason for you to be punished.
Just to keep you in line, in the eyes of God.

[KamaAina]

35. Um, wouldn't factual innocence imply that the death sentence had not been properly reached?

[Recursion]

38. No. Why would it? (nt)

[malthaussen]

45. Legally, not at all.

The Court reaches a decision based on evidence presented. If insufficient evidence was presented to result in acquittal, then the sentence was properly arrived at. The emergence of later evidence does not invalidate the court's decision. One might argue, if one had a concern for equity, that the emergence of such evidence is grounds for a retrial or re-assessment of the case, but there is nothing in law that requires it. Mr Justice Scalia's opinion is factually correct, but morally repugnant.

You must remember that the purpose of the Court, the purpose of the Law, is not to find the truth, but only to determine what is probable beyond a certain level of doubt. If the verdict and the truth correspond, then so much the better, and normally this is an aspiration of the law. The procedures developed are an attempt to arrive at this correlation, but not all cases are cut-and-dried.

It's rather like science, in one way. Scientific truth is only so good as our instruments of observation and measurement. It may often happen that an experiment is procedurally correct and complete, but returns results that are later discovered to be incomplete or incorrect, simply because technical improvements have improved the evidence. That results in re-writing the textbooks, but no one would suggest incompetence or ill-will on the part of the researcher when this happens. They did they best they could with the tools at hand. (For example, when I had my stroke, the initial ultrasound discovered no infarct, while the MRI found three. The former was properly done, just not capable of detecting the defect)

For the authoritarian, and this is what this ruling is all about, make no mistake, there is no acceptance of the concept of flexibility or adaptation to circumstances or new evidence. And when one is a strict authoritarian in government, the sacredness of the decisions made by authority override all other considerations (you can see this, in fact, in the claim that "my second amendment rights are more important than your dead child&quot . The governing power can not admit error under any circumstances. (This is why, for example, until the 19th century truth was no defense in a libel case) Mr Justice Scalia was firmly within this tradition.

-- Mal

[Odin2005]

37. This is the kind of amoral legalistic nitpicking that makes people hate lawyers.

It's true in a strictly literal sense and that is all that mattered to Scalia, nuance and common sense was unacceptable.

[malthaussen]

46. That's one way of looking at it.

Another way to look at it is that Mr Justice Scalia was concerned with jurisdiction and State's rights. Murder is not a Federal offense (well, some murders are, it depends on who and where. But your garden-variety murder is not). Our legal system is crazy, in that there are 50 states, and 50 of them have their own ideas on what constitutes legal, and what does not. You might argue that this is ridiculous, especially as regards capital crime, and I might agree with you on that, but the reality is what it is. If lower court arrived at its verdict in compliance with the Constitution and federal standards, which is all the Supreme Court is concerned with, then the USSC has no business telling them how they should handle the case in question. What I find interesting is that the onus should be on the State that refused to consider fresh evidence which cast into doubt the legitimacy of the original trial. They should have done something about it, it is not the place of the USSC to tell them to clean up their own mess, unless it can be shown (as with the Voting Rights Act), that the state is systematically and institutionally infringing Constitutional rights.

-- Mal

[Recursion]

39. I'm against the death penalty but I pretty much see his point there

If there's not a procedural problem with the original conviction then there's not a place for a Federal court to overturn it.

Keep in mind that Scalia was in the dissent in that case, Davis was given another trial, and was again found guilty. It's entirely possible that he actually committed the crime, you know.

[Kingofalldems]

43. Kick and rec for our republican visitors.