Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Balko points to this article in the LA Times and it is an absolute must-read for those who care about due process and fixing the injustices of our criminal justice system. In the prosecutorial immunity case I wrote about last week, Scalia wrote a concurring opinion that cited a case that had come before the court in his second term as a justice, Arizona v Youngblood.
In that case, prosecutors had failed to preserve evidence in such a way that it could be used for testing that could prove a defendant's guilt or innocence by failing to refrigerate the victim's clothing and the evidence swabs. So when it came time to test the evidence, it could not yield usable results. That ruling also failed to hold prosecutors accountable for their negligence.
Here's what Scalia said about that case in his concurring opinion:
Since Thompson's trial, however, we have decided a case that appears to say just the opposite of the training the dissent would require: In Arizona v. Youngblood, we held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." We acknowledged that "Brady . . . makes the good or bad faith of the State irrele-vant when the State fails to disclose to the defendant material exculpatory evidence," but concluded that "the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant."
This is the kind of highly technical sophistry that drives a lay legal observer batty. Even if the Youngblood case was rightly decided -- and it wasn't -- it should not be applicable here. Scalia is willing to make a clear distinction between a failure to preserve evidence in good faith and a failure to preserve evidence in bad faith (without explaining how one would determine which is which, of course), but makes no distinction between a failure to preserve evidence that might prove a defendant's innocence and failure to turn over evidence that prosecutors knew would make it far less likely that they could prove a defendant's guilt. The latter can't possibly be done in "good faith."
More importantly, as the Times points out, the defendant in Youngblood was, in fact, proven to be innocent later on by new testing procedures:
Youngblood was sent back to prison in 1993, served his full term until 1998, and was later arrested because he had failed to register as a sex offender.In 2000, the Tucson Police Department agreed to conduct DNA tests that were more sophisticated than what had been available earlier. They pointed to the true perpetrator, Walter Cruise, a black man with a bad right eye who was then in a Texas prison serving time for two sex assaults against children. He pleaded guilty to the Arizona rape.
So Scalia is citing a case where an innocent man was sent to prison and then kept in prison by a court ruling he signed on to in order to justify not holding anyone accountable for sending yet another innocent man to prison. Balko's reaction:
Scalia is often credited for his consistency. But consistent or not, there's something pretty unsavory about a judicial philosophy that cites a ruling that we now know sent an innocent man back to prison as an authority to deny compensation to another innocent man who was nearly executed because the government hid the evidence that would have and eventually did exonerate him.Scalia has written in the past that there's nothing in the Constitution to prevent the government from executing an innocent person. He also apparently believes there's no duty for the government to preserve or turn over evidence that would prove a person's innocence. Finally, from Connick we learn he also believes that prosecutors and municipalities shouldn't be held liable to people who are wrongly convicted and imprisoned, either, even if prosecutors knowingly concealed the evidence that would have exonerated them...
The net result of these decisions is an extraordinary faith in government officials--in this case prosecutors--to do the right thing, even when there are strong incentives to commit misconduct to win convictions, and little to no sanction for those who caught doing so--even those caught committing rather egregious violations of the rules of criminal procedure or of a suspect's constitutional rights.
For Scalia (and Thomas too), the actual guilt or innocence of a defendant has no bearing on any constitutional value. Nor does either of them seem to care whether those who are charged with enforcing the Bill of Rights and the law in an impartial manner actually do so, as long as it hasn't been proven that they did so with "malice in their heart." And Jefferson wept.
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Actually, as the US justice system is designed, actual innocence or guilt of a defendant is not at issue. What is at issue is whether the prosecution can meet its burden of proof of the charge beyond a reasonable doubt. In that technical sense, then, Scalia is correct.
As famed defense attorney F. Lee Bailey put it in one of his books, "When a potential client comes to me and informs me that he is innocent of a charge, my response is to say that that's good to hear but, unfortunately, factual innocence is not a defense to the charge in court."
Posted by: SLC | April 5, 2011 11:43 AM
SO an innocent man would never run off because....?
Oh right he would face the charges honestly and then be happy with a system that will jail him so that the prosecution will look good politically.
Posted by: L.Long | April 5, 2011 11:43 AM
Scalia was recently involved in a traffic incident and fined for it I believe. I wonder if he would change his opinion if the ticketing officer had breathalyzed the bastard and accused him of DUI. Scalia in jail, especially wrongfully, would be sweet. Chalk it up to the new professionalism.
Posted by: MikeMa | April 5, 2011 12:01 PM
Why would the state want to try a person they had reason to believe did not commit the crime. Wouldn't it be in the state's and society's interest to find, punish and prevent a repeat by the actual criminal. I can only think of two reasons why those acting on behalf of the state would continue to prosecute a person they had reason to think was not guilty, gross incompetence or they had something to gain. Either way isn't this malice?
Posted by: Mr Ed | April 5, 2011 12:13 PM
I wish people would stop using the word justice in connection with our legal system. It is not the task of the legal system to see that justice is done. The only task the system has, is to reach a legal verdict. For justice we are dependent upon the law and moral and ethical values of the people administering the system.
Posted by: gski | April 5, 2011 12:14 PM
We're almost there. Two steps to go:
1) Absolute, unqualified immunity for prosecutors who totally fabricate evidence against a defendant to frame him.
2) An absolute bar on compensation by the State to that same defendant if somehow (like Youngblood) he manages to dig up the exculpatory evidence anyway.
