The Davis Tremor

by publius

The following is a guest post from Lee Kovarsky, an Acting Assistant Professor at NYU School of Law, who I discussed these issues with yesterday and who knows this stuff inside and out. In light of yesterday's great thread, I thought you might enjoy.  It spells out the problems with Scalia's position in ways I can't.  One interesting point he raises, for instance, is how DNA evidence poses a fundamental (and I'd say fatal) challenge to Scalia's position.
______________________

On Monday, the Supreme Court handed down an extraordinary three page order directing a federal district court in Georgia to determine whether newly-discovered evidence would establish that Troy Davis did not commit the murder for which he was convicted and is to be executed. The order provoked an explosive response from Justice Scalia, who wrote in dissent that “[t]his 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.” He characterized the federal proceedings in Georgia as a “fool’s errand.” Justice Scalia’s dissent sparked considerable confusion and anger, with many outraged at the thought that he endorsed the execution of an innocent man.

The decision is stunning for two reasons: (1) for the procedural posture in which the Court made it (granting an original habeas petition) and (2) for the substantive legal possibility the original habeas grant implies (that a “freestanding” claim of “actual innocence” could be a basis for federal habeas relief). Explaining why this ruling is so important, and doing so in terms that non-habeas specialists can understand, is a daunting task that I execute very imperfectly below.

BACKGROUND

Davis was convicted in Georgia state court for murdering a police officer. After Davis was convicted, he filed a first federal habeas petition, alleging a variety of constitutional violations. Relief on that petition was denied. (Note: for the purposes of this discussion, a habeas petition is filed in federal court, and tests the constitutionality of a state prisoner’s conviction or sentence.)

Davis had been arrested after a highly publicized manhunt, and seven of the nine witnesses testifying against him have now recanted their testimony. Another man has admitted to approximately four other people that he – not Davis – committed the murder. Davis filed a second (“successive”) habeas petition, alleging a “freestanding” innocence claim – a naked claim that he is not guilty and that is not accompanied by an allegation of some other constitutional violation (such as ineffective assistance of counsel or the prosecution’s failure to disclose exculpatory evidence).

In 1996, Congress severely restricted the circumstances under which state prisoners could file successive petitions. One restriction requires the prisoner to seek “authorization” from a federal appeals court before proceeding on the merits of the claim in district court. Another restriction bars the Supreme Court from using a “writ of certiorari” to review that authorization ruling. Certiorari forms the basis of the Supreme Court’s jurisdiction to review a lower court. Certiorari is, by extreme orders of magnitude, the most frequently-invoked authority for reviewing lower-court decisions. Ninety-nine percent of the Supreme Court cases that law students read are decided on certiorari review.

THE ORIGINAL HABEAS RULING (NON-LAWYERS MAY WANT TO SKIP THIS)

Although almost all Supreme Court cases are decided under the Court’s certiorari authority, the Court retains other obscure authority to reach issues for which more conventional jurisdiction (certiorari) might be unavailable. The Court’s “original habeas” jurisdiction is one such exotic source of authority. To give you an idea of just how obscure it is, the Supreme Court had not exercised its original habeas jurisdiction since 1925. You have probably heard about Supreme Court “habeas” cases, but those are all cases that were decided by a lower court and that the Supreme Court has adjudicated pursuant to its certiorari jurisdiction.

Recall the specific procedural posture of the lower court decision – Davis cannot seek certiorari review of the order denying authorization of his successive petition.  Because of constitutional concerns raised by this certiorari-stripping provision, in 1996 the Court ruled that it retained (among other types of authority) its original habeas jurisdiction to review the issues decided by circuit courts in authorization rulings. But until Monday, the Court has never actually exercised that jurisdiction.

So one relevant procedural question is whether Davis is a blip in the Court’s otherwise steadfast failure to exercise original habeas jurisdiction, or whether Davis signals a new role for that jurisdiction in superintending the factfinding of state courts.

THE “FREESTANDING INNOCENCE” POSSIBILITY

While the original habeas ruling is fascinating for federal jurisdiction and Supreme Court scholars, the headline is the substantive rule of law that the decision might imply. The Court would not have issued the first original habeas grant in eight decades if it was not receptive to the underlying substantive issue that the case presented – a claim of freestanding innocence. If the Court ultimately affirms the availability of freestanding innocence claims, then the Davis tremor will become a full-blown earthquake. Understanding why requires a little historical perspective.

The explosion of Warren-era habeas litigation provoked several conservative critiques, including a particularly influential article by Professor Paul Bator. Bator’s position remains the modern “conservative” (or “federalist”) paradigm for habeas adjudication. Bator argued that “ultimate truth” is unknowable. What we mean by “guilty,” Bator argued, is that some quantum of reliable procedure has produced a legal determination that someone has committed a crime. Bator’s point really an epistemic one involving the limits of human inquiry – that the criminal justice system ensures correctness by proxy of reliable procedure.

Here’s the rub. Under that paradigm, the question of whether someone is “actually innocent” is incoherent, because it presumes a god’s-eye view of guilt that is not tethered to the judicial processes that produce that verdict. Those subscribing to Bator’s paradigm (including Scalia) argue that the freestanding innocence question is not “whether a state may constitutionally execute an offender known to be innocent,” but “whether an offender, whose guilt has been determined beyond some threshold of certainty, has a constitutional right to a federal forum to retest his conviction when guilt seems less probable.”

