By Dave Lindorff

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
(see my article Dead Man Walking Home
in Salon, May 1, 2003) 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, 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 on the execution
in Xian China. 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.

At times like these, I am sorry I’m an atheist. It would be nice to
think that there would be some special grim level of hell in store for
the likes of Justice Scalia, Judge Gaitan, and Judges Beam, Arnold and
Murphy—perhaps a row of cells from which they would be marched every
few days to be strapped onto gurneys and administered an intravenous
death potion, or into electric chairs through which a surge of high
voltage would be sent, only to return to their cells for another round
of waiting. Also for the likes of Nixon, Reagan, Clinton, the Bushes
and, yes, Obama, who would be case before howling mobs of the wrongly
executed, who would call for their execution, after which they could be
marched off to the same fate over and over.

Unfortunately, there is no such divine justice. Only the hope that
one day, a more civilized and compassionate public will demand better
of itself, its political leaders, and its judges.

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