Holy wow. Here’s something in the NY Times:
The Supreme Court on Monday ordered a federal trial court in Georgia to consider the case of Troy Davis, who is on death row in state prison there for the 1989 murder of an off-duty police officer.
Seven of the witnesses against Mr. Davis have recanted, and several people have implicated the prosecution’s main witness as the actual killer of the officer, Mark MacPhail.
The decision set off a sharp debate between Justices John Paul Stevens and Antonin Scalia about Supreme Court procedure, the reach of a federal law meant to limit death row appeals and the proper treatment of claims of innocence.
“The substantial risk of putting an innocent man to death,” Justice Stevens wrote in a concurrence joined by Justices Ruth Bader Ginsburg and Stephen G. Breyer, “clearly provides an adequate justification for holding an evidentiary hearing.”
Justice Scalia, in a dissent joined by Justice Clarence Thomas, said the hearing would be “a fool’s errand,” because Mr. Davis’s factual claims were “a sure loser.”
He went on to say that the federal courts would be powerless to assist Mr. Davis even if he could categorically establish his innocence.
“This court has never held,” Justice Scalia wrote, “that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”
I haven’t been following the case. I have no idea whether or not any of the evidence against him is tainted, or whether this is just the kind of thing that happens right about the time that a convict is due to be executed. But this statement is one of the scariest ones I ever read:
This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.
I can imagine a very large number of things the courts have never held. Unfortunately, I imagine, so can Scalia.