If one adopts the former phrasing of the question, then an execution of an “innocent” prisoner would almost certainly be unconstitutional under the Eighth and Fourteenth Amendments. When you adopt the latter phrasing, however, freestanding innocence sounds a lot less like a “constitutional” claim – it really just sounds like a motion for a new trial in a federal forum. And if the freestanding innocence claim is not “constitutional,” then a state prisoner can’t get habeas relief to redress it because federal habeas relief issues only to remedy constitutional violations.

Scalia has embraced this paradigm openly for years, and his arguments embody the belief that, assuming full and fair state process, guilt determinations remain the unique province of state judiciaries. To Bator, Scalia, and others, allowing freestanding innocence relief represents an intolerable encroachment on the co-equal sovereignty of state courts. In the end, the position is really about promoting federalism and preserving a historic function of state courts, especially where incremental federal process adds little to the project of truth-seeking.

The reason Scalia is not entirely off base is that the Court has really hedged on which framing of the question it prefers. It was squarely presented with the freestanding innocence question, which it promptly ducked, in Herrera v. Collins (1993). The Court conspicuously avoided the freestanding innocence question again in House v. Bell (2005) and in District Attorney’s Office For the Third Judicial District v. Osborne (2009).

So Justice Scalia is absolutely correct when he says that “[t]his 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.” As a descriptive matter, the Court has never issued such a holding. The problem with Justice Scalia’s remark is with its implication – that the Court has sent the Federal District Court for Southern District of Georgia on a “fool’s errand.” Just because the Court hasn’t recognized freestanding innocence does not mean that it shouldn’t.

Bator's argument has several problems.  First, Bator’s critique is persuasive only within a certain band of uncertainty, and we don’t always operate in that band anymore. When the only thing that a freestanding innocence claim demanded was consideration of new (often stale) witness testimony, then one could persuasively argue that federal habeas review created incremental procedure without a corresponding incremental benefit.

That argument is dated in the era of DNA evidence. DNA evidence, while not that panacea many seem to think it is, brings us as close to “ultimate knowability” as we can come. Requesting consideration of DNA evidence is not merely a “request for a federal forum to retest a conviction when guilt seems less probable;” it can conclusively exonerate an offender. Davis isn’t a DNA case, but six justices on the Court seem to think that it involves evidence that may be just as exculpatory.

Second, one of the central but implicit conceits of the Scalia/Bator argument is that state and federal process produce equally accurate results. State postconviction review and clemency – so the argument goes – render concerns about executing innocent offenders moot. That position is virtually indefensible, especially in capital cases. We know that innocent people are convicted of crimes, both as a matter of statistical certainty and with respect to specific defendants (Timothy Cole). State judges are elected, often running with “tough on crime” platforms. Allowing a murder to go unpunished is a cardinal sin in many jurisdictions. For a murder conviction to be set aside on state postconviction review, an elected judge would have to let a convicted murderer go free. In many states, the postconviction judge reviewing the conviction is the same judge that presided over the convicting court.  State court systems sometimes include separate civil and criminal supreme courts. A state criminal supreme court faces even more intense political pressure to be “tough on crime,” because criminal matters are its docket’s exclusive subject matter.

The idea that state clemency is a safety net is even more absurd. State clemency authority is vested either in a governor or in some board that (s)he appoints. Those people are even more politically sensitive than elected judges. Moreover, state clemency determinations come with no procedural safeguards, there are no substantive standards, and they are not reviewable by any judicial body. To put it bluntly, there are very powerful structural arguments against the proposition that state postconviction and clemency procedure is a sufficient check on the execution of innocent offenders.

This post is not the appropriate vehicle for restating all of the arguments against Justice Scalia’s position, but the two I note above are probably the most forceful ones. If Justice Scalia’s premise is that the Court has never recognized a freestanding innocence claim, then these two arguments cast tremendous doubt on the implication of that premise. The Court has never recognized freestanding innocence claims, but there is an increasingly persuasive argument that it should.

*****

All of this might be sound and fury, signifying nothing. The Supreme Court sent this case down to a federal district court for factfinding. The federal district court could find the freestanding innocence claim nonmeritorious. Or it could grant relief, the Eleventh Circuit could affirm, and the Supreme Court could decline review – once again avoiding a pronouncement on the explosively contentious freestanding innocence question. But Davis has certainly opened the door to the possibility of a seismic shift in habeas law.

Comments

[jrudkis]

So it is interesting because this case came about as a way to circumvent the restrictions Congress placed upon the Court pursuant to the powers Congress has under Article III of the Constitution?

Or perhaps more precisely, this case slipped through a hole that Congress has not yet closed?

"Because of constitutional concerns raised by this certiorari-stripping provision, in 1996 the Court ruled that it retained (among other types of authority) its original habeas jurisdiction to review the issues decided by circuit courts in authorization rulings. But until Monday, the Court has never actually exercised that jurisdiction. "

I am not sure where the clear text for this came from, unless it is simply based on a State being a party.

This seems to be a case that regardless of the outcome, Congress could shut off through its power to regulate what the Court hears, and therefore is not a significant belwether.

