"I offered up my innocence/I got repaid with scorn" -- Bob Dylan

Scott Horton at Harper's points out two recent cases that underline a central tenet of perhaps the the most powerful and pervasive factions in America's judicial history: the "movement conservatives" who largely congregate in the Federalist Society, and whose god and high priest is the radical extremist and torture apologist, Antonin Scalia. And what is that central tenet? That the need of the state to put its citizens to death outweighs and overrules the actual innocence of wrongfully convicted individuals.

The first cast Horton considers is "the appeal of Troy Davis, a Georgia athletics coach tried and convicted of the murder of an off-duty policeman working as a security guard at a Burger King. Following the conviction in 1991, seven of the witnesses who testified against Davis recanted, several of them fingering the last major witness to appear against Davis as the actual killer." Several lower courts, packed with "movement conservatives" rejected the pleas for considering the new evidence for innocence. But this week, the Supreme Court sent the case back to Georgia with orders to hear the damn case already and look at the evidence.

But this commonsense application of hundreds of years of Anglo-American jurisprudence sent Scalia into one of his patented hissy fits. In a stinging dissent, he wrote:

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.

As Horton notes:

In other words, Scalia’s Constitution does not guarantee a man who has been convicted and sentenced to death – but who is actually innocent – a review of his case.

Of course not. The right of the powerful and the privileged to cow the rabble with the ever-present threat of execution by an implacable state obviously takes precedence over milksoppy considerations like "justice." In fact, if the state is shown to have the power to execute demonstrably innocent people, that's all the better; the very irrationality of such an approach makes people even more cowed, more uncertain -- and thus less likely to upset the gilded applecart of their betters.

But the little godling is by no means alone in his bloodthirsty philosophy. Horton then cites the case of Sharon Keller, the top criminal judge in Texas, now on trial for refusing to accept paperwork for a stay of execution request, despite a Supreme Court ruling that day which called the convicted man's punishment into question. Her reason for refusal? The defense lawyers, who had encounted a computer breakdown, asked to submit their request after 5 p.m. Keller's answer? "We close at five." The man was killed.

As Horton notes, Keller too has been explicit in her belief that the state's judicial machinery of death is more important than innocence. He cites the NY Times:

In 1998, Judge Keller wrote the opinion rejecting a new trial for Roy Criner, a mentally retarded man convicted of rape and murder, even though DNA tests after his trial showed that it was not his semen in the victim. “We can’t give new trials to everyone who establishes, after conviction, that they might be innocent,” she later told the television news program “Frontline.” “We would have no finality in the criminal justice system, and finality is important.”

It certainly is. The power of the state rests ultimately on the finality of death, and its ability to impose it -- on its own citizens, and on the citizens of the world, whenever and whereever the dictates of domination and privilege require.

***

P.S.Of course, it's not surprising that movement avatar Scalia scorns the interminable workings of legal processes that gum up the power of the state. For Scalia believes that the state derives its power from God; it is His scourge and minister, and not some namby-pamby democratic assemblage of free citizens. As I noted in the Moscow Times yea these many years ago now:

Justice Antonin Scalia, who wrote the ludicrous and illegal ruling that appointed Bush to the presidency, declared in the theological journal First Things that the state derives its moral authority from God, not the "consent of the governed," as the Declaration of Independence would have it.

Rejecting that old reveler in licentiousness, Thomas Jefferson, Scalia proclaims that government "is the 'minister of God' with powers to 'revenge,' to 'execute wrath,' including even wrath by the sword." He rails against the "tendency of democracy to obscure the divine authority behind government" and "foster civil disobedience." Approvingly, he cites the Apostle Paul: "Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation." (Unless, of course, the Dominators need a "regime change" somewhere. Then the "powers that be" suddenly lose their divine ordination.)

A judge who believes that the state exists to "execute God's wrath by the sword," eh? Scalia would obviously be more at home with the jurisprudents over in Qom than in the heathenish precincts of a secular republic.

P.S.S. But as I noted here a while back, we should not scorn Scalia entirely. For in his public defense of torture last year -- in which he relied heavily on the venerable legal authority of Jack Bauer and "24" -- he actually provided us with an elegant mechanism for prosecuting Bush, Cheney, Yoo, Gonzalez and the whole gang for their crimes, without any messy "constitutional crisis" or the need for special prosecutors or any other extraordinary measure. I'm still waiting for some legal group - or even a local prosecutor -- to pick up the ball Scalia inadvertantly left on the ground and run with it. 

