FacebookTwitterGoogle+RedditEmail

Trying the Dead

by CHRISTOPHER BRAUCHLI

“Hanging is the worst use a man can be put to.”

Sir Henry Wotton, The Disparity Between Buckingham and Essex (1651)

It is not often that one is inclined to look to other countries to see if there are procedures that could be usefully introduced into our own system of jurisprudence.  Indeed, there is considerable controversy as to whether it is ever appropriate to look to the practices in other countries to see how particular laws might be applied in our own country.

Supreme Court Justice Anthony Scalia has opined on more than one occasion that what other countries do should have no bearing on how our courts rule in particular cases.  In a 2005 case in which the Supreme Court outlawed the death penalty for juvenile killers, Justice Anthony Kennedy, writing for the majority  said that

“the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. . . . .[T]he Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of Eighth Amendment’s prohibition of ‘cruel and unusual punishments.’. . .[T]he United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18. . . . ”

Justice Scalia objected to the majority’s invocation of  foreign law in arriving at its decision saying, among other things, that “the basic premise of the Court’s argument-that American law should conform to the laws of the rest of the world-ought to be rejected out of hand.”

It is not the purpose of this column to take sides in the ongoing debate about the applicability of foreign laws to our own justice system but rather to suggest that at least one recent example of a foreign proceeding might be worth imitating in the United States. Our instructor in this procedure is Sergei L. Magnitsky and the process entitled to thoughtful consideration is found in Russia.

Mr. Magnitsky was a Russian lawyer who was arrested for allegedly having tried to expose a tax fraud perpetrated by officialdom.  He said that certain interior officials had embezzled $230 million from the Russian Treasury.  Arrested in 2008, he died in prison in 2009.  His family said that he had not received proper medical care.

Mr. Magnitsky has now been dead for more than 2 years.  In early February it was announced that the government intended to try Mr. Magnitsky for tax evasion, the offense for which he had been arrested, notwithstanding the fact that he was dead.  According to reports, this would be the first posthumous prosecution ever to take place in Russia.  Russian officials explained  it would permit relatives and supporters to clear his name. or, alternatively, vindicate the officials who had been accused of corruption.

The government recognizes that this is a somewhat unusual procedure and sent a letter to Mr. Magnitsky’s mother offering to drop the case if relatives had no “desire to protect the honor and dignity of the deceased.”  As of this time there is no word on whether she thinks the trial should proceed or whether she is content to have her son remembered as an accused man rather than a victim of a false accusation.

The question readers are no doubt asking themselves is how this foreign procedure could be applied to United States proceedings.  The answer is by adopting the Russian procedure in death penalty cases.

One of the arguments against the death penalty is that once it has been administered the results are final and the case is over.  There is no way for someone who has been executed to clear his name.  Troy Davis, formerly of Savannah, Georgia, for example, was on death row for many years.  A large contingent of prominent citizens had come to his defense asserting that he was not guilty of the crime for which he was to be executed.  Among his defenders were former president, Jimmy Carter, Pope Benedict XVI (who opposes the death penalty was well as contraception), former Georgia Supreme Court Chief Justice Norman Fletcher and other prominent citizens. Appeals exhausted, Mr. Davis was executed September 20, 2011.  Here is where the Russian example could usefully be invoked.

When it is learned that an innocent person has been the beneficiary of the death penalty, adopting the Russian practice, the decedent’s family could, if there were new evidence or old evidence that the courts had refused to consider, demand a posthumous trial of the decedent in order to clear the decedent’s name.  Legal purists might worry about double jeopardy in trying someone a second time for a crime for which the decedent has already been executed, but that concern falls of its own weight when one realizes that nothing bad can happen to the accused since it has already happened.  But it would help to make the death penalty considerably less final since the execution would not deprive the family of the chance to clear the defendant’s  name.

Sadly, given Justice Scalia’s fondness for the death penalty and his dislike of foreign law, the practice is not likely to be adopted in the United States.  A pity that.

Christopher Brauchli is an attorney living in Boulder, Colorado. He can be e-mailed at brauchli.56@post.harvard.edu.

 

More articles by:
Weekend Edition
November 17, 2017
Friday - Sunday
Paul Street
Thank an Anti-War Veteran
Andrew Levine
What’s Wrong With Bible Thumpers Nowadays?
Jeffrey St. Clair - Alexander Cockburn
The CIA’s House of Horrors: the Abominable Dr. Gottlieb
Wendy Wolfson – Ken Levy
Why We Need to Take Animal Cruelty Much More Seriously
Mike Whitney
Brennan and Clapper: Elder Statesmen or Serial Fabricators?
David Rosen
Of Sex Abusers and Sex Offenders
Ryan LaMothe
A Christian Nation?
Dave Lindorff
Trump’s Finger on the Button: Why No President Should Have the Authority to Launch Nuclear Weapons
W. T. Whitney
A Bizarre US Pretext for Military Intrusion in South America
Deepak Tripathi
Sex, Lies and Incompetence: Britain’s Ruling Establishment in Crisis 
Howard Lisnoff
Who You’re Likely to Meet (and Not Meet) on a College Campus Today
Roy Morrison
Trump’s Excellent Asian Adventure
John W. Whitehead
Financial Tyranny
Ted Rall
How Society Makes Victimhood a No-Win Proposition
Jim Goodman
Stop Pretending the Estate Tax has Anything to do With Family Farmers
Thomas Klikauer
The Populism of Germany’s New Nazis
Murray Dobbin
Is Trudeau Ready for a Middle East war?
Jeiddy Martínez Armas
Firearm Democracy
Jill Richardson
Washington’s War on Poor Grad Students
Ralph Nader
The Rule of Power Over the Rule of Law
Justin O'Hagan
Capitalism Equals Peace?
Matthew Stevenson
Into Africa: From the Red Sea to Nairobi
Geoff Dutton
The Company We Sadly Keep
Evan Jones
The Censorship of Jacques Sapir, French Dissident
Linn Washington Jr.
Meek Moment Triggers Demands for Justice Reform
Gerry Brown
TPP, Indo Pacific, QUAD: What’s Next to Contain China’s Rise?
Robert Fisk
The Exile of Saad Hariri
Romana Rubeo - Ramzy Baroud
Anti-BDS Laws and Pro-Israeli Parliament: Zionist Hasbara is Winning in Italy
Robert J. Burrowes
Why are Police in the USA so Terrified?
Chuck Collins
Stop Talking About ‘Winners and Losers’ From Corporate Tax Cuts
Ron Jacobs
Private Property Does Not Equal Freedom
Kollibri terre Sonnenblume
Mass Shootings, Male Toxicity and their Roots in Agriculture
Binoy Kampmark
The Fordist Academic
Frank Scott
Weapons of Mass Distraction Get More Destructive
Missy Comley Beattie
Big Dick Diplomacy
Michael Doliner
Democracy, Real Life Acting and the Movies
Dan Bacher
Jerry Brown tells indigenous protesters in Bonn, ‘Let’s put you in the ground’
Winslow Myers
The Madness of Deterrence
Cesar Chelala
A Kiss is Not a Kiss: Sexual Abuse and Exploitation of Children
Jimmy Centeno
Garcia Meets Guayasamin: A De-Colonial Experience
Stephen Martin
When Boot Becomes Bot: Surplus Population and The Human Face.
Martin Billheimer
Homer’s Iliad, la primera nota roja
Louis Proyect
Once There Were Strong Men
Charles R. Larson
Review: Mike McCormack’s Solar Bones
David Yearsley
Academics Take Flight
FacebookTwitterGoogle+RedditEmail