Arkansas, Scalia and Thomas would execute despite innocence

Last week, an Arkansas prosecuting attorney refused to grant Victoria Hutcheson immunity when she wanted to recant her earlier testimony in the shameful prosecution of the West Memphis Three.

If there was any lingering doubt, that act erased it: Arkansas officials are not interested in either truth or justice in this case. They care only about preserving the ill-gained convictions won in Judge David Burnett’s court 15 years ago.

The matter of actual innocence is growing hotter as scientific advances prove more and more convictions to have been wrong. In the process we get to see how our officials react to the new information.

Do they try to correct the wrong as swiftly as possible, as some prosectors are doing? Or do they resist the new information, fighting to keep it out of court, as we in Arkansas witnessed with last week’s aborted testimony by Ms. Hutcheson?

At the furthest extreme, we get to witness the chilling logic of two members of the U.S. Supreme Court, Justice Clarence Thomas and Justice Antonin Scalia, who recently wrote that courts have no obligation to assure that they are not sending an innocent person to death.

Arkansas, with its disregard of Hutcheson’s attempted recantation, appears to join Thomas and Scalila in a degree of calousness that’s beyond the pale.

The following editorial appeared in the New York Times on Wednesday, August 19, 2009

The Court’s Duty

We are relieved that the Supreme Court has ordered a lower court to reconsider the conviction of a Georgia death row inmate who may be innocent. In a shocking dissent, Justices Antonin Scalia and Clarence Thomas dismissed the idea that the courts have a duty to ensure that they are not putting an innocent man to death.

We hope that the Georgia court will see that justice is done. And that the other justices will make clear in future cases that the Constitution prohibits the execution of death row inmates who can produce convincing evidence that they are innocent.

Troy Davis was convicted of the 1989 murder of an off-duty Savannah police officer. Seven key witnesses have since recanted, and several people have charged that the main prosecution witness was the shooter. Rather than arguing that there were procedural flaws in his trial, Mr. Davis is making the more basic claim that he is innocent and that new evidence proves it.

The Supreme Court ordered a federal district court to “receive testimony and make findings of fact” about whether the new evidence clearly establishes that Mr. Davis is not guilty. Such a hearing is the best vehicle for getting at the truth — and for possibly rescuing an innocent man. There is no excuse for not having one.

In their extraordinarily cold dissent, Justices Scalia and Thomas argued that the Supreme Court has never held that the Constitution prohibits executing an inmate who had a full and fair trial but is later able to convince a court that he is actually innocent. To the contrary, they argued that a federal law — the Antiterrorism and Effective Death Penalty Act of 1996 — prevents the courts from intervening on behalf of a death row inmate who claims to have proof of his own innocence.

This reading of the law is incorrect, as Justice John Paul Stevens ably explained in a separate opinion. It is also unconscionable. For the state to put a person to death is, in our opinion, always wrong. To do so in the face of clear evidence of innocence is barbaric.