[kid bitzer]

could the congress shut off the court's original habeas jurisdiction by writing a new piece of legislation?

that seems to me to turn on how broadly you read the "exceptions and regulations" language of article iii.

if you read it broadly enough, then it would permit congress to put the supreme court out of business as an appellate court. completely out of business.

and this would be such a gross violation of any sensible separation of powers doctrine, that it constitutes a reductio ad absurdum of the broad reading.

instead, i think the "exceptions and regulations" clause has to be read as permitting congress to do some tinkering and tidying around the edges, but only in such ways as do not infringe on the court's essential powers.

an attempt to strip it of original habeas jurisdiction would be an attempt to strip the court, as it was understood to function in the english common law tradition that underlies the drafting of article iii, of one of its essential powers.

so i'm inclined to think that congress has no business trying to close that hole. that hole is called the separation of powers.

[Pawthorn]

Even so complete a psychopath as Scalia would balk at sending an innocent man to his death if the man were white, educated, republican.

[kovarsky]

"I am not sure where the clear text for this came from, unless it is simply based on a State being a party."

28 USC 2244(b)(3) states that "The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari."

In Felker v. Turpin (1996), the Court said this didn't preclude its habeas jurisdiction. This was actually a position that was sort of encouraged by parties on all sides. There were concerns that, otherwise, the Court would find the jurisdiction-stripping proposal unconstitutional under either the Exceptions or the Suspension clause. So it's not really true that Congress could shut this power off if it wanted to, because doing so would implicate aforementioned constitutional problems.

[Marty]

I appreciate this excellent legal argument.

I do not find though that there is a persuasive argument here that dismisses the legal basis of Scalia's opinion. It offers that:

The problem with Justice Scalia’s remark is with its implication

It also offers that a fundamental problem with Scalia's position is that the assumption of adequate protections at the state level, by any entity, is incorrect (actually absurd is the word he used).

Neither of these arguments demand that the court become the last arbiter of guilt and innocence based on this process. They are excellent arguments for promoting changes at the state level.

And, finally, he argues that DNA evidence

"brings us as close to “ultimate knowability” as we can come."

Although there is no DNA evidence in this case.

So my summary is that he believes that the court should change its long held position on reasonably meager changes in the reality around it, while Scalia dissents on perfectly solid legal ground. Which is where Scalia usually stands.

[Hartmut]

If the fear is that 'this opens the flood gates', that would be imo just another argument for doubling the court and dividing it into two equal chambers (as is done e.g. in Germany). The question is just how to fill those seats without allowing one side to 'pack the court'.

[kovarsky]

Marty,

Scalia's dissent is that this is a "fool's errand," because were the federal district court to find favorably on his exculpatory evidence, and determine that he was innocent, even then he could not get habeas relief.

But I believe even Scalia would find a way to use federal habeas if it were the only thing standing between an innocent offender and sodium thipentol. That's why Scalia spends some time trying to argue the claim is nonmeritorious. He doesn't want to be in the box whereby he's really saying that federal habeas couldn't operate to abort an unconstitutional execution; he wants to say that the execution is constitutional.

I noted that this was not a DNA case in the post. My point was that DNA evidence highlights a problem with the entire Bator paradigm - a proceduralist critique only makes sense within certain bounds of factual indeterminacy. Of course I can't tell you what the precise bounds of that range are, but I suspect that the evidence here is pretty overwhelming if Alito and Roberts signed off on the order. And as I point out in the post, this isn't any garden-variety procedural order; it is literally without precedent in the last 85 years. The evidence must be pretty compelling.

I do not think state process is per se flawed; I just think there are enough indicia of unreliability to compromise the federalist intellectual framework upon which Scalia's dissent is built.

Finally, you indicated several times that my arguments are good ones for state reform, but not for using federal habeas as a means of vindicating freestanding innocence claims. Why are the two mutually exclusive? Of course you can argue that state reform is a better way of addressing the underlying problem (in fact, I wholeheartedly agree), but that doesn't mean the argument can't support both institutional strategies.

[jonnybutter]

Thanks to Publius and Kovarsky for all this. Nit pick for Kovarsky: what is an 'innocent offender'?

To my knowledge, nobody has mentioned the Osborne case in this discussion. Anyone care to defend the majority decision on that one? More Federalism Fetishism, if you ask me.

[Marty]

kovarsky,

My apologies, as the subject was debated at a more heated level elsewhere I was actually trying to make the point that Scalia wasn't way out of bounds.

That said, I confess to not having read the majority opinion here so I will stipulate the facts of potential innocence were overwhelming.

I believe you are correct that in other circumstances Scalia may find a way to use habeas as you describe.

I find (particularly with Scalia and Ginsburg, who I must admit are my favorite justices) that the minority opinion is more often where their predispositions are reflected in their writing. However, they are consistent as a rule in their views of the law.

As far as state versus habeas remedies, I am intuitively against most things that expand the direct control and direction of the states by the federal government, so I would prefer the appointment of judges etc at the state level to reduce the risks you rightfully point out.

I am not against the combination of those remedies in specific, I am not able to judge the unintended consequences of it though.

[ericblair]

Here’s the rub. Under that paradigm, the question of whether someone is “actually innocent” is incoherent, because it presumes a god’s-eye view of guilt that is not tethered to the judicial processes that produce that verdict.

Not a lawyer, but an engineer here, saying: wow. This seems to be a hardcore postmodernist argument with pretty far-reaching philosophical implications, and seems to have been created by theorists who have spent far too much time gazing at their own navels. It seems to place legal reasoning as the Ultimate Truth and everything else as a pale shadow.

