(03-20-2012 03:08 PM)Gravy Owl Wrote:  

(03-20-2012 08:23 AM)Owl 69/70/75 Wrote:  The distinction that I think Scalia is making is that guilt or innocence is a fact question and the Supreme Court is not a trier of fact. It rules on cases as a matter of law. If the law has been incorrectly applied, that is within the Supreme Court's purview, and if the result of that incorrect application of law distorted the findings of fact, then the case can be remanded for proceedings consistent with the correct application of the law.

Nobody has suggested that the SC try the facts. The ruling was to send it to District Court for a hearing.
Scalia disagreed with Stevens's rationale that the District Court had authority to do anything about it -- but Scalia's basis for that, quoted above several times, is what was so controversial.

I fully understand.

But I don't think the Scalia quote does anything more than restate well settled jurisprudence. Perhaps he could have worded it differently. Then again, perhaps he wasn't expecting it to get jerked out of context. I don't really see anything in it.

(03-20-2012 01:31 PM)Owl75 Wrote:  "it is improbable that evidence of innocence as convincing as today's opinion requires would fail to produce an executive pardon."

Boy - Scalia sure puts a lot of faith in the wisdom of governors.

I think he puts faith in the voters to remind their governors whom they work for

(03-20-2012 02:57 PM)georgewebb Wrote:  

(03-20-2012 01:31 PM)Owl75 Wrote:  "...the unhappy truth that not every problem was meant to be solved by the United States Constitution, nor can be. "

Wow, what a concept!
I will offer two corollaries:
- not every problem was meant to be solved by the judiciary, nor can be.
- judicial attempts to solve problems which are not judicial or constitutional in nature can do more harm than good, specifically in that they may pre-empt political solutions.

Seems like a pretty glib reaction to the "problem" of a potentially innocent man being killed by the state.

(03-20-2012 02:57 PM)georgewebb Wrote:  By their nature, political solutions often rarely satisfy extremists or their lawyers, but they do tend to satisfy most people in the long run and they also tend to get fewer people killed. One example is the most significant problem in U.S. history, which arguably was on its way to legislative solution before a misguided Supreme Court waded in. With the legislative avenue foreclosed, the solution shifted to a military one, which killed more Americans than any other event in history.

I admit, I don't get your reference.

(03-20-2012 05:21 PM)JOwl Wrote:  

(03-20-2012 02:57 PM)georgewebb Wrote:  

(03-20-2012 01:31 PM)Owl75 Wrote:  "...the unhappy truth that not every problem was meant to be solved by the United States Constitution, nor can be. "

Wow, what a concept!
I will offer two corollaries:
- not every problem was meant to be solved by the judiciary, nor can be.
- judicial attempts to solve problems which are not judicial or constitutional in nature can do more harm than good, specifically in that they may pre-empt political solutions.

Seems like a pretty glib reaction to the "problem" of a potentially innocent man being killed by the state.

I assume this was an aside, not meant to refer directly to the current topic.

(03-20-2012 05:21 PM)JOwl Wrote:  

(03-20-2012 02:57 PM)georgewebb Wrote:  By their nature, political solutions often rarely satisfy extremists or their lawyers, but they do tend to satisfy most people in the long run and they also tend to get fewer people killed. One example is the most significant problem in U.S. history, which arguably was on its way to legislative solution before a misguided Supreme Court waded in. With the legislative avenue foreclosed, the solution shifted to a military one, which killed more Americans than any other event in history.

I admit, I don't get your reference.

I took this to mean Dred Scott, which struck down the (already largely moot at that point) Missouri Compromise and set precedent limiting federal legislative authority with regard to slavery and the citizenship/standing of African Americans.

(03-20-2012 03:26 PM)Owl 69/70/75 Wrote:  I fully understand.

But I don't think the Scalia quote does anything more than restate well settled jurisprudence. Perhaps he could have worded it differently. Then again, perhaps he wasn't expecting it to get jerked out of context. I don't really see anything in it.

I have read his dissent several times now, and I don't think the context does much for the two statements under discussion.

We're probably at the point where we should agree to disagree.

Scalia says the constitution doesn't forbid it. Unless someone can show me where it does, I think the comment stands on its own. The implication that once you play the game, nothing can be done for you is projection. That's what pardons are for.

An example of courts with different outcomes might be civil versus criminal. A criminal court might find someone guilty, but not the civil. Sort of a reverse oj. Does this remove the criminal conviction? No. I can't imagine, other than my example of someone taking the fall intentionally for someone else where the prosecutor freed them by introducing an illegal confession where the idea might apply... But none of that has to do with what the constitution says about it

I think Scalia is concerned that someone lawfully convicted, and possibly even executed, would file a civil rights claim. Scalias argument is that barring misconduct somewhere along the lines, you aren't guaranteed all the time it could possibly take to prove your innocence. To do so would make executions unconstitutional, because you might, someday, be able to prove they didn't do it.

