This is brought to mind because fresh off his recovery from the vapors over the sight of people lawfully carrying firearms during peaceful protest, Papa Shea, relying on the rantings of a leftist blog, has consigned Justice Antonin Scalia to the flames for the offense of not tearing down all the laws in England to get at the Devil.
Shea's drunk the kool aid for a convicted cop-killer by the name of Troy Davis. Troy Davis shot Savannah, Ga. police officer Mark McPhail in the face and torso as McPhail tried to keep Davis from fleeing the scene of a fight. After the killing Davis changed his shirt and fled to Atlanta. The night prior to killing Officer McPhail, Davis shot a man at a party, wounding him in the jaw. Bullet casings from both shootings were recovered and were found to have been fired by the same gun. Nine (yes, nine) eyewitnesses testified that Davis was the shooter in McPhail's murder. Davis himself admitted being present at the scene, while denying shooting McPhail. He claimed at trial that the witnesses were lying about his involvement, the same claim he is still making years later, a claim rejected by the jury and every court which has considered it.
The jury found Davis guilty of the murder and imposed a death sentence.
Years after the fact, as is common in such cases, teams of defense investigators and anti-death penalty activists have obtained affidavits from seven of the nine witnesses back-tracking from their sworn testimony at trial.
Interestingly, none of the recantations state that Davis did not murder Officer MacPhail; they merely claim now that they were not sure of the shooter's identity. All but one of the “recants” state that the original statements they gave were prepared by the police based upon their oral interviews and that they signed them without reading them. However at trial they testified that these statements were true.
And of course, it remains that two of the original witnesses still positively identify Davis as the killer.
Armed with these convenient recantations, Davis began his appeals, first in the Georgia Supreme Court which found "the evidence supports the conviction on all counts." Davis lodged a habeas corpus petition in state court, alleging in part that there was evidence presented at trial that another person shot McPhail. The state court denied the habeas petition, noting that the jury's role was to resolve conflicting evidence and that their verdict was supported by sufficient evidence.
These state courts considered his claims of actual innocence and rejected them.
Davis next turned to federal court and filed a habeas petition there, again alleging his actual innocence, which petition was also denied, the court finding “that because the submitted affidavits are insufficient to raise doubts as to the constitutionality of the result at trial, there is no danger of a miscarriage of justice in declining to consider the claim.” A federal appeals court affirmed this finding.
Now Davis has convinced the U.S. Supreme Court to direct that a federal District Court hold an evidentiary hearing on his innocence claim. It is this extraordinary and unprecedented procedure that led to Scalia's dissent, which states in part:
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.
It is this out-of context phrase, posted on the leftist blog, that made its way to Papa Shea's notice. And without bothering to read the entire dissent (see how easy that was to find!), or to consider the facts and procedural history of this case, Shea's substantial knee proceeded to jerk, and he raged that Scalia
argues that it is more important to execute the innocent than to stop the System from killing somebody the System has found guilty according to the System.Never mind that the blurb Shea is all upset about does not remotely say that. Never mind that the dissent no where states or implies that. Truth is not so important when you're throwing mud at the two observant Catholics on the Court (Justice Clarence Thomas joined in Scalia's dissent).
Let's keep it simple: There is not "a pretty good chance the guy is, you know, innocent." The state supreme court considered and rejected the possibility, the Georgia Pardons and Parole Board, which actually took testimony from the recanters, rejected the possibility, and a federal Court of Appeals considered and rejected the possibility. This actual innocence claim has been cooked up by Davis' lawyers with lots of help and publicity from the usual suspects in the anti-death penalty movement. It doesn't hold water.
Which is why Scalia is right for observing that this just a plain old state criminal case with no federal issue requiring more litigation. That Scalia objects to an activist majority on the Court finding any straw to grasp to keep this case from ending is hardly to suggest that he elevates the law above man.
It suggests that he, like most, believes that a fair trial, reviewed carefully on appeal and by the Executive branch of state government, and found to be correct, ought to result in the sentence being carried out.
There is no need to go tearing down the laws, as Shea wants Scalia to do, in order to do justice. "The System" is doing just fine.
Davis has had his day (his years, actually) in court and then some. Now let the jury have their say by letting justice be done at last for Officer McPhail's vicious murder.