TheAgitator.com
Scalia and the Innocent
Monday, April 4th, 2011The L.A. Times delves a bit more into Justice Antonin Scalia’s concurring opinion in last week’s Connick v. Thompson Supreme Court decision, and finds that Scalia cited as authority a case in which SCOTUS sent an innocent man back to prison.
Scalia wrote a separate opinion citing the Youngblood case, which came to the court in Scalia’s second year on the bench.
The case began when a young boy was abducted outside a church carnival and brutally raped. He said his assailant was a black man with a bad right eye. Youngblood was a black man from the Tucson area who had a bad left eye. The boy picked him from a photo lineup.
But in a crucial mistake, the police failed to refrigerate the boy’s clothing and several swabs. Though Youngblood protested his innocence, forensic testing in the early 1980s could not determine whether he was or was not the perpetrator.
After two trials, he was convicted, but a state appeals court ordered him freed because the police had “permitted the destruction of the evidence” he needed to prove he was not guilty.
But the Supreme Court ruled the police and prosecutors had no duty to “preserve potentially useful evidence” for a defendant. The vote was 6 to 3, with Scalia in the majority.
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.
In last week’s opinion, Scalia cited the Youngblood case in arguing that prosecutors are not required to offer all the evidence that might free a defendant. “We have decided a case that appears to say just the opposite,” he wrote. “In Arizona v. Youngblood, we held that unless a criminal defendant can show bad faith on the part of the police,” the defendant does not have a right to obtain all “potentially useful evidence.”
There is no duty under the Constitution for prosecutors to turn over test results “which might have exonerated the defendant,” Scalia said, quoting the Youngblood decision.
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.
Those two decisions are based, respectively, on Scalia’s interpretation of the Constitution, and his intepretation of federal civil rights law, and you could make a strong case that neither conflicts with Scalia’s originalist view of the Constitution or his judicial philosophy about how to interpret the text of federal statutes. But in his time on the bench Scalia has also largely upheld and in some cases expanded the concept of absolute prosecutorial immunity. As former Bush Solicitor General Paul Clement pointed out in oral arguments for a case in 2009 is a concept that appears nowhere in federal law, common law, or the Constitution.
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. And keep in mind here that there’s no question that there were constitutional violations in these cases. The question in these cases is whether the people whose rights were violated are entitled to damages. Or even to see or test the evidence that could exonerate them.
“But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”
- Lysander Spooner -
So…never.
The constitution, much like the bible, can be open to different interpretation. Although the part of the first amendment that says people have the right to “petition the Government for a redress of grievances” is pretty goddamned clear.
It’s one thing to interpret things differently, it’s another to flat out ignore them.
I see these decisions as protecting government officials because they don’t have any faith in them.
Cases like this can be condensed down into a very basic idea, that when the government destroys someone’s life, they have an obligation to try and make that person whole. That is the fundamental essence of justice. The justice system in the U.S. is not dedicated to that premise, contending instead that it is not bound by the same standards that it holds others to.
The government, courts included, act more like something out of Kafka or Orwell, but people find that reality too intolerable to bear, so they adopt a a more palatable delusion. We try and explain decisions like this in that frame of reference, which insists that law enforcement and the court system cares about justice. It doesn’t.
Government is in the business of managing the riffraff.
ktc2 wins the thread already, quoting Spooner.
agreed, Tom.
I can’t imagine the horrors this man went through as he was ground up through the courts and the ‘justice’ system. I shudder to think of what prison was like for him. I hope he’s able to build a more satisfactory life.
Scalia deserves to be the recipient of some serious frontier justice.
Is there a legislative remedy then, if not a judicial one?
I don’t know if Scalia is right or not; but I’m quite sure there must be holes in the Constitution. It is troubling, but there’s a fix. We need to either pass laws or, in the extreme, amend the Constitution. Maybe that’s what people interested in the duty of government towards innocents should be agitating for.
I just got done reading the Reason article about Clement’s arguments against the concept of absolute prosecutorial immunity and it makes me wonder:
People who don’t have any doubts about prosecutor competence or honesty don’t see defendants as having ever been the same kind of human as they are. Where is compassion or empathy?
I fear that the media, who you’d think would love a sure ratings grabber like “prosecutors run amok (with proof!)”, just don’t care either. If it doesn’t affect them, they won’t take the time to raise a stink.
What does Scalia think the constitution is for?
“Government is an institution which prevents injustice other than such as it commits itself.”
- Ibn Khaldūn -
Is there a legislative remedy then, if not a judicial one?
