How I would have written Scalia’s dissent

Troy Davis, originally convicted of murdering an off-duty cop under questionable circumstances, will now have his case reviewed by order of the Supreme Court. Justice Scalia dissented, however, and his opinion isn’t exactly a model of human empathy:

“This court,” Scalia pointed out, “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 court that he is ‘actually’ innocent.”

Scalia takes the position that, from a legal perspective, it no longer makes the slightest difference whether Davis is innocent of the murder he was convicted of committing, and for which, in all likelihood, he will be executed. If a defendant got a fair trial in state court, there’s nothing the federal court can do, Scalia argues, to reverse that verdict—even if new evidence comes to light that convinces the court to a moral certainty that the defendant is innocent.

Paul Campos seems to think that this is pretty callous, and at first blush, I’m inclined to agree. But I can at least understand where Scalia (and other conservative jurists) are coming from. The legitimacy of the legal system rests in large part on an assumption that justice is meted out through a predictable set of rules. Does granting Troy Davis another chance undermine the stability and predictability of our legal framework? Scalia seems to think so, though I’m not really equipped to decide one way or another. Does the court’s decision fundamentally alter a bedrock of judicial legitimacy? Probably not, though it could open the door to other, more expansive opinions in the future.

So let’s assume that Scalia is right and the court is needlessly meddling with well-established judicial procedure. As Campos notes, our flawless legal system is actually pretty hard on poor defendants. The original conviction was probably the result an over-worked public defender who doesn’t have the time or resources to adequately represent someone like Troy Davis. The failings of Georgia’s legal system are beyond Justice Scalia’s purview, but every one of his judicial opinions is another chance to seize the bully pulpit. Instead of delivering another lecture on procedural requirements, why not publicly (and in great detail) lament the state of the legal system responsible for Troy Davis’s plight? Why not take this opportunity to remind Georgia’s state legislature that their public defense system is a national embarrassment?

To be perfectly honest, I don’t want judges like Scalia inserting themselves into the judicial process, correcting structural problems on an ad hoc basis. Responsibility for the sorry state of Georgia’s courts rests squarely with that state’s citizens and legislators, and besides, how many defendants like Troy Davis won’t get the benefit of a high-profile Supreme Court review? But a public excoriation from the likes of Antonin Scalia might actually prompt the relevant authorities to do something for poor defendants. Now that would be an opinion worth reading.

Update: Per Mark and greginak’s recommendation, the Obsidian Wings posts on the Troy Davis case are quite good.