January 24, 2006

Feingold and Alito.

I've been intermittently watching the vote on C-Span. I'm listing to Senator Feinstein right now. She's voting no, of course. At this point, what I'm interested in is Russ Feingold's vote. He voted yes on Roberts, and he has not -- based on my checking just now -- said how he will vote. I hope Feingold says something that distinguishes him from the other Democratic Senators.

UPDATE: Feingold is speaking now. He's voting no.

"I found Judge Alito's answers on the death penalty chilling.... He analyzes death penalty cases as a series of procedural hurdles... He left me with no assurance that he would not analyze these cases with his finger on the scales of justice. Judge Alito left me with no assurance that he would be able to review these cases without a weight on the scale in favor of the government."
YET MORE: Here's the transcript of Feingold's statement. Here's the full quote (which I transcribed somewhat inaccurately at the end, causing some commenters to misinterpret him as wanting the judge to be biased!):
I found Judge Alito’s answers to questions about the death penalty to be chilling. He focused almost entirely on procedures and deference to state courts, and didn’t appear to recognize the extremely weighty constitutional and legal rights involved in any case where a person’s life is at stake.

I was particularly troubled by his refusal to say that an individual who went through a procedurally perfect trial, but was later proven innocent, had a constitutional right not to be executed. The Constitution states that no one in this country will be deprived of life without due process of law. It is hard to even imagine how any process that would allow the execution of someone who is known to be innocent could satisfy that requirement of our Bill of Rights. I pressed Judge Alito on this topic but rather than answering the question directly or acknowledging how horrific the idea of executing an innocent person is, or even pointing to the House v. Bell case currently pending in the Supreme Court on a related issue, Judge Alito mechanically laid out the procedures a person would have to follow in state and federal court to raise an innocence claim, and the procedural barriers the person would have to surmount.

Judge Alito’s record and response suggest that he analyzes death penalty appeals as a series of procedural hurdles that inmates must overcome, rather than as a critical backstop to prevent grave miscarriages of justice. The Supreme Court plays a very unique role in death penalty cases, and Judge Alito left me with no assurance that he would be able to review these cases without a weight on the scale in favor of the government.

ANOTHER UPDATE: In the comments, I set out the key interchange (with Sen. Leahy) from the hearings that is the basis for Feingold's comment. I regard the comment as quite unfair. When did Alito refuse to address a situation where a person was proven innocent? When did Alito say that it's constitutionally acceptable to execute a man we KNOW is innocent? Where did he endorse the "horrific the idea of executing an innocent person"? It didn't happen! True, Alito emphasized the procedures that are required before a man can be executed, but he was never asked what would happen if we actually knew a man was innocent and yet the governor refused to pardon him. At that point would there be a right of action in federal court? Alito was not asked. To assert that he refused to address that situation is plainly unfair. It is demogogery of the sort I believed Feingold was above.


Steve Donohue said...

Shorter Feingold: the Court will be too deferential to the executive, especially on controversial issues such as wiretapping. Also, he was too opaque on too many issues.

So, judicial activism is peachy- provided it potentially impedes upon the President.

Normally I'm a pretty big fan of Feingold, even though I disagree with him on many, many issues. But I'm quite disappointed with him today. But he's smart, and this is politically smart, and today one can state for certain that he is running for president in 2008.

Mark said...

Excellent speech by Feingold. I hope his star rises in the Democratic party.

XWL said...

He's up now.

His problem with Judge Alito is that he only judges the law of the cases before him and doesn't 'feel' the underlying emotions of the circumstances the cases reflect.

(that's my immediate impression, call it a 'feeling' even, of what Sen. Feingold means behind what he says)

Clearly he's voting NO.

The tally board on C-SPAN reflects a pure party line vote, no surprise there.

bearbee said...

Feingold stumbled and referred to Alito as 'justice'before correcting himself......

The Vanguard chestnut - comments that Alito does not adequately appreciate the concept of recusal and was not serious in his original promise to the commiittee....liar, liar pants on fire.....

AJ Lynch said...

