The Supreme Court did a rare thing yesterday -- it ruled favorably on an original writ of habeas corpus (one that is initially filed at the Supreme Court). Specifically, it ordered a district court in Georgia to review the defendant's "actual innocence" claim. Original writs have been summarily rejected for decades. This is a rare, strange bird we're seeing.
Scalia dissented. And a commenter asked:
I would be very much interested in any thoughts you have regarding Scalia's recent dissent in a Georgia death penalty case in which he argues that "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."
Is this as insane as it sounds?
The answer is . . . maybe. I'll explain below the fold (wonky). And I appreciate the advice I've received on these matters from Lee Kovarsky, an Acting Assistant Professor at NYU School of Law (all errors remain my own though).
There are basically two potential interpretations of Scalia's words here. Under one interpretation, Scalia's argument is very reasonable. Under the other, it's not. Let's start with the former.
To back up, remember that habeas is a remedy. To obtain this remedy (i.e., release, new trial), you must first show that some right has been violated, such as the right to effective assistance of counsel. So keep this distinction between the right and the remedy in mind.
Believe it or not, evidence of "actual innocence" has never been recognized as an independent ground for habeas relief. As Scalia correctly notes, the Court has never held that such evidence entitles you to a new trial or release.
And there's a reason for that. To claim that "actual innocence" triggers habeas relief gives rise to an extremely complex set of constitutional and statutory questions, and has all sorts of wide-ranging implications. (Just trust me).
Another concern is that it would essentially constitutionalize motions for new trials. In other words, it would greatly expand federal habeas review, which is currently sharply limited by federal statutes. More precisely, it would expand it to guilt determinations, rather than to analyses of constitutional error.
Scalia is also more fundamentally deferential to state courts. If defendants got to raise their innocence claims in state courts in a fair trial, then Scalia is ok with that. He's less comfortable with trying to "know" things that lie outside the procedures of the trial process. If the procedures were fair, that's the best we can do.
Essentially, then, the reasonable interpretation is that Scalia isn't necessarily saying we can execute the innocent. I don't think he would go that far -- if the defendant is 100% innocent, even Scalia would agree, one hopes, that execution is unconstitutional. Instead, Scalia is saying that this is an inappropriate case to take such a huge and unprecedented step. In this sense, Scalia's statement isn't quite as harsh as it sounds. It's more of a statement of fact.
But, there's another interpretation that makes Scalia's words more unreasonable.
Under this interpretation, Scalia is probably ignoring some very strong evidence that this guy is innocent. The Court hasn't ruled favorably on one of these writs in decades. Quite clearly, at least 6 Justices were convinced he had a strong claim, or they wouldn't have taken such a drastic step.
Scalia, then, may be saying that even a hypothetical 100% innocent defendant could not get habeas relief. If so, that's obviously problematic. And possibly insane.
If this latter interpretation is correct, then Scalia is simply assuming that state procedures (clemency, etc.) are sound and would never allow this nightmare scenario happen. If so, I'd encourage him to come visit Texas sometime.
[UPDATE 2:00 PM -- Josh Patashnik at TNR has more commentary here.]