There is a whole branch of decision analysis that seems to have been tossed out the window here. In the technical world, we assume that there is an objective reality that is measured in some way and decisions are made which may be incorrect or non-optimal. The goal is to minimize this error. Assuming that the decision itself is now the reality and the original event under measurement doesn't even exist puts you well beyond any of the weirder quantum interpretations I know of.

As an outsider, this kind of thinking scares me since it seems to forget that the legal system is a tool for a purpose, not an end in itself. If there is a real chance that an innocent person may be put to death for something he didn't do, that takes precedence over any pretty legal theory.

[jdkbrown]

"Under that paradigm, the question of whether someone is “actually innocent” is incoherent, because it presumes a god’s-eye view of guilt that is not tethered to the judicial processes that produce that verdict."

Good god! Scalia is a Rortian!

[kovarsky]

jonnybutter,

I mention Osborne in the post, actually. I think most in the capital defense community expected that result, especially after argument. For readers unfamiliar, Osborne was a case about whether there was a 14th Amendment Due Process right to obtain potentially exculpatory DNA evidence that the state possessed.

I think Osborne was wrongly decided. Having said that, and not wanting to get into the weeds, that decision came about as a result of a lot of bad facts. One could have imagined a much better test case for the access-to-DNA question. I will say this - Osborne was globally premised on the idea that Alaska is happy to provide that evidence to anyone that needs it, and that premise was grossly inaccurate.

As for what an "innocent offender" is, that's a tougher question than it seems. I think Publius used the term "100% innocent offender" because he's looking to talk about a situation where a state is going to execute someone that has been convicted but that, for whatever reason, is with 100% certainty not the actual offender. I find the most honest analytic approach to the issue to involve likelihoods of innocence or guilt, since I do buy into the whole idea that there are epistemic limits on human inquiry. I part ways with the proceduralists (Scalia and Bator) because I don't think these limits are really sufficient justification for many limits on habeas review.

"Actual innocence" is a term of art in habeas law. Habeas claims are constitutional in nature - representation violated the sixth amendment right to adequate assistance of counsel, the prosecution unconstitutionally withheld exculpatory evidence, my confession was coerced, etc. Those claims don't always go to innocence; a lot of time they're "just" procedural defects in a conviction that violate the constitution. The term "actual innocence" is there because, in many situations, in order to proceed with habeas litigation, an offender needs to couple that constitutional claim with a claim that (s)he did not actually commit the crime for which (s)he was convicted. "Freestanding innocence" describes a situation where an offender makes the actual innocence claim, but without the accompanying constitutional claim.

[jonnybutter]

the subject was debated at a more heated level elsewhere I was actually trying to make the point that Scalia wasn't way out of bounds.

Mea culpa, Marty. I just frequently find Scalia's opinions appalling, especially this one, and wanted to know how you would rule on this matter were you on the Court. I didn't mean to say that Scalia had no argument, but that preventing the execution of someone you know to be innocent trumps any argument, tremor or no.

I also wonder

[jonnybutter]

I mention Osborne in the post, actually

oh god, sorry. I read it before coffee...

gotcha on the 'innocent offender' bit. Unfortunate phrase, though. Reminds me of the Japanese criminal justice system: if it's decided that you will be prosecuted, you are guilty....

[Marty]

"Mea culpa, Marty. I just frequently find Scalia's opinions appalling, especially this one, and wanted to know how you would rule on this matter were you on the Court. I didn't mean to say that Scalia had no argument, but that preventing the execution of someone you know to be innocent trumps any argument, tremor or no."

I know that I, and believe that Scalia, based on a 100% certainty of innocence, would vote to prevent an execution. As I stated above, I haven't read the actual eveidence of innocence provided so I can't say.

[kovarsky]

Re: whether Scalia would execute an offender "known" to be innocent.

The biggest case in this area is Herrera v. Collins (1993), where the Supreme Court decided absolutely nothing, but delivered a set of fractured opinions that staked out various spots in this debate.

The Court denied relief, and expressly reserved the freestanding innocence question. It just held that, even if such relief existed, the petitioner in that case couldn't meet the threshold for obtaining it.

In his concurrence, where Scalia expressed the same view that he expressed in his Davis dissent, Scalia wrote: "With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today's opinion requires would fail to produce an executive pardon." It is on that basis, along with what information I've been able to gather from past clerks, along with instincts about the way he judges (bush v. gore was realpolitik to him), that lead me to believe that - if habeas were really the only way to avert an unconstitutional execution - he would grant relief.

[Bob Johnson]

Could the president pardon Davis? Should Perdue?

Can the president commute all death penalties to live without parole?

[Ginger Yellow]

"What we mean by "guilty", Bator argued, is that some quantum of reliable procedure has produced a legal determination that someone has committed a crime"

In that case, a diligent person following Bator rigidly would have to admit that Davis wasn't guilty. Every study ever done has found that eyewitness testimony is profoundly unreliable. The only evidence that Davis committed the murder was eyewitness testimony.

[wj]

One obvious flaw in applying Bator's ideas to this case. Even supposing it is impossible to determine guilt absolutely, that doesn't mean that it is impossible to prove innocence absolutely. For example, you may argue that DNA evidence has a 1 in several billion (or more) chance of giving a false positive, i.e. identifying the wrong person. But that is not at all the same as saying that it has any chance at all of giving a false negative, i.e. saying that a person is NOT the source of the sample when he actually is. Or, if you prefer, I may not be able to prove you were at the location where the crime was committed; but I may well be able to prove that you were actually somewhere far away (and thus could not have been there).