Feingold is a typical liberal who finds phony issues where there are none to be found.

He believes a SCOTUS justice should have his "fingers on the scales of justice".. what a bunch of crap.

I hope Alito has his fingers on the procedural points cause the judge before him and / or the jury decided on the death penalty after hearing the facts about the crime.

The Dems are clueless. The average American does not consider the death penalty to be a big issue.

nunzio said...

A no vote against Alito is perfectly legitimate. He's pretty much an automaton when it comes to judging; he's fair but, like Milton, most of his education and life experience seems to have come from book-learning. I'm not surprised he lost a big trial against the mafia while he was U.S. attorney b/c he doesn't seem to understand or connect with people.

Basically, the guy's a law geek, which maybe isn't the best thing to have in a SC justice.

Link said...

Feingold statement can be seen here

Smilin' Jack said...

"He analyzes death penalty cases as a series of procedural hurdles... He left me with no assurance that he would not analyze these cases with his finger on the scales of justice."

Well, analyzing cases "as a series of procedural hurdles" is the very opposite of putting one's "finger on the scales of justice." What's so special about this Feingold dude?...if the above quote is representative he sounds like an incoherent dufus to me.

Danny said...

Oh how amazing would it be if Feingold's embodiment of being a liberal was "typical" throughout the Senate!

Simon said...

The best thing one can say about Russ Feingold is that he is the very best the Democratic Party has to offer. The worst thing one can say about the Democratic party is that Russ Feingold is the very best they have to offer.

Simon said...

Are you sure we can't pursuade you to run for Senate, Ann? ;)

The Drill SGT said...

Nicely put Simon. I generally like Feingold as well for his ethics and honesty. I'm disappointed by this vote.

He is my second favorite Democratic Senator however. Leiberman is my favorite.

Duffy Nichols said...

"He left me with no assurance that he would not analyze these cases with his finger on the scales of justice."

I am serving as an arbitrator on a multimillion dollar case next month. I wonder if the parties want my finger "on the scales of justice", or whether they want me to apply the facts and the law in a manner fair to both sides?

This is a ridiculous--but apt--metaphor for what the Left expects of judges,i.e., not "justice", but a "finger on the scales" of justice.

MadisonMan said...

Well, speaking as a constituent of Feingold's, I think his vote is entirely consistent with his history, and it pleases me. Of course, he could've voted the other way too, and I'd probably think the same thing. I don't think Alito will be a strong enough check against the Imperial Presidency. On the other hand, the President should be able to nominate anyone he wants (Didn't he prove that with Miers?) So I guess I'm ambivalent.

Re: Alito's ascendancy to the court: I don't think it's the end of the world as we know it, and I'm wondering if it's going to sow the seeds of the Republican Party's destruction.

Be careful what you wish for.

John in Ringoes said...

"He left me with no assurance that he would not analyze these cases with his finger on the scales of justice."

Strange metaphor! The idea of a finger on a scale suggests a fraudulent weight - an effort to tip the scales to one side or the other illegally.

...oops - Duffy beat me to it.

Elizabeth said...


Feingold didn't refer to cases in general, but death penalty cases. The procedural details can be met, and yet the wrong person convicted. That bothers me a lot more than a case involving money, no matter how much money we're talking about. If we're going to kill a man, we ought to get the facts right, not just line up details.

mwbk said...

Given the attention the quote re: the scales of justice has received in these comments, it seems obvious that few if any have bothered to read the transcript. The actual quote (from the link above) is: "The Supreme Court plays a very unique role in death penalty cases, and Judge Alito left me with no assurance that he would be able to review these cases without a weight on the scale in favor of the government." Feingold is clearly stating that he fears Alito will not be an impartial (i.e. non-activist) jurist!

IndianPaintbrush said...

We really need to get it together on the death penalty. Even allegations of putting innocent people to death make a mockery of our democracy 'crusade'.

Poppycock: A chronicle of the stupidest things ever said

Pogo said...
This comment has been removed by a blog administrator.
Duffy Nichols said...


