Justice Antonin Scalia has taken some heat (but not nearly as much as now-Justice Sonia Sotomayor said for the out-of-context ``wise Latina'' comment; funny how that liberal media works) for this part of his dissent concerning a Georgia death row case: ``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 toconvince a habeas court that he is actually innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged actual innocence is constitutionally cognizable.''
In other words, as long as it can be determined that you had a ``fair trial,'' it does not matter -- not constitutionally -- if you are subsequently able to prove your innocence to stop your planned execution. Can any one give any defense of such an argument, that innocence doesn't matter and isn't a constitutional basis to assure that innocent people aren't executed? And if you can find legal precedence, which I'msure you can, given Scalia outlined plenty of those, is this what we really mean by justice? Is this what ``strict constructionists'' really think?
The rest of Scalia's argument was a bit more reasonable. He arguedthat the Supreme Court should take up the issue itself to resolve this instead of using a rarely used maneuver -- not used in 50 years -- to put the burden of this on a lower court. I can't argue this man's innocence and won't pretend to know if the witnesses were telling the truth two decades ago or today. But it disturbs me greatly that a sitting SupremeCourt justice really believes that actual innocence isn't justification to stop an execution. That's scary.
Here is Professor Dershowitz's Challenge to Justice Scalia
