U.S. Supreme Court Justice Antonin Scalia and Federal District Court Judge Fernando Gaitan of the Missouri Western District Court have at least two things in common: they are both appointees of President Ronald Reagan, and they both think it’s just fine for the US to execute innocent people. The same can be said for Judge C. Arlen Beam of the 8th Circuit Court of Appeals.
In a recent dissent in a 5-4 Supreme Court ruling ordering a habeas hearing in federal court for South Carolina death row inmate Troy Anthony Davis, a man slated to die after being convicted for the murder of an off-duty Savannah police officer, Scalia 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.”
For his part, Judge Gaitan, in Missouri, had two shots at considering the case of Joseph Amrine, a death-row inmate slated to die for the killing of a fellow prisoner in a Missouri state prison. Amrine had been convicted of the knife slaying on the basis of the testimony of three alleged eyewitnesses—all of them fellow prisoners. When two of those witnesses later recanted (suggesting that it was the third witness who had actually been the killer), Judge Gaitan rejected the habeas appeal, arguing that the two recantations couldn’t be believed, because the third witness had not changed his testimony. Later, when the third witness also recanted, Amrine’s attorney brought the case back to Judge Gaitan, but this time, the Judge again rejected the appeal, claiming that none of the witnesses was credible “because they are all criminals.” (Which of course begs the question of why Amrine should have been convicted in the first place based upon the testimony of the same three witnesses.).
Amrine didn’t get any help from the 8th Circuit Court of Appeals, which is also apparently packed with Scalia-like vampires. A three-judge panel on that court, which included Reagan-appointee Judge Beam, as well as Clinton appointee Diane E Murphy and George H. W. Bush appointee Judge Morris Sheppard Arnold, unanimously upheld Judge Gaitan, declaring that even if the three recantations might suggest Amrine was innocent, he could not get a new hearing or trial because his attorneys should have been able to discover the evidence earlier through “due diligence.” The judges, in rejecting Amrine’s appeal, wrote that, “even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently,” an appellate court had to defer to the determination regarding credibility of recanting witnesses made by a lower court judge.
That is, procedural issues and rules trump facts, even in a death penalty case.
Happily for Troy Davis, a frighteningly narrow majority on the US Supreme Court disagreed with Justice Scalia’s view of the Constitution. Happily for Amrine, who is now a free man, the Missouri State Supreme Court disagreed with both Judge Gaitan and the 8th Circuit Court of Appeals panel, concluding that “a showing of actual innocence acts as a ‘gateway’ that entitles the prisoner to review on the merits of the prisoner’s otherwise defaulted constitutional claim.”
Justice Scalia’s pinched view of the Constitution is that if it ain’t written down in the document, it doesn’t exist. So even though there is a clear outlawing in the Constitution against “cruel and unusual” punishment, he purports to be unable to see how that could be construed to include being executed for a crime you did not commit.
It should sicken every American that our judicial system could condone execution of people that even the judges themselves concede are likely or even certainly innocent, because of procedural rules and politically imposed deadlines and appeals limitations, such as those imposed by former President Bill Clinton’s Anti-Terrorism and Effective Death Penalty Act, passed in 1995 in the hysteria following the Oklahoma City bombing of the Murrah Federal Office Building.
I once had the grisly experience, back in 1995 in Xian China, of watching several doomed men being carted off by armed police in the back of a flat-bed truck for a date with a bullet to the back of the head. I remember thinking at the time what a monstrous and uncivilized act this was. The trials in China are in name only, with the verdict pre-ordained, and any appeals, if they happen, perfunctory.
Yet how different are things here in the US? There is the same bloodthirsty slathering for public execution by the ghouls on the right, the same quiescence among the broader population. There is, perhaps one difference, and that is the political pandering to the death-obsessed by politicians who should know better. Those Reagan-appointed judges—Scalia, Gaitan and Beam—and the many like them on federal and state benches across the country, were appointed precisely because they wanted to grease the skids to the execution chamber, and President Reagan, like Nixon before him and the Bushes after him, have made advocacy of state-sanctioned execution a lynch-pin of their campaign efforts. But President Clinton was no different. He cut short his campaign for president so he could rush home to Arkansas to sign the execution warrant for a mentally impaired man, and later, pushed through the EDP Act to make appeals of death-row inmates much more difficult.
President Obama is not much better. While he has not yet signed on to any efforts to make executions easier, neither has he acted, as president, to correct the current abysmal situation, which has seen many people spend years or even decades on death rows, often coming within days or hours or even minutes of execution before finally being found innocent, and which has surely led to many executions of innocent people over the years. Disturbingly, Obama has use the argument of “public vengeance” to justify the death penalty, writing in his memoir, that while he believes the death penalty “does little to deter crime,” he nonetheless supports it for crimes “so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment.”
Surely Obama is smart enough to recognize that when a community is so enraged, that is precisely when the fairness of a trial becomes hardest to assure, and thus, when the chance of a wrongful conviction becomes the most likely. And yet he finds it safer to politically pander to those base instincts for vengeance.
There is no greater crime than the killing by the state of an innocent person, and yet, in America, such atrocities are not just happening, they are condoned by judges in the highest court of the land.
DAVE LINDORFF is a Philadelphia-based journalist. He is author of “Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal,” (Common Courage Press, 2003) and more recently of “The Case for Impeachment” (St. Martin’s Press, 2006). His work is available at www.thiscantbehappening.net