You are right. The press release is different than the quote from Ann's post, and the difference between the two is huge. I stand corrected.

Pogo said...

Re: If we're going to kill a man, we ought to get the facts right, not just line up details.

I doubt you'll find many who would disagree with such a statement. But really, Does Feingold have some evidence that Alito thinks otherwise? It's unclear from the hearings that he got any answers meriting this conclusion.

I agree, most people aren't too fond of the butcher using his thumb on the scales. Why would we want judges to do so? It's apparent Feingold is more interested in whose ox is being gored, rahter than a fair standard.

Simon said...

"We really need to get it together on the death penalty. Even allegations of putting innocent people to death make a mockery of our democracy 'crusade'."

For reasons explained here, I am leaning against the death penalty at this time, but the Supreme Court has no role to play in that, for the most part. It isn't up to the Court to make difficult decisions on penology for us, unless it is actually unconstitutional, which the death penalty is not.

Wade_Garrett said...

It was awkwardly phrased, but isn't it obvious that Feingold was trying to say that he was afraid would-be Justice Alito WOULD evaluate cases with his finger on the scales justice???

AJLynch - perhaps. But does that mean the Democrats should stop fighting to stop it? Most Americans don't consider flag burning to be a big issue, and most don't have a strong positions on takings law, but there are plenty of Republicans who still hold those causes close to their hearts.

Greg said...

Where exactly is the link to the Feingold quote? I see a link to the live C-SPAN hearings and a link to a TV Website, but where can I find the actual Feingold quote?

Ann Althouse said...

I did an update linking to the transcript. Sorry the last part I transcribed wasn't verbatim, but I don't really see why people were misreading him as wanting the judge to be biased.

Cute verification word: foojiju

Duffy Nichols said...

Ann: re your last comment, and with apologies to Dan Rather, I am going to assert the "fake, but accurate" defense. The reason for the misreading is because many of us believe that most the Democrats on the Committee want precisely what the first quote conveyed, i.e., the finger of the judge to be on the scales of justice for the "little guy," the plaintiff and/or [name your victim].

I'm not sure this is true of Feingold, but it certainly seems true of the Kennedy wing of the Committee. Maybe it's Kennedy who deserves the finger, not the scales of justice...

Mark said...

Like Anne, I also don't see why her initial transcription of Feingold's words was misread. I think she was trying to emphasize that Feingold was AGAINST having a finger on the scales of Justice (i.e., Feingold was worried that Alito would place his finger at the government's side of the scales).

Smilin' Jack said...

OK, the corrected quote makes more sense, and (despite the "very unique" solecism) Feingold no longer sounds like an idiot. In fact I agree with his concern. I'm not opposed to the death penalty in principle; the problem is that it's administered by the government--the same people who brought us the IRS, the DMV, the Vietnam War, the O.J. trial, etc., etc. It's scary to give such nincompoops the power of life and eeath.

Pogo said...

Feingold's statement "I was particularly troubled by his refusal to say that an individual who went through a procedurally perfect trial, but was later proven innocent, had a constitutional right not to be executed." is dishonest.

The question is ridculous on its face. How would Alito know that the prisoner was in fact innocent, except by the facts of the case? Does he really think Alito would execute a man he knew to be not guilty, simply because the process was done right? At what point in the hearing did Alito say "I don't care if he's innocent. The procedure was correct. So fry him."? It never happened.

What partisan posturing. What nincompooperish nonsense.

RogerA said...

I think Pogo nails it--look, these are democratic senators trying to keep their base, keep their contributions from lefty organizations or trying to keep their way clear to run for future political office--the final point eliminates most of them except for Feingold--

so why doesnt feingold just say if I vote for Alito I am not going anywhere in my quest for future office that involves democratic support--for ONCE I would like to hear some scum sucking senator, of either party state what the rest of the American public knows: I am taking this action to cover my sorry kiester--so I am going to come up with most plausible excuse I can to cover my lack of cojones (or ovaries as the case may be)--Senators are a stain on the body politics--once--just once--I would love to hear one of the sorry suckers tell the truth as they see it irrespective of how it would affect their chances for future considiration--What a sorry lot of dufusses--all one hundred of them.

