I wrote the following in December of 2000 and it seems quite appropriate to publish it again in this venue:


The recent interesting, although not really surprising, decision by the US Supreme Court reminded me that I have promised a number of you information on the Supreme Court's, and in particular, Justice Antonin Scalia's opinions on innocence. For those of you who were not privy to these conversations, I apologize and hope that this information sheds some light on the way our democracy is being run.

The case in question is Leonel Torres Herrera v. the Texas Department of Criminal Justice, Institutional Division (506, U.S. 390, 427-428 (1993)). Herrera was accused and convicted of murdering a police officer in Texas. Following his conviction, evidence of his innocence, and police collusion in covering up exculpatory evidence, was allegedly uncovered by his attorneys. The case was brought to the US Supreme Court who refused to rule on the issue of whether or not the fact of the defendant's innocence should preclude his execution. Mr. Herrera was executed 4 months later. Please note that it is not my contention that Mr. Herrera should have been granted a new trial since I have not seen the evidence that shows his innocence. My objection is to Justice Scalia's opinion that innocence poses no constitutional impediment to upholding a conviction.

In his concurring opinion, Justice Scalia opined that "There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding, in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction." Justice Scalia goes on to state that "...if the system "shocks" the dissenters' consciences...perhaps they should doubt the calibration of their consciences..." and that if the defendant were truly innocent, he should depend on "...an executive pardon.".

Apparently I need my conscience re-calibrated! Call me foolish, but I happen to believe that our Constitution does indeed intend that innocent people should not be executed, or even incarcerated! In fact, in their concurring opinion, Justices O'Connor and Kennedy state as much as a matter of stipulation. The case syllabus may be found on the website of The Cornell University Law Library along with the full text of Justice Scalia's opinion (joined by Justice Thomas, no surprise there) and much more information on the case. I certainly hope that none of us are ever accused of a crime, since apparently the fact of one's innocence no longer matters in this society.