Posted by: D. C. Sessions | April 5, 2011 12:21 PM
My understanding of Scalia's philosophy is that all anyone is owed is the minimum amount of due process. If that's satisfied by "good faith" or some other mealy mouthed excuse, then as SLC@1 stated actual guilt or innocence is irrelevant.
Posted by: Zippy the Pinhead | April 5, 2011 1:18 PM
While true, at issue is the goal of the system. Actual guilt or innocence are taken out of the equation because it was believed at the time that this would more often result in a just verdict. Now we have a group of attorneys and judges who believe their job is to follow the steps laid out like the steps in Dance, Dance Revolution, and that it is more important to maintain the machinery of the process than to efficiently and effectively fulfill the goal of the process. Unlike most of those cogs, the supreme court justices have a real opportunity to get under the hood and tweak the system.
Technically correct or not, Scalia reveals that he cares more about making sure the machine runs smoothly than he does about whether or not it fulfills its intended purpose. One has the image of a mechanic who has been brought a car because it pulls to the left, so he simply removes the wheels and returns the car, declaring that he has fixed the problem and it will never pull again.
If our legal system habitually results in injustice, then the system should be changed to result in greater justice, not so that it can more efficiently accomplish injustice.
Posted by: lofgren | April 5, 2011 1:28 PM
Mr. Ed, does it answer your question if I point out that most DAs and many judges in this country are elected? Their job is dependent on their conviction rate, not on whether or not they get the right guy.
Posted by: Ryan | April 5, 2011 1:53 PM
Mr.Ed:
It's in the state's interest to see that justice is done: the innocent freed and the guilty punished. It's in the DA's interest to see that the public sees that someone is punished for crimes. There is a difference, but it's only for those who pay attention that the difference actually matters. The something to gain is the perception of effectiveness and re-election.Posted by: natural cynic | April 5, 2011 2:04 PM
Totally par for the course for Scalia, and I'll second the motion that I'd love to see how he'd feel about a little "new professionalism" thrown his way. Oh, and natural cynic and Ryan, the blogger's name is Ed Brayton. Here in the US, we'd refer to him as "Ed" or "Mr. Brayton" (if you're nasty). Mr. Ed is a talking horse, so either you're looking for the Nick at Nite blog, or perhaps David Limbaugh?
Posted by: Rob Monkey | April 5, 2011 3:18 PM
so either you're looking for the Nick at Nite blog, or perhaps David Limbaugh?
Or they're responding to the commenter "Mr Ed" at #4. Just a wild hunch.
Posted by: Taz | April 5, 2011 3:32 PM
So, who's up for planting some weed on Scalia's property and calling the narcs with an anonymous tip? Maybe Steven Seagal can show up in the APC the SWAT team uses to serve the search warrant. And then run in, just for the cameras, and because watching Steven Seagal run is funny.
Just kidding. sheeesh
Posted by: Shawn Smith | April 5, 2011 4:28 PM
Oh balls, good catching me there Taz! Makes more sense now, although I've known a few people who, while proficient in English, still referred to people as "Mr. [First Name]," I think I just assumed that was happening. Or I'm just paying less attention to Dispatches than my lab work, which I guess makes me look smarter at work and dumber on the blog. Ah well . . .
Posted by: Rob Monkey | April 5, 2011 4:31 PM
Mr ed: Wouldn't it be in the state's and society's interest to find, punish and prevent a repeat by the actual criminal.
Yes, it would be. However, there's also a school of thought that holds that punishing _someone_ for a crime, whether or not they actually did it, has a deterrent effect, which is also in society's interest. Of course this deterrence will only happen if the general public believes the one convicted actually did it. This is why you hear some conservatives harping on about how it's terribly wrong to "destroy faith in the justice system" by allowing appeals, retesting old evidence, etc.
Posted by: Michael Crichton | April 5, 2011 4:56 PM
I wonder if he would change his opinion if the ticketing officer had breathalyzed the bastard and accused him of DUI. Scalia in jail, especially wrongfully, would be sweet. Chalk it up to the new professionalism.
I doubt it. These authoritarian hoodlums have an uncanny faith in traditional masculine stereotypes, particularly cops and the military. Uber-alpha types (or perceived types) make their pants all tight and turns them into fawning betas.
I see it over and over: The Republican dipshit legislative aide that we got to talk to instead of that self-loathing Pinche Vanilla--er, Henry Bonilla. This aide actually said before the Iraq fuckup that our soldiers were too professional to commit atrocities there. There was a deafening roar of hoots, snickers, guffaws and snorts that followed from the one-third of the group who were Vietnam vets.
Posted by: Aquaria | April 5, 2011 9:08 PM
Innocence is just a technicality.
Yup. It was once said that it was not enough that justice be done, it must also be seen to be done. Then someone realised that as long as justice is seen to be done, it doesn't really matter whether it actually is done or not, and framing the first sucker who comes along gets you on the tee quicker.
Posted by: Dunc | April 6, 2011 4:42 AM
"The only task the system has, is to reach a legal verdict. For justice we are dependent upon the law and moral and ethical values of the people administering the system."
For which reason the jury nullification system was installed.
Pity that the power egotripping of Judges so bemoans their subservience to any other...
PS on the whole "shouldn't the REAL perpetrator be punished", the other reason why is that AT LEAST that one person knows that the system will nail someone for his crimes and, now that the culprit is caught, HE IS COMPLETELY INNOCENT and NEVER DID THE CRIME. Legally speaking.
A double bonus.
He'll KNOW that he isn't being hunted for. He'll KNOW that the system is highly flawed. And as far as his record goes, he never did this crime.
Posted by: Wow | April 8, 2011 10:11 AM