Mark said...

Are you familiar with the House case currently reviewed by the Supreme Court? If not, perhaps you should familiarize yourself with it before you accuse Feingold and others of posturing.
Briefly, a man who is very likely innocent (although not beyond a reasonable doubt) had his petition for habeas corpus denied in a 8-6 vote on the Sixth Circuit because the procedure was followed. Apparently, the conservative majority held him to a standard that he needed to establish his innocence beyond a reasonable doubt; something which is very difficult to do, especially if you have a prior criminal record.
This is why Feingold and others are concerned that for the trees of following the procedure Alito may not see the forest of not allowing a probably innocent man to be executed.

Eli Blake said...

Well, quite a few men have been exhonerated by DNA or other evidence after having spent time on death row. There are even a half dozen or so cases around the nation where it looks probable that the states have executed innocent men (outgoing Gov. Mark Warner of VA even ordered a DNA test on one of those to see if his state had executed an innocent man.)

Considering how often this has happened (5% of the entire death row population in the state of Illinois has actually been exhonerated), I find Feingold's question very relevant and Alito's views to be troubling. If the Supreme Court can't step in and stop an execution when there is compelling evidence of innocence, then exactly what ARE they good for?

I mean, that question is about as basic as the meaning of 'justice' gets.

Ann Althouse said...

Eli: In that VA case, the news last week was that the new DNA case showed the man (Coleman) to be guilty.

Anyway, it's important to acknowledge that once there has been a conviction, upheld on appeal, habeas shouldn't be about simply providing a retrial. Liberal and conservative judges alike recognize that. If there really is persuasive evidence of innocence, the governor should issue a pardon. If for some reason a governor faced with persuasive evidence of innocence withheld a pardon, there should be a claim for relief in federal court. Alito did NOT reject that concept, and those who act like he did are not playing it straight. I'll get the material from the transcript and demonstrate that in another comment.

Ann Althouse said...

Okay, here's an exchange with Senator Leahy on January 12th:

LEAHY: Thank you.

In his confirmation hearing last September we, as you know, went through hours and hours, days and days with Judge Roberts, now chief justice.

I asked him if the Constitution permits the execution of an innocent person. He said, "If they've been falsely convicted and they're innocent, they shouldn't be in prison, let alone executed." I think we all agree with that.

But I pushed further, because my question was whether the Constitution permits the execution of an innocent person -- you know that they're innocent. He said, "I would think not."

Judge, do you agree with Chief Justice Roberts?

ALITO: I agree that it is one of the most fundamental rights protected by our Constitution that no one may be convicted of an offense unless they're proven to be guilty beyond a reasonable doubt.

And further than that, the Supreme Court's decisions since 1976 dealing with the Eighth Amendment have attempted to create a whole set of procedural safeguards to make sure that the death penalty is not imposed arbitrarily or capriciously.

And this whole framework is designed to prevent exactly that: to prevent the conviction of an innocent person and to prevent the imposition of capital punishment on someone who is innocent or on someone who is guilty of the offense but is not deserving to be -- to have that penalty imposed on the person.

LEAHY: But, Judge, we have, as we know -- we saw the cases in Illinois, people a few days away from execution. They'd been sentenced to death. They'd been convicted. They had their trial, gone to trial. Jury came back. Apparently procedures followed on sentencing. They are now sentenced to death.

A few days before death, somebody comes forward at the very last minute because of DNA evidence, and says "Whoops, we got the wrong person," and then they are let loose.

We're finding in Virginia now, in other cases, it appears that there's a possibility a number of innocent people were executed.

What if you had a case -- they've gone through the whole thing. They've been convicted. The judge has followed all of the appropriate sentencing, the jury came back for sentencing, did everything following the law. And now they're up for execution. Evidence comes up, say, DNA evidence, or DNA evidence, a confession of somebody else. Would it be unconstitutional then to execute that person?