And that makes Scalia's position on this case (or anyone taking the same basis for opposing the Court's action) utter nonsense.

[jonnybutter]

100% certainty of innocence

Well, that's the problem, isn't it? The question is still being ducked (and I helped you duck it by saying 'know to be innocent'). If neither you nor I nor Scalia can ever know with 100% certainty that someone is innocent...

This stuff makes my liver quiver because I'm just skeptical of the assumption that the Law - particularly case law - is necessarily 'Majestic'. In an American kind of system, majesty (but not jurisdiction) has to be earned just like any other kind of respect. It's not well to forget that. I've watched for years as reactionary politico-cultural value judgments have been rationalized via legal arguments (e.g. the assumption that AK *wants* to share all evidence with a defendant in Osborne, not to mention the majority opinion in Bush v Gore), and have sometimes wondered if we are mumbo jumbo-ing ourselves to death, here. As i mentioned yesterday, and as was restated upthread, the Law is a means to an end, not an end in itself. Complexity may be unavoidable, but I often get the feeling that it's used as a tool to get the politico-cultural result desired rather than being really necessary.

I'll shut up now and just read.

[Bob L.]

In response to Mr. Orwell (aka ericblair): The underlying assumption of the legal system in the US is that the process of trial and appeal winnows out the "real" truth from all competing versions, but just as any scientific theory has as one of its characteristics the potential of falsification, so the judicial system cannot claim to produce The Truth, only an approximation to it. The corollary is that as you get higher and higher in the system, and as the winnowing gets ever finer and the approximation to truth ever closer, the burden of falsification becomes ever more difficult. But the curve remains asymptotic to The Truth, never actually getting to the point that all can know it is so.

Scalia is of the apparent belief that there is no more winnowing to do when a case hits the Supreme Court -- unless it can be shown that there was something wrong with the winnowing process, in which case you change the process as the way of getting it right. By the time the case gets that high, the only way to get a reversal is to establish that some constitutional defect occurred in the proceedings. Or at least that's what I was taught in law school.

The majority in Davis now says that there is another way to attack the "truth" as established by the process, which is to show that the conviction rested not necessarily on a faulty process but on a NON-truth that resulted from that process. Scalia is quite correct in saying that the Court had never done this before. Any implication that it had previously said the contrary is apparently false (I rely on more learned heads than mine for this point).

I've seen similar phenomena occur in other legal contexts. The novel decision triggers a spate of cases in which lawyers attempt to apply it to other situations. They all get slapped down. Things slowly return to normal. Every now and then someone comes up with a case that looks so much like the original winning one that he decides to take a shot. Most -- maybe even all -- of those cases also lose. In twenty years the professors look back and ask themselves whether the case is worth teaching, and it winds up in the margins of the casebooks. The ripples fade, then vanish, and all is placid again.

Let's all meet here in August 2029 and discuss how much of a difference this case made to anyone other than the defendant. It shouldn't take long.

[kovarsky]

"Most -- maybe even all -- of those cases also lose. In twenty years the professors look back and ask themselves whether the case is worth teaching, and it winds up in the margins of the casebooks. The ripples fade, then vanish, and all is placid again."

That's why I called it a "tremor." The unspoken implication was that we cannot yet tell if there's a quake to come.

[jrudkis]

"that doesn't mean that it is impossible to prove innocence absolutely."

I don't think this follows: How do you have absolute proof that the DNA sample itself is relevant, or the only available DNA at the crime scene, or that the test was performed correctly, or that the expert read the results right, or that the samples weren't switched?

Absolute proof of innocence is as hard as guilt.

[kovarsky]

jrudkis,

I believe you can't prove innocence "absolutely;" But I do believe you can prove it with a degree that approaches epistemic certainty, and that in those instances that should be enough for our criminal justice system.

For example, cross-racial rape/murder cases are notoriously prone to being decided on bad evidence. In a lot of instances, a conviction is based on a serology or blood sample from the crime scene that puts the defender within some still-relatively-broad category of potential offenders (7%, 10%, 25%, whatever). But with DNA evidence, you can prove that crime scene DNA (semen) in a rape case has only a 1 in 1 billion chance of belonging to a defendant. If that is indeed the result, then of course it's not "absolute" if I were teaching a philosophy class, but it's close enough that it should be treated that way for legal purposes.

[Sebastian]

Mildly off topic--DNA's as the gold standard of evidence may be passing. It has been demonstrated that DNA can now be faked. I predict not-good things from this in the future. We'd best get a handle on the unscrupulous prosecutor/ prosecutorial-oriented forensic specialist problem sometime very soon.

[kovarsky]

"Mildly off topic--DNA's as the gold standard of evidence may be passing. It has been demonstrated that DNA can now be faked. I predict not-good things from this in the future. We'd best get a handle on the unscrupulous prosecutor/ prosecutorial-oriented forensic specialist problem sometime very soon."

With DNA evidence, like any other biological evidence, you'd have to prove indicia of reliability - like chain of custody, etc. I think that should assuage some of the worries. I'm think the worry is less about the fabrication of DNA evidence than the fact that its usefulness is difficult to grasp for different categories of criminal cases.

[Bob L.]

Prof Kovarsky -- I was so focused on attempting a response to ericblair's point that I neglected to tell you how informative and even enjoyable your post was. I've rarely seen a clearer explanation of such a complicated subject. Thank you for sharing it with us.