If you disagree I understand, but it sure would leave me (if I were you) with an awful lot of fear and angst towards one of the most powerful people in the country. I can't imagine that scalia has NEVER voted to turn a conviction back to the lower court, which sort of glues in the face of your belief about him, it seems

No hard feelings at any rate. It is nice to disagree with people, even vehemently without being called names. Thank you for the debate

(03-20-2012 05:42 PM)Gravy Owl Wrote:  

(03-20-2012 03:26 PM)Owl 69/70/75 Wrote:  I fully understand.
But I don't think the Scalia quote does anything more than restate well settled jurisprudence. Perhaps he could have worded it differently. Then again, perhaps he wasn't expecting it to get jerked out of context. I don't really see anything in it.

I have read his dissent several times now, and I don't think the context does much for the two statements under discussion.
We're probably at the point where we should agree to disagree.

Since I've also read it several times and have reached a totally different conclusion, I'm thinking that's probably a useful approach.

(03-20-2012 06:08 PM)Hambone10 Wrote:  Scalia says the constitution doesn't forbid it. Unless someone can show me where it does, I think the comment stands on its own. The implication that once you play the game, nothing can be done for you is projection. That's what pardons are for.

Actually, Scalia doesn't say that. His statement is not definitive. With respect to whether the Constitution forbids it, he says "[the Supreme Court] has repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged 'actual innocence' is constitutionally cognizable".

(03-20-2012 06:08 PM)Hambone10 Wrote:  An example of courts with different outcomes might be civil versus criminal. A criminal court might find someone guilty, but not the civil. Sort of a reverse oj. Does this remove the criminal conviction? No. I can't imagine, other than my example of someone taking the fall intentionally for someone else where the prosecutor freed them by introducing an illegal confession where the idea might apply... But none of that has to do with what the constitution says about it

I think Scalia is concerned that someone lawfully convicted, and possibly even executed, would file a civil rights claim. Scalias argument is that barring misconduct somewhere along the lines, you aren't guaranteed all the time it could possibly take to prove your innocence. To do so would make executions unconstitutional, because you might, someday, be able to prove they didn't do it.

If you disagree I understand, but it sure would leave me (if I were you) with an awful lot of fear and angst towards one of the most powerful people in the country. I can't imagine that scalia has NEVER voted to turn a conviction back to the lower court, which sort of glues in the face of your belief about him, it seems

No hard feelings at any rate. It is nice to disagree with people, even vehemently without being called names. Thank you for the debate

Your earliest comment cast Scalia's position as "If new evidence comes out ... that is reason for a new trial". Do you still have that reading of Scalia's position?

I didn't actually intend to speak for Scalia... I Have no reason to defend or attack him. I merely intended to put forth a rational alternative to the supposition that once the game is played, it is over.

Scalia said, the court has never held that the constitution forbids the execution of a justly convicted person, even if he is later determined by a court to be not guilty. I am going from memory, but I think I'm close.

You seem to agree that the court has never held what he says it has never held... So I don't see what is wrong with the comment on its own. One projection of this comment is what was stated, that if you play the game and lose, you are out of luck, even if you are "actually" innocent. Another is what I stated... That the expectation is that if someone is actually innocent, as opposed to merely being "held by a court to be so", that the tools and methods to correct the incorrect original decision exist. It is pretty difficult to convict someone of murder without a body. If a jury convicts someone for murder, it is certainly POSSIBLE that the person shows up 80 years later to prove him not guilty. If the jury found this probability, based on the evidence, to be beyond a reasonable doubt, and appellate courts determine that the criteria was justly applied... Then it makes sense to me that we shouldn't have to wait until it is actually impossible for that person to be found alive to execute someone convicted of their murder. I mean, how long could that be? Arguably, 100+ years.

Having a court find you not guilty is not proof that you didn't do it... See OJ. When courts disagree, one must assume that there was either something different presented at the two trials (new evidence) or that the burdens of proof were different... Say a state murder charge versus a federal hate crime murder charge.

I guess I'm trying to imagine the situation where someone is convicted of murder without a body so that the supposed victim COULD actually prove him not guilty (factually innocent as opposed to legally not guilty) where the conviction is upheld by numerous courts and not stayed by any governor and the person executed... And the remoteness of that situation versus the only rational solution if one actually feared this possibility was reasonable, and that would be to never allow execution... Because it is ALWAYS possible, no matter how remote, that someone's long lost and previously unknown twin was the actual victim and not the supposed victim... So although the evidence shows they killed someone, it turns out the "whom" was wrong, which could invalidate the conviction... Even one where the DNA was legally conclusive.

I'm obviously stretching the bounds of logic, but only because I think Stephens is doing so. How would someone get convicted, have that conviction be upheld as fair and impartial, and then have another court find him not guilty and that result, if ALSO fair and impartial be ignored? The entire scenario escapes me. The ONLY example that comes to mind would be a retrial of someone based on DNA evidence not available at the time, after the execution, that exonerates them.... Which brings us to scalias comment... That the court has never held that the constitution prohibits what happened. Does it? They were given a fair trial. The fact that trials have become even MORE fair, and may someday allow for us to enter people's minds and see what actually happened as opposed to merely making expert guesses doesn't preclude us constitutionally from meting out punishment based upon the best science and technology available at the time.