ALITO: Well, Senator, it is unconstitutional to execute someone who has not been proven guilty beyond a reasonable doubt. Now, depending...

LEAHY: They may have been found guilty beyond a reasonable doubt, is what I'm saying. And then as a lot of these people were on death row and had to be commuted at the last moment when they -- a few days before the execution they found, whoops, they have the wrong guy.

ALITO: That's the ultimate tragedy that could possibly occur in our criminal justice system. We should do everything we can to prevent that from ever occurring.

I have not had a case -- during my time on the court of appeals, I've had only a handful of capital punishment cases where there was a suggestion that that was a possibility.

If the evidence develops at the last minute, then I think -- and if this is -- it would depend to some degree on -- the procedures would be different, depending on whether the person had been convicted in state court or in federal court.

The first procedural step in either instance would be to file a petition with the trial court. If it were in state court, it would be a state collateral relief petition. And those are handled differently depending on the state. And then file a -- I'm sorry. You could go to the state court or you could attempt to file a second habeas petition in federal court and follow the procedures that are set out in the habeas corpus statute.

LEAHY: But you agree with -- I understand all the steps. Like you, I was a prosecutor. Even though we don't have death sentence in Vermont, we have real life imprisonment. And I remember those.

But you agree, though, with Chief Justice Roberts that the Constitution does not countenance the execution of an innocent person?

ALITO: The Constitution is designed to prevent that.

LEAHY: And the reason I ask this, this is something that originally raised, as I recall, in the Judiciary Committee by Chairman Specter, the Rule of Four. Are you familiar with that, where the Supreme Court?

In other words it takes five justices to stay an execution or to hear one of these cases. Usually, if there's been four that have agreed it should be, somebody will make the fifth just as a matter of courtesy.

It hasn't been followed that much recently. Chairman Specter has called it is bizarre, an unacceptable outcome, to not provide the fifth vote. He wanted to introduce legislation to codify the Rule of Four.

If you were one of the justices and you're there -- and these things always seem to happen. Everybody is scattered all over the place. Four of your fellow justices have said that they would hold, what would you do? They voted to stay an execution. They're asking you to be the fifth vote. Four have...

ALITO: I had not heard of this rule until the hearings for Chief Justice Roberts. But it seems to me to be a very sensible procedure because I think we all want to avoid the tragedy of having an innocent person executed or having anyone executed whose constitutional rights have been violated.

RogerA said...

Professor Althouse--I side with you on the results of the Coleman case--but unfortunately, there were several ways to read the evidence--as I recall there was something like a one in 19 million chance that Coleman was not the perpetrator--that led the good folks at NPR to take that one in 19 million chance, divide the total population of the United States by 19 million and conclude there could have been 16 other persons in the US who could have done the crime--that was how that segment went.

Ann Althouse said...

Roger A: It's not as if the DNA was the only evidence of guilt. The victim was his sister-in-law. He wasn't just picked out of a DNA databank! He was convicted with evidence at trial that the jury found sufficient under the reasonable doubt standard. Later, people tried to exhonerate him with DNA testing (that wasn't available at the time of the trial). That evidence turned out to reinforce the result at trial.

RogerA said...

Professor Althouse--I agree with you entirely--my only point that I didnt post was that NPR reporters suggested that a one in 19 million chance suggested that he MIGHT not be guilty--so if we are going to assume that DNA evidence is OK, what rate will we accept to indicate guilt? is a one in 2 million chance OK to execute? a one in 10 million chance?

And I am playing devil's advocate here and trying to indicate that for people who might oppose the death penalty there really is NO standard they might accept.

John Jenkins said...

RogerA, you're correct. There is no standard I am willing to accept: the government intentionally killing an incapacitated person is a morally prohibited act. That's not the law, however, and Alito indicated he would follow the law. My redress is through the legislature, knowing that a then-Justice Alito would follow that law when enacted.

Mark said...

Where is the alleged demagoguery?
Feingold said and I quote:

I was particularly troubled by his refusal to say that an individual who went through a procedurally perfect trial, but was later proven innocent, had a constitutional right not to be executed.