And I certainly agree with "tremor" as an apt metaphor for what has occurred. I hope you won't mind if I steal it for use in an appropriate context.

[hilzoy]

Thanks for this -- it's fascinating.

[kid bitzer]

having made a fuss at your departure, hil, i can't tell whether it would better to ignore your return and risk seeming insincere, or make a second fuss and risk seeming obtrusive.

so i'll opt for what i hope is a discreet, unfussy "great to see you again!"

[jrudkis]

Prof Kovarsky,

"I believe you can't prove innocence "absolutely;" But I do believe you can prove it with a degree that approaches epistemic certainty, and that in those instances that should be enough for our criminal justice system."

Doesn't this actually raise the bar? Shouldn't we want to argue that the new evidence is enough, as a matter of law, to create reasonable doubt? Having to prove innocence (even after conviction) is a heavy burden, where the defendant has no where near the assets that the government had to "prove" guilt.

[hairshirthedonist]

Doesn't this actually raise the bar?

For what process?

[someotherdude]

ericblair,

Just to be fair, many folks who use postmodern/post-structural theories would probably see Scalia and the other “Absolutists” as deconstructing themselves, in an attempt to preserve an older set of power relations.

Truth can only exist if it being determined by the power relations they preserve.

[jrudkis]

"For what process?"

For remanding the case to a trial court to review the evidence. The USSC is not determining that the person is actually innocent: it is determining that there is sufficient new evidence to provide a fact finding court to look at the evidence. The standard at that court should not be that the person has to be actually innocent to be released, but that no reasonable jury with access to the new evidence could convict beyond a reasonable doubt.

It is the difference between "not guilty," and "innocent."

[The Crafty Trilobite]

That argument is dated in the era of DNA evidence. DNA evidence, while not that panacea many seem to think it is, brings us as close to “ultimate knowability” as we can come.

Scalia's opinions, even more than most Supreme Court opinions, focus on issues of logic and leave out facts that don't fit the pretty analysis (you can often pick up those facts in Stevens' dissents). Judge Patrick Higgenbotham once said that lawyers were the smart kids in college who hated math, and certainly most lawyers are much more comfortable with logic and semantics than with science or other hard-to-master fact issues. We learn early on that we can seldom out-expert the other side's expert witness -- but we can call attention to epistemic uncertainty and blunt his force.

Do this often enough, and you can become very cynical about supposed scientific certainties, especially if you are (as Scalia is) historian enough to be aware of once-authoritative junk science like phrenology, recovered-memory therapy, etc.

But whatever Scalia's psychological motives may be, I think you have given short shrift to Scalia's fundamental philosophical concern for institutional roles. The real question in this case was, who gets to decide questions like this. It's not just state versus federal courts, it's also about judiciary versus legislature and appellate versus trial-level courts.

All institutions make mistakes, and all large instituions make fatal mistakes from time to time. The Supreme Court has the power to intervene and stop a fatal mistake in the courts. A private citizen, handed that power, surely should jump in to save the innocent life. But it is not so clear that the Supreme Court should.

For exactly the reasons I just described, the Supreme Court is not especially qualified to judge whether DNA evidence is so reliable as to trump a jury. Judges are experts on law, not biology. No branch of the government is an expert in biology, but Congress can create a committee and hire expert staff. Congress is also the branch charged with setting broad policy. From a purely institutional standpoint, then, the Court should let Congress handle this issue.

Then too, the judiciary does two things: it administers the law, and it also strives to create justice, which sometimes requires bending the law a bit. But the job of creating justice despite law is best suited to the trial court level, because the trial court's decisions do not make precedent, and the trial court judge has the best view of the particular facts. This decision smacks of a free-floating authority to intervene in the name of justice. The more an appellate court does that, the less final and clear trial court decisions in all cases are -- which hurts the institution and everyone who uses it. So again, there's a problem.

There are counters, and ripostes, to all of these points, and I'm not saying the Court was wrong. But there are real concerns here.

[Marty]

"Well, that's the problem, isn't it? The question is still being ducked (and I helped you duck it by saying 'know to be innocent'). If neither you nor I nor Scalia can ever know with 100% certainty that someone is innocent..."

Sorry, I keep trying to answer this question, so I'll try again. I would have voted with Scalia and the minority in this case based on all the facts I do know.

I believe that it would have been hard to reach a level of certainty warranting the exception based on eyewitness testimony, original or recanted.

[kovarsky]

Marty,

If the question for the court was merely whether there should be a hearing to determine the value of the changed evidence, why would you vote with Scalia on the ground that the evidence is not good enough? It seems like the more reasonable approach would be to allow the factfinding and only then say, "well, if there's such thing as a freestanding innocence claim, this doesn't meet the bar."

You seem to be assuming that this ruling actually held that the evidence was sufficient to grant relief. But they only deemed it sufficient for a factfinding to determine if relief was appropriate.

[someotherdude]

Do this often enough, and you can become very cynical about supposed scientific certainties, especially if you are (as Scalia is) historian enough to be aware of once-authoritative junk science like phrenology, recovered-memory therapy, etc.

Does evolution and the biological and cultural truth, that whites/Europeans are the most civilized of God's creatures, fall under this regime of scepticism?