In theory, I believe the answer is yes, and I too was thinking it might be time to focus on that remedy rather than a judicial one. Regardless of what one thinks the Constitution SHOULD protect, the reality is that it’s a last-resort defense, and one that we citizens have incredibly little control over. On the other hand, we do have control (relatively speaking, of course) over our state legislatures. Here in Illinois, the Code of Criminal Procedure is statutory so new rules are passed and old ones modified or repealed by the legislature. I see no reason why a state legislature couldn’t pass a law creating a statutory right to damages for prosecutorial misconduct. Obviously the chances of such a bill passing are slim, but unfortunately it appears the chances of the Supreme Court protecting such a right are equally slim.
Amen brother Radley.
I don’t see anything in there about receiving redress. Scalia didn’t order these jerks sent back to prison for daring to talk back to their betters, so I’m sure he considers their Constitutional rights satisfied.
Lawyers these days are afraid to raise the specter of Bad Faith when evidence gets “inadvertently” destroyed. Let’s be honest, if police review
the evidence (eg a video), and it’s not favorable, they destroy it.
If the have exculpatory evidence, and do not provide it, you do not
have to show Bad Faith.
If they lose/destroy the evidence, you have to prove there was Bad Faith.
Sounds like these factors provide a clear motivation to destroy evidence. How you gonna prove Bad Faith– break into the police headquarters and seize videos?
Bryant vs DC Appeals court addressed this and said there should be severe sanctions when evidence is destroyed “Inadvertently. (nudge, wink)”
(Government must make “earnest efforts’ to preserve crucial materials and to find them once a discovery request is made”).
Now you know why cops hate to be videotaped–they don’t get to
pick and choose what gets used as evidence or destroyed.
What is interesting is that these folks are just plain WRONG!!!! It is the duty, the absolute duty, of the justice system to serve justice. It is their utmost duty to assure innocence BEFORE going after the guilty. But the law schools and the system and the government and all the assholes with 2 mm dicks are the problem. No honor. No search for truth. Just a bunch of guys with little dicks and women with tiny titties who have to prove themselves every time. They need notches on their “guns” to prove themselves. They have no self-esteem and can only reach orgasm by abusing the rest of us.
I have been on Earth nearly 6 decades. I can almost count the number of honorable people I know on 1 hand.
I believe it should be law in each state that anyone who withholds evidence is automatically forced into prison for the remainder of the sentence the innocent person was given AND once out the ex-state employee or federal employee is forced to pay the innocent person for the injustice.
In a similar fashion, the grand jury have been coopted too. Grand juries are supposed to be the first defense. Now they are trhe first offense.
Our system is so fooked.
They keep a roll of it in the restroom.
You would hope that the very fact of the phenomenon we call “Scalia” (a phenomenon which transcends the man himself) would give pause to the big-L Libertarians who seem to think that some sort of “perfected” jurisprudential reading of the U.S. Constitution would judicially vindicate the sum total of the “Libertarian Agenda” and result in libertarian government without having to resort to politics.
Nota Bene: there is no one true reading of the U.S. Constitution that is going to make everything alright for Libertarians or for anyone else. Politics and the ugly parts of the democratic process is never going to go away.
Rereading the commerce clause is not going to save the country. Going back to Lochner is not going to save the country. Using an outsized notion of “property rights” as some sort of roving commission to strike down economic legislation from the bench is not going to save the country.
Libertarians are going to have to hold their noses and actually start participating in politics if they ever want to set a high-water mark above Ron and Rand Paul. That means setting priorities. And setting priorities means choosing what goes to the top of the agenda, as between on the one hand giving remedies to unjustly prosecuted persons and scaling back police militarization and, on the other hand, defunding ObamaCare and deficit-financed cuts to the capital gains rate.
Anybody who thinks you can “stay pure” and try to grab all of your agenda at once, I direct your attention to the “Scalia Syndrome,” and everything that it entails.
BEing consistently wrong and amoral is no virtue. But Scalia is not even consistent- if he were, he would never have joined the majority in Bush v. Gore. Which makes him doubly despicable.
Odd no one mentioned the sixth amendment. Does it not imply a right to exculpatory evidence if it exists?
All a libertarian has to do to see his agenda adopted is to change it into something adoptable. Republicans and Democrats do it all the time. Libertarians should be more like them. No one complains about how Republicans and Democrats are trying to stay too pure.
