Dershowitz Spanks Scalia

Speaking of crazy right-wingers, the Supreme Court’s resident lunatic has been up to his old trick again. Alan Dershowitz administers the proper spanking:

I never thought I would live to see the day when a justice of the Supreme Court would publish the following words:

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.

Yet these words appeared in a dissenting opinion issued by Justices Antonin Scalia and Clarence Thomas on Monday. Let us be clear precisely what this 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.”


  1. #1 SLC
    August 19, 2009

    I made the following comment over at Ed Braytons’ blog in response to a post on this subject by him.

    As I have stated previously on other blogs, the reason that all too many prosecutors and apparently scumbags Thomas and Scalia oppose reopening criminal investigations after a guilty verdict is returned is because, in their considered opinion, overturned convictions based on new evidence will make in harder in the future to obtain convictions. In particular, overturned death penalty convictions will make juries less likely to impose the death penalty in future cases. My reaction to those prosecutors and scumbags Thomas and Scalia is tough noogies. If they can’t stand the heat, they should get out of the kitchen.

  2. #2 Comrade PhysioProf
    August 19, 2009

    This is pretty rich coming from Alan “Torture Can Be A-OK” Dershowitz.

  3. #3 Tony P
    August 19, 2009

    Well since Scalia has offered to resign I say we hold him to it.

  4. #4 Takis Konstantopoulos
    August 20, 2009

    From Derschowitz’s article:

    Justices Scalia and Thomas, both of whom claim to be practicing Catholics, bound by the teaching of their church, to do moral justice. Justice Scalia has famously written, in the May 2002 issue of the conservative journal First Things, that if the Constitution compelled him to do something that was absolutely prohibited by mandatory Catholic rules, he would have no choice but to resign from the Supreme Court.

    I guess the issue of “morality” in relation to religion has little to do with real morality. But this is to be expected, isn’t it?

  5. #5 Art
    August 20, 2009

    They leave it as undefined simply because it is the jury, not an objective investigator or judge, that determines and defines innocence or guilt within our legal system. The legal system holds jury verdicts as pretty much sacrosanct. Irrefutable evidence of innocence after you have been convicted may lead to your release because the result points toward a failed legal procedure. But legally your freed because of the failed trial. Not because your innocent.

  6. #6 Joe Shelby
    August 20, 2009

    There’s more to the Constitution’s rights on Law beyond “due process”. I certainly think being punished for a crime I didn’t commit is the ultimate example of “cruel and unusual punishment”, which is also forbidden by the Bill of Rights.

  7. #7 Tony61
    August 20, 2009

    Thus the problem with promoting STRICT constructionists to SCOTUS. In the strictest sense, Scalia is correct about the Constitution.

    Like a physician who treats a patient’s lab test without examining them. “Yeah but, your hemoglobin level from yesterday says that you cannot be anemic”… while the pale, unconscious patient lies in a massive pool of blood that emanates from their rectum.

  8. #8 eric
    August 20, 2009

    I always thought strict constructionism was a bit of a paradox. The founders wrote an amendment process into the Constitution. Applying strict constructionism would require us to use that process as the founders intended. i.e. to change the founder’s original intentions as layed out in the other parts of the Constitution.


  9. #9 Trin Tragula
    August 20, 2009

    Surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally.

    Surely not. A person’s life is of no value compared to the eternal disposition of his soul (to a religion which believes in an eternal soul which receives eternal reward or eternal punishment). Surely “surely,” in this instance, is being used an an excuse for not doing one’s homework.

  10. #10 niczar
    August 21, 2009

    Scalia is a special kind of evil. When he makes a neo-Lebensraumite like Dershowitz sound like a humanist, you know he’s really waaaay out there.

  11. #11 SLC
    August 24, 2009

    Re niczar

    Scalia is a special kind of evil. When he makes a neo-Lebensraumite like Dershowitz sound like a humanist, you know he’s really waaaay out there.

    Mr./Ms. niczar is singularly misinformed if he/she is referring to Israeli settlements. Prof. Dershowitz has been opposed to the settlement activity since it began and has long advocated that the Government of Israel cease such activities.

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