[Marty]

""Well, that's the problem, isn't it? The question is still being ducked (and I helped you duck it by saying 'know to be innocent'). If neither you nor I nor Scalia can ever know with 100% certainty that someone is innocent..." Sorry, I keep trying to answer this question, so I'll try again. I would have voted with Scalia and the minority in this case based on all the facts I do know.

I believe that it would have been hard to reach a level of certainty warranting the exception based on eyewitness testimony, original or recanted."

To be clear, I do not believe I have enough information to have cast a vote or supported either opinion. So I am giving the direct answer based on the facts I do have.

Earlier, I stipulated that the evidence of innocence was overwhelming in order to further a different part of the discussion. If that were true then I would have voted for the majority.

See sometimes I am not looking to decide, someone else has done that. I am trying to discuss how they decided, the challenges and open issues it creates.

So allow me to say that I find this particular topic fascinating. Crafty Trib has an excellent comment. others have great points, I don't have to cast a vote because I am not on the SC.

If that is dodging the question then I am officially dodging it.

[kovarsky]

Crafty Trilobite,

I believe the important institutional axis here is state versus federal court.

The judicial-legislative axis isn't really an issue because I think it's hard to dispute that a legislature is not suited to deciding the guilt or innocence of individual defendants.

The appellate-trial axis isn't really implicated here because the supreme court isn't assuming the role of factfinder - it sent the case to a federal trial court for factfiinding.

The issue is really about the comparative institutional competence of state versus federal courts in testing newly discovered, potentially exculpatory evidence. For the reasons I set forth in the post, I think there's now a fairly strong argument against the comparative superiority of state adjudication on that issue.

[Sebastian]

"Does evolution and the biological and cultural truth, that whites/Europeans are the most civilized of God's creatures, fall under this regime of scepticism?"

No but it turns out that bite mark analysis, some forms of trace evidence analysis, possibly ballistic matching, dog sniff evidence, definitely some arson investigation, and definitely recovered memory techniques are all questionable.

I personally would take that as evidence the opposite direction from how Scalia seems to though.

[Marty]

Prof,

"You seem to be assuming that this ruling actually held that the evidence was sufficient to grant relief. But they only deemed it sufficient for a factfinding to determine if relief was appropriate."

Thanks, my next comment was more accurate as to both what I think and my awareness of my lack of having all the facts.

However, thus the "fool's errand". My question being, at the end of the fact finding who decides if the remedy is appropriate?

[hairshirthedonist]

For remanding the case to a trial court to review the evidence. The USSC is not determining that the person is actually innocent: it is determining that there is sufficient new evidence to provide a fact finding court to look at the evidence.

Okay, but that's a different process than what the fact-finding court, itself, is doing, right? And it's different from the trial-court process.

The standard at that court should not be that the person has to be actually innocent to be released, but that no reasonable jury with access to the new evidence could convict beyond a reasonable doubt.

But if someone is known to be (for argument's sake) innocent, that would certainly be new evidence that would prevent a jury from convicting beyond a reasonable doubt.

I think the issue here is that you can't assume that what a trial court decides is as good as it gets in knowing things when something comes along that lets you know things to such a degree that you absolutely must doubt the decision of the trial court. That's the bar for the SC: seeing something that gives a degree of certainty that forces them to question the trial court decision regardless of the correctness of the process. The 1-in-a-billion certainty in the DNA example would meet that. That's not even to say that that's the bar. It's to say that it's certainly above the bar, though.

But you know, I'm no lawyer, so I could be totally off here.

[DecidedFenceSitter]

From a 3L friend of mine: Professor Dershowitz's Challenge to Justice Scalia, which had this wonderful line -

Let us be clear precisely what [Scalia's dissent] means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: "Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she's dead, and as for you, Mr. Innocent Defendant, you're dead, too, since there is no constitutional right not to be executed merely because you're innocent."

[jrudkis]

"That's the bar for the SC: seeing something that gives a degree of certainty that forces them to question the trial court decision regardless of the correctness of the process. The 1-in-a-billion certainty in the DNA example would meet that. That's not even to say that that's the bar. It's to say that it's certainly above the bar, though.
"

Right. The process already occurs in appeals (and sometimes trials) where the judge looks at the facts as determined by the jury, and determines that as a matter of law, the facts were not adequate to find someone guilty beyond a reasonable doubt.

The difference here is that we are looking at new evidence that was not seen at trial.

So all I am saying is that the standard for the new evidence should be the same as the original evidence: that no reasonable jury could determine guilt beyond a reasonable doubt. This is a much lower bar than determining actual innocence.

[kovarsky]

DecidedFenceSitter,

I think Professor Dershowitz is mostly correct. There are actually a couple of nested questions here:

(1) Is there a right to not be executed if you're innocent/right to a federal forum to test newly discovered evidence of innocence that makes guilt less probable (depending on which frame you choose); and

(2) If there is such a right, do you have a constitutional or statutory entitlement to a federal habeas remedy?

If the answer to both those questions is no, and you're still in the Dershowitz scenario, I just don't believe Scalia would really let the guy die. He just doesn't want to be in that box right now, and apparently doesn't think this case puts him there.

[Mark]

Fencesitter - absolutely brilliant! Scalia says "va fangulo"

[Jim]

If, as Scalia posits, the law requires that a clearly innocent man be executed, then, as Mr. Bumble posits, the law is a ass.

[arlopop]

The most interesting examination of Scalia's argument I've seen came today from Alan Dershowitz.