But, I have to agree with the nose holding part. If you want to be part of the American political process you better be able to stand the stench wafting off the mountains of decomposing integrity and honesty that will surround you.
#19- “Where does the word exculpatory appear in the Sixth Amendment? After all, the word exculpatory has been around since 1780 (http://dictionary.reference.com/etymology/exculpatory) and the Amendment was not adopted until 1791. Surely the framers would have used exculpatory if they wanted defendants to see it. But they didn’t so they must not have wanted to. Who are we to question the wisdom of the Founders?”/ From a Scalia opinion yet to be written.
So called conservatives claim to hate government, until it carries a gun. Then they can’t get enough.
#22 or until the government gives them benefits (but not to those nasty beaners, yuck!) or until the government entertains them by declaring war on someone/something different from them.
Scalia is not just stupid, he is insane. He has no ethics, and should be removed from the bench immediately. The only thing Scalia PROVES, is that “Judicial ETHICS” is an OXYMORON.
So Scalia thinks there is nothing in the Constitution to prohibit the government from executing an innocent person. Has he considered the possibility that its authors believed such a prohibition was so obvious that there was no need to explicitly spell it out? Ninth Amendment, anyone?
Scalia and the other cons on the court have no interest in justice. From Bush v. Gore, to Citizens United to this decision, their agenda has been obvious: government of, by and for the rich and powerful. The rest of us are expendable.
# #1 | ktc2 | “…. In either case, it is unfit to exist.”- Lysander Spooner -
The Constitution is an instruction manual that citizens are supposed to use to determine whether to assist government personnel in dealing with non-government criminals, or instead to tar and feather government-sponsored ones. If citizens fail to enforce the Constitution, it can have no more power than any other piece of paper.
Scalia took the correct side in this issue, as did five other Supreme Court Justices. This case should not have gone to federal courts, because there was no federal remedy. The Ninth Amendment does not cover this. The defendants had the right to trial by jury. That right was upheld. Prosecutorial misconduct at the local or state level is not a federal crime.
The federal government and the Constitution are not the solutions to all acts of injustice. In the reported cases, the failings were of state and local governments that did not adequately protect defendants in criminal trials. States, counties, and cities can and should pass laws that forbid police and prosecutors from destroying or hiding evidence. Some have done so. People need to urge their elected legislators to pass similar laws in their states and communities.
Scalia, I think, tries to follow the text of the Constitution, but he puts too much faith in the honesty of other government agents, and he adds an extra layer of proceduralism beyond what’s in the Constitution: the Constitution says right X must be protected, and the Court outlines some procedures which should be followed to protect right X; provided the procedures are followed, the right is deemed to have been protected. It doesn’t matter whether the people carrying out the procedures were making a bona fide effort to protect right X, or were instead doing all they could to violate right X while nominally following the procedure.
What’s needed is a fundamental recognition that following procedure may sometimes be prima facie evidence of good faith effort to honor rights, it is hardly dispositive proof. In many cases, determining whether someone’s rights were honored or violated will require evaluating witness credibility, a task which is properly reserved for a jury. Note that a jury need not examine all the minutiae of procedure to determine good or bad faith; in many cases, a simple question like “Was the cop making a good faith (reasonable and honest) effort to minimize risk or harm to persons and property” would suffice.
As for the notion of whether the Constitution would forbid the execution of someone who happens to be innocent, it forbids punishment of people whom the government should reasonably believe might be innocent, but cannot possibly prescribe absolute perfection in such matters. The problem is not that government is imperfect, but rather that government agents often fail to act in good faith. As above, the real question often shouldn’t be whether particular procedures are followed, but whether those in government are making a reasonable and honest effort to avoid convicting innocent people.
#27 | Dr. T | April 4th, 2011 at 6:32 pm “The defendants had the right to trial by jury. That right was upheld. Prosecutorial misconduct at the local or state level is not a federal crime…”
For the right to a jury trial to mean anything, it must also include a right to have the jury informed of any factual information which would be beneficial to the defense. If a judge or other government agent prevents the jury from hearing factual information that would have yielded an acquittal, then any resulting conviction comes not from the jury, but rather from the agent who blocked or withheld the information.
There may be legitimate arguments as to the extent to which the Constitution compels the federal government to protects people’s Sixth Amendment rights. My personal feeling is that one could legitimately hold that the Constitution protects rights narrowly or broadly, but one must be consistent. Given the level of federal involvement in so many other cases, federal protection of the Sixth Amendment would seem appropriate.
Lardy McOpusDei Scalia should stick to scarfing down linguine by the tonne and quit trying to pretend to be a legal ‘scholar’ – like Yoo, Addington, Bybee, Gonzales and Alito, he is just another of the scumbags who furnish sophistries to underwrite the basis for oppression and tyranny, in a stupid theatrical set-piece.
Show me the bit of the Constitution where it states – in black letters – that there is an explicit right of obese nutjob adherents to an extremist Catholic cult to be free from getting stabbed in the eye with a barbecue fork. I bet it’s not there.
That’s the Scalia Method right there; parse the document using whatever narrow reading is required to back the side of the people who put his obese ass in his lifetime sinecure.
Unless I miss my guess, Scalia needs to re-read the 8th Amendment; imprisoning a man who is innocent is unambiguously cruel and unusual, and deliberately withholding exculpatory evidence is the sine qua non of the convictions; BUT FOR the suppression or destruction of the evidence, the defendant would have been freed.
Only an ardent whip-kisser would ever try to embroider an argument that Youngblood, Thomson, Hamdi and the raft of other recent cases (and fuck, let’s go all the way back to Dred Scott) are consistent with a government that exists to protect the right of those forced under its thrall – and the fact that administrations do whatever they can to put ‘their’ people in vacant SCOTUS thrones, is prima facie evidence that the court is composed of political favourites.
It’s simply evidence that these robed asstards deserve a place next to the parasitic scum whose interests they serve – hanging by their feet in the town square.
However with that grotesque obese tax-trough-feeding Pussy Bonpensiero clone Scalia, it would be necessary to use a decent-gauge chain.
The problem with Scalia’s citation of Youngblood isn’t that Youngblood was ultimately found to be innocent. It’s that “bad faith” existed in Thompson’s case. The one attorney testified that the deceased attorney had given a deathbed confession to deliberately withholding exculpatory evidence. While Scalia may be convinced that the Court has never held that prosecutors must turn over all such evidence, it’s a stretch to claim they shouldn’t turn over evidence they know is exculpatory.
I would also question the assumption that prosecuting a man for a crime one knows he didn’t commit is a “core function” of a prosecutor…
There’s this little federal statute known as 42 U.S.C. § 1983, which provides a cause of action when a person’s Constitutional rights are violated by the government at any level. I’m not sure how that fails to qualify as a “federal remedy.”
Not everything in life needs to be spelled out. I will bet you that when I get on the subway tomorrow morning, there will be no twenty four foot letter signs claiming that I should not walk up to an old woman and say “Jesus Christ on a toasted bagel you old hag, why don’t you just cut your own throat instead of living your miserable shitty life you past-your-prime senile welfare queen?”
I will also bet you that someone will take exception to my saying the above.
Scalia is part of a culture that believes that they have no obligations, only rights and that they should do whatever they please as long as others don’t get to do the same.
#28: As pointed out before, the suit was premised on federal law. Also, ” The defendants had the right to trial by jury. That right was upheld.” See, its this sort of cretinous, stupid, fascistic, opportunistic parsing of the Constitution that demeans the cretinous, stupid, fascistic, opportunistic parsers of the Constitution. Only they could have rationalized that having a lawyer sleep through a trial didn’t deprive you of the right to counsel (which was overturned by the en banc 5th circuit), or that a lawyer who didn’t bother to say a word during closing arguments was effective (Scalia dissent) or that innocent is not technically a reason not to execute someone because after all, the Constitution doesn’t say the lawyer has to be awake, sober, literate, etc etc etc.
No innocent person should EVER be railroaded into a plea bargain, or convicted by a jury, due to lies and misconduct by police or prosecutor, yet it happens all the time. What was that old saying? “Better 10 guilty men go free than one innocent man go to prison”; or something to that effect. That used to be the ideal of our nation, now our governments (all levels) put hundreds of thousands of people, who’ve NEVER committed a real crime against any person or property, in prison for years and even decades.
There should be a law in every State and in federal law that clearly and unambiguously gives defendants a right to any and ALL exculpatory evidence, with serious penalties for LEOs and prosecutors who violate that right or engage in ANY kind of misconduct, and also allow for individual cops and prosecutors to be sued, personally (rather than suing the jurisdiction and making the taxpayers pay the penalties). God knows such a law is absolutely needed, (and I’m not one to call for new laws, since I feel we have far too many laws that violate the right of the People to live their lives without interference from their governments).
I personally love this case, lots of good stuff in it :)
Berger v. United States, 295 US 78 – Supreme Court 1935
of note is this
“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one”