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scott douglas said:

	... “The Constitution that I interpret is not living, but dead.” Antonin Scalia, 03/25/09
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August 20, 2009
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Joe Ermigiotti said:

	... What a scumbag Scalia is. He and Keller should both find themselves on death row after being wrongfully convicted of a crime. But of course that would never happen, since they're part of the priestly caste ordained by god to lord it over the rest of us.
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August 20, 2009
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DeanTaylor said:

on the handing down of corrupt decisions... "The leaders judge for a bribe, priests teach for a price, and prophets tell fortunes for money. Yet they lean upon the Lord and say, 'Is not the Lord among us? No disaster will come upon us.'" Micah 3:11 from DemocracyNow: "Texas Judge on Trial for Refusing to Hear Appeal Hours Before Death Row Prisoner’s Execution": "The presiding judge of the Texas Court of Criminal Appeals is on trial for misconduct for refusing to hear a last-minute appeal from a death row prisoner scheduled to be executed that night. Judge Sharon Keller, dubbed 'Sharon Killer' by her critics, reportedly denied an appeal from the lawyers for Michael Wayne Richard at 5:20 pm on September 25th, 2007, saying, 'We close at five.' Richard was killed later that night by lethal injection. Keller faces five charges of judicial misconduct and could be removed from the bench." http://www.democracynow.org/2009/8/19/texas_judge_on_trial_for_refusing

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August 20, 2009
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Jimmy Montague said:

	Joe Ermigiotti just don't get it -- Joe -- it's impossible for Scalia to be wrongly convicted of a crime. You name it, he did it. There it is.
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August 20, 2009 | url
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Sean O'Neil said:

Scalia... scaly... like a snake A poisonous snake, a pit viper. I love how he stumps for "strict construction" and then construes the Constitution so strangely, in such a twisted fashion, that he is the very opposite of strict construction. Of course Scaly Tony knows that he's broadly interpreting the Constitution when he rules and opines as he does. What he's really trying to do is defeat any criticism of his opinions, by saying he's engaged in "strict construction." He's arguing that the naming should control -- not what he's actually engaged in, but what he calls it. This is one of the premier psy-op tactics of the post-WW2 era -- to do something, and then to say you're doing the exact opposite of what you've just done or what you're engaged in doing. It's a very close cousin to the Karl Rove tactic of accusing your critics of being or doing what you are, or what you are doing, as an anticipatory criticism. Again the goal is to shift attention from the malefactor's acts, and onto the malefactor's accusations or descriptions. Since most Americans aren't well-educated in rhetoric, debate or logic it's very easy for Scaly Tony and Rover the Mendacious Hog to get away with their craptastic spin.

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August 20, 2009
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el grillo said:

	... ........Unless, of course, the Dominators need a "regime change" somewhere. Then the "powers that be" suddenly lose their divine ordination. It can and often does happen that the Dominators themselves become the "powers that were".
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August 21, 2009
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Ilya Kuryakin said:

In your face! Just another example of the Empire saying "fuck you, whatchya gonna do about it?!" And it's not just Scalia, the whole freaking SC(R)OTUS are a bunch of degenerate ass-lickers - or they wouldn't be there in the first place! When this Empire's ship of fools crash into the reef they'll observe first-hand some "justice" of their own, at the hands of angry mobs. There won't be near enough Blackwater bodyguards to go around. Jack Bauer?? He's fucking Cinderella compared to what I would do to these jokers.

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August 21, 2009
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Jimmy Montague said:

Mr. Kuryakin -- We've already had a few previews of what will happen when the wraps come off. As it has been at the town-hall meetings of late, so it will be when law & order breaks down in America: Heavily armed right-wing "truth squads" will walk about town administering "justice" to those they think are traitors. Unarmed, left-wing "progressives" will hang from lamp-posts all over town because they refused to arm themselves while it was still possible to do so. Don't believe it? Hide and watch.

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August 21, 2009 | url
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Sean O'Neil said:

	... Ilya, what will you do when THRUSH has more power?
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August 21, 2009
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Ilya Kuryakin said:

Jimmy, do you honestly feel that what you have now in any way resembles "law and order"? Besides, the wingnuts are all talk. I am not in the US, so I can't speak about the "progressives" there, other than what I read on the "internets": I find the movement sorely lacking in backbone, and severely deluded. And probably, as you say, unarmed. However, my own little clique of "subversives" don't share this perversity... In any case, 3-4 years from now I'll be long gone (from Kanada), and settled on some sunny island (in Venezuela). I guess what I'm trying to say is: whatever happens to your Evil Empire after it implodes, you probably deserve it. No offense - YOU probably don't deserve it! But neither did the 2.5 to 3.5 million dead Iraqi's...while the so-called "progressives" were busying themselves helping The Rat Pelosi, the Vermin Obama, etc, "get out the vote". To be perfectly honest...my formerly fully-fueled empathy engine is running on fumes. Sean, how do you know I don't secretly work for T.H.R.U.S.H? Or KAOS for that matter? Plans within plans, as Frank Herbert would say.