This is a correct and troubling statement. Alito never said that a person who was proven innocent after being convicted had a constitutional right not to be executed. All the talk about procedural hurdles is nice and swell, but the reality is that the Supreme Court case law currently ALLOWS an innocent man to be executed. Again, I direct you to the House case currently on the review by the Supreme Court.
6 out of 15 appellate judges felt he should be released; 1 judge thought he deserved a new trial, and 8 judges felt he should be executed. Why? Because the leading case on the death penalty can be read to require for an innocent man to not be executed to demonstrate evidence such that no reasonable juror would find a person guilty. So, if out of 100 reasonable jurors, 99 would find a person innocent and 1 would find him guilty, the current case law would require that the execution go forward.

I.e., a person can be proven innocent with very high likelihood (but not beyond a reasonable doubt) and still be executed.
That's what Leahy and Feingold were getting at. Too bad Alito did not unambiguously said that an innocent person has a constitutional right not to be executed.

Slac said...

"Proven innocent?" I thought it was supposed to be the other way around.

Gerry said...

"It is demogogery of the sort I believed Feingold was above."

I do not think his impending Presidential run is going to do much for your estimation of your Senator.

John(classic) said...

I lost respect for Feingold long ago when Clinton's original crime bill came up. The bill expnaded the federal death penalty. The bill could have been killed on the key procedural vote. Feingold voted for it, and his vote put it over.

When the final vote, whose result was a near certainty came up, Feingold voted "no" delivering an emotional speech about how he was opposed to the death penalty.

At that point I realized this guy was a hypocrite.

WisJoe said...

From what I can tell, the question that Senator Feingold is grappling with is this - is Judge (soon to be Justice) Alito like Justices Scalia and Thomas, who, in Herrera (sp?), seemed to countenance that one could be executed while innocent (ignoring the whole clemency issue)if you received anotherwise consitutionally sound trial procedurally? It may be purely hypothetical, but it fosters a more general inquiry into Alito's belief as to the judiciary's role. This is consistent with the de jure concerns about the assertion of unchecked executive power.

Mike said...

I would say that Feingold is maybe the last person to talk about upholding the Constitution having passed the single bill most damaging to freedom of speech in the last 40 years at least.

Gabe said...

Ann - If there really is persuasive evidence of innocence, the governor should issue a pardon.

Agreed. That being said, and I'm not speaking legally here, but politically, how persuasive will the evidence of innocence have to be in the states where being soft on crime is worse than eating a kitten on live TV (roughly analogous to states with the death penalty)? I just don't see this happening very often, if at all.

Eli Blake said...

OK, Ann

You are right. I was wrong.

Save this comment, because you won't get these from me very often.

Ann Althouse said...

Gabe: So what would you do where a man has had a fair trial where he was found guilty by a jury applying a reasonable doubt standard and who has had his direct appeals? Now, he asserts that he's innocent. What standard would you apply before he gets another trial? Is it enough that he points to any new evidence? Would you want to know what language Congress, a body Feingold is a member of, has put in the habeas corpus statute? Or is Samuel Alito a heartless machine because he tried to think carefully about such things?

Gabe said...

Ann - you may have read alot into what I said.

My point, and I think my only point, is that governors in states where the death penalty is popular have political constraints that weigh against pardons and commuting sentences. Regardless of one's thoughts on Feingold, Alito, or the rest of the death penalty procedures, that is a reality that has to go into the thought process when including pardons and commutations into the procedural safeguards preventing executions of defendants who turn out to be actually innocent.

Doing a google news search on "governor commute death sentence" turns up a bunch of stories of people asking for commutations and pardons, but none on people receiving them.

The only example I can think of off the top of my head was Gov. Ryan in IL and he was also in the process of riding an ethics scandle out of office.

In VA recently, when one candidate for governor blasted the other's opposition to the death penalty, he responded by saying he would not use his office to prevent executions.

Now, maybe Gov. Kaine, because of his opposition to the death penalