No Comment — August 18, 2009, 10:27 am

A Culture of Death

Movement conservatives in the legal profession avoid comparison with foreign legal systems and deride judges who look abroad to see what others do. Perhaps that’s because they know that if comparisons were drawn, on some issues that are important to them, the United States would find itself in the company of some extremely unsavory characters. On the issue of judicial executions, for instance, the practices that the movement conservatives advance would put the country in tight competition with Communist China, Iran, and Saudi Arabia. Each of these countries makes heavy use of the death penalty, and they also make short work of appeals from death sentences, a procedural stance that the movement conservatives would apparently love to emulate. Two news reports this morning provide insight into their mindset on this issue.

One stems from the appeal of Troy Davis, a Georgia athletics coach tried and convicted of the murder of an off-duty policeman working as a security guard at a Burger King. Following the conviction in 1991, seven of the witnesses who testified against Davis recanted, several of them fingering the last major witness to appear against Davis as the actual killer. In a series of sharply divided decisions, the Georgia Supreme Court and the Court of Appeals refused to review his case, largely on technical procedural grounds. Each of these decisions discloses an ideological fault line: movement conservative judges want to proceed forthwith to an execution, others want to give close consideration to the new evidence. Yesterday the Supreme Court sent the case back to the District Court with instructions to examine Davis’s habeas petition. But the move provoked a sharp dissent from Antonin Scalia, who used the occasion to deliver a lecture on the Constitution and its relationship to justice:

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. 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, Scalia’s Constitution does not guarantee a man who has been convicted and sentenced to death–but who is actually innocent–a review of his case. It is certainly true that the Constitution provides no absolute guarantee of justice. But Scalia’s view effectively puts an expense meter on the justice process. Once the process has run through certain steps, that’s it. In his view, it really shouldn’t matter that subsequent evidence establishes that the conviction is mistaken. It’s more efficient simply to implement the decision and execute the innocent man.

That puts Scalia on the other side of the issue from his own church—since Pope Benedict XVI is among those who have registered appeals on Davis’s behalf—as well as an impressive list of former prosecutors and judges, like former FBI director William Sessions, who may reserve judgment on Davis’s guilt or innocence but are quite convinced that his conviction was secured on the basis of false evidence.

It’s but a short jump from Scalia’s perspective to that of Sharon Keller. She is the highest-ranking criminal judge in Texas, the state that consistently ranks first in the union in the number of executions carried out. She’s also on trial now for her actions in a death penalty case, which resulted in the execution of a man in 1994 who should have received a stay. The New York Times reports:

On Sept. 25, 2007, Judge Keller put in a 10-hour workday and went home around 4 p.m. to meet a repairman. That morning the United States Supreme Court had effectively suspended lethal injection as a manner of execution by accepting a challenge to its constitutionality in a Kentucky case. Largely on the basis of the justices’ action, lawyers for a Texas death row inmate were putting together an appeal to stave off execution. An assigned duty judge was waiting at the courthouse for any last-minute appeal on the inmate’s behalf. Around 4:45 p.m., the general counsel of Judge Keller’s court called her to relate a request to file paperwork after 5 p.m., the usual closing time for the court clerk’s office. Judge Keller replied that the clerk’s office closed at 5 p.m. A few hours later, the inmate was executed.

Keller’s attitudes on this point are remarkably like Scalia’s. Here’s how the Times reports on another controversy in which she refused to reexamine the case of a man convicted but later established as innocent on the basis of new DNA technology:

In 1998, Judge Keller wrote the opinion rejecting a new trial for Roy Criner, a mentally retarded man convicted of rape and murder, even though DNA tests after his trial showed that it was not his semen in the victim. “We can’t give new trials to everyone who establishes, after conviction, that they might be innocent,” she later told the television news program “Frontline.” “We would have no finality in the criminal justice system, and finality is important.”

Keller is a prominent Republican who holds her office through elections. It seems that the controversies surrounding her views about speeding the way to executions do not hurt her at the polls. That may help us understand the entire posture of the movement conservatives on this issue. They don’t pay much heed to the concerns of theoretical justice, but appear to be powerfully motivated to stake out positions that can mobilize the conservative voting base.

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