I picked on Scalia in my original title because it was his dissent (found here) that offended my tender sensibilities. In it he said: the Supreme “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.”
A “full and fair trial” is not a trial where 7 of the 9 witnesses later recant their testimony. Isn’t the effect of these recanted testimonies, perhaps, the same as finding that DNA evidence that shows that the convicted person did not commit the crime? Do we pretend that because all of the i’s were dotted and the t’s were crossed during the trial that the trial was therefore “fair”? Apparently that is what Scalia advocates.
In this blog’s previous life I had profiled exonerated death row inmates as they were realeased. Were it not for DNA evidence they would have been executed. In many cases testimony was either flat-out wrong or perjured. And in some of the cases the testimony was coerced by police and prosecutors. But no one pretended that they had a “fair” trial and should be executed anyhow. Maybe some did and that such people are involved in our “Justice” system scares me.
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