If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”

http://www.thedailybeast.com/blogs-and-stories/2009-08-18/scalias-catholic-betrayal/

[ericblair]

Bob L: The underlying assumption of the legal system in the US is that the process of trial and appeal winnows out the "real" truth from all competing versions, but just as any scientific theory has as one of its characteristics the potential of falsification, so the judicial system cannot claim to produce The Truth, only an approximation to it. The corollary is that as you get higher and higher in the system, and as the winnowing gets ever finer and the approximation to truth ever closer, the burden of falsification becomes ever more difficult. But the curve remains asymptotic to The Truth, never actually getting to the point that all can know it is so.

From a technical, mathematical perspective, this is not true. You can't universally say that as the difference between iterations gets arbitrarily small you're any closer to the target value; you could be arbitrarily far away from the target, or the target value may not even exist (which, incidentally, is often why you're doing this mathematically in the first place). The original statement relies on several properties of what you're trying to measure, and I severely doubt that anyone can state that the search for Truth meets any of them.

What you can say in engineering terms is that you've reached a stable state given the inputs to your system, but not that you've converged on the solution you're seeking.

[Gary Farber]

"I find (particularly with Scalia and Ginsburg, who I must admit are my favorite justices) that the minority opinion is more often where their predispositions are reflected in their writing."

Isn't that true of every SCOTUS justice ever? By necessity, a majority opinion is a compromise document. If you're writing an individual dissent, or individual concurrence, you're simply writing your own opinion, and if you're joining in a dissent, you still have less need to compromise, because you don't have to accomodate at least four other people, and the results matter less anyway.

"Could the president pardon Davis?"

As previously discussed in the previous thread: no. The president has no power over state judicial proceedings. The president's power of pardon or commutation only go to the federal judicial system. Only the governor of the state does.

"Every study ever done has found that eyewitness testimony is profoundly unreliable."

This is a point always worth emphasizing in a lay discussion, as it's a point still not commonly known to the public at large, and it's counter-intuitive to what most people seem to think.

"Let us be clear precisely what [Scalia's dissent] means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side"

But maybe the proof that she's the same person as his allegedly murdered wife has been falsified!

I sense thriller movie pitch!

[Pithlord]

I agree with Scalia that the SCOTUS must necessarily be considering the state process. I just don't see how it matters. If the state process allows a certainly-innocent person to be executed, then it is certainly flawed process.

[Ginger Yellow]

" Only the governor of the state does."

And in Georgia, not even him/her. Only the board of parole and pardons.

[Hartmut]

I sense thriller movie pitch!

Old hat. I could name several examples of this from literature (both fiction and nonfiction*). Usually it involves close relatives, esp. identical twins, or doppelgänger. The murderer impersonating the victim is a sub-group of this scenario of (by?) its own.

*e.g. a real-life case from medieval China.
And it's an interesting side aspect of the "False Dmitry" case in Russian history (if the tsarevich was genuine, as falsely testified to by the mother, then Godunov could not have been guilty of murder; and if he was guilty then the tsarevich must have been fake).

[rea]

Called upon to rule on whether an innocent man ought to be executed, Scalia asks "What is truth?" and then calls for a bowl of water in which to wash his hands . . .

[A.J. Hill]

I have to concur with the remarks of ericblair and with his intellectual revulsion at some of the implications of these arguments. To note the imperfection of human knowledge is one thing. To jump from there to a prejudice in favor of some procedural result over potentially dispositive empirical evidence is quite another. I've heard arguments (in other fora) that executing a convicted person without providing habeas relief might be justifiable solely in order to preserve the idea of jury infallibility. This isn't just wrong; it's obscene.
I don't think that Justice Scalia is psychotic, as another respondent asserted, but I do think his enthusiasm for an inflexible, archaic reading of the Constitution, like his opinion in this case, is an invitation to mischief.

[A.J. Hill]

Another fine comment by ericblair. Few of us would deny that human events are essentially chaotic, which makes his caveat about an asymptotic approach to truth even more apt.

[jonnybutter]

I don't think that Justice Scalia is psychotic, as another respondent asserted,

FWIW, if you're talking about me, I said he was sociopathic. Different from psychotic. I don't think he psychotic either.

This has been a very informative thread, thanks to the professors (pub. and Kov) and others; Trilobite and Marty especially have made it interesting by mounting a defense of Scalia's reasoning. I am not discounting the value of an informative discussion at ALL (particularly when I personally have so very much to learn about the topic at hand!).

But this event is ultimately about making a decision in this case. I find it hard to believe that the justices in the majority were unaware of or even unsympathetic to Scalia's reasoning. This is about the decision itself, and whether Scalia would've come down the same way had he not known he would be in the minority. We don't know the answer to that, but I have a good guess...

[-R.]

Hi Goober,

Love your post. Very hot. But now that you’ve had a chance to bask in the glow of the decision, I’m pretty sure you owe me your firstborn child, since it’s been established that my “naïve optimism” about the of-course-ability of an original reach occurring within our lifetimes—nay, our youths!—has clearly kicked the ass of your previous determined pessimism as to the same. So pay up. (And no, all of those pennies you lobbed across my desk at me whilst engaging in this debate do not count toward the payment. I think I should at least get your personal copy of Liebman out of this, complete with your certain-to-be endearing scholia/marginalia.)

[Gary Farber]

"Hi Goober"

Does anyone know what this whole comment means, or who it's addressed to? Or is it just me that finds it ncomprehensible?