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August 21, 2009 | url
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Jimmy Montague said:

I am not a progressive. I'm a liberal of the classical sort. I understand that the Weimar went down because citizens didn't have the guts to arm and organize themselves in order to whip Mr. Hitler's brown-shirt goons. You are sorely mistaken, Mr. Kuryakin, if you think the wingnuts are all talk. They are not. They mean what they say and they are prepared to fight. A great many of them are combat veterans of this, that, or another war. That they are deluded, that they are brainwashed, doesn't alter the fact that they are dangerous. In fact, it only makes them moreso. What it all comes down to is that the only way to beat them is to fight them. Those who are not prepared to fight will have to fight to save themselves regardless..

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August 21, 2009 | url
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Sean O'Neil said:

... Ilya, I'll talk with you -- but only if we can use the Cone of Silence. But seriously -- I understand what you're saying about the empathy tank being on empty. I also understand the comparative points you make about the Iraqis not deserving what they're getting, etc. What I don't understand is the breadth of your criticisms of progressives, or the ways in which you suggest that everyone in America ought to be paying for the crimes of a small minority of people. Me, I'm not even close to a "progressive," I don't identify on or with a Right-Left political spectrum. In an ideal world with ideal humans I'd be a total anarchist. But in the world we have, the humans who populate it, I'm just a jigsaw of various perspectives. If by castigating "progressives" you are criticizing people who proudly call themselves "progressives" and proudly voted for Obama, I'd wonder why you are being so pointed toward Chris Floyd or his regular reader-commenters -- like Jimmy. Jimmy's views are far more complex than you seem to give him credit. So are the views of most of the regulars here, I'd wager. I'd say if you wanted to find the "progressives" who need to be called on the carpet, you are in the wrong website. You'd be better off hanging out at firedoglake, Digby's Hullabaloo, The Huffington Post, or Glenn Greenwald's corner at Salon. That's where you'll find the "progressives" who are the deluded, arrogant apologists for Obamania.

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August 22, 2009
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Ilya Kuryakin said:

Sean, You misunderstand: the ass-lickers at HuffPo, DKos, Salon, TheNation, even "anti"war.com, etc, banned my ass long ago for exactly the reasons you mention. They are idiots and they are utterly clueless. As far as karma goes, being on the receiving end of an imploding Empire you are all very likely FAR better off than 90% of your victims...that's not so bad, is it? In the long run, you will get off cheap. If you're lucky, the wingers will secede into some backward Christo-Zionist mid-west Fascist state where they can in-breed themselves into extinction and finally be reclaimed as Lakota Nation; the brain-dead "progressives" will take the northwest and continue to be clueless and harmless; Mexico will take back their stolen property - California, Texas, New Mexico, Arizona, Nevada - they almost have anyway; Florida and the southeast will be the new Center For Anti-Democracy Terrorism In Latin America (no change there); Alaska repatriated to Russia; and the northeast absorbed into Kanada or, after the Palestinians reclaim their stolen land, the new "Israel". Kanada will probably have their own disintegration shortly afterward: Quebec will, finally, secede - as they should have done ages ago; Ontario and Manitoba will be the new NA industrial base; Saskatchewan and Alberta could very well merge with their Christo-Zionist counterparts to the South; British Colombia will supply the world high quality (legalized) weed; and the Inuits will take the rest. Greenland, after the glaciers melt, will be the Blackwater-defended, new home for the banking elites, Goldman Sachs boys, and the rest of the vermin. Venezuela will bail out Iceland and merge, becoming the planet's centers of culture and good music. Russia and Germany will form an economic union from which previously unimagined technologies will emerge. China will absorb Taiwan and the Koreas. Japan will collapse and become a Russian province. Hawaii will declare independence. India and Pakistan will implode into 15-20 statelettes. Persia (Iran) will form the greater part of the Middle East - which will become a true Socialist Democracy. The UK will split into three parts: Ireland, England, and Scotland - long overdue. Africa will merge into a super-state - at last! They deserve it. New Zealand will be the new Hollywood. The fascist Australia will decay as they no longer have US backing. The aboriginals will take the northeast, and the rest of the outback will be the world's internment camp for war criminals, child molesters, and such. France and Spain will merge into an economic union that will eventually become a state union. Yugoslavia will re-integrate and absorb Bulgaria. And so forth. Sounds nutty, right? ...until you look at world maps from 100, 200, 300, 400, 500, 600, 700...years ago...doesn't seem all that wacky now, does it?

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August 22, 2009
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Jimmy Montague said:

	I get it now, Sean -- He's a clown. Ignore him.
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August 22, 2009 | url
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Ilya Kuryakin said:

	Jimmy, I'm sorry that you took offense, or misread what I said. I thought my message was pretty clear.
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August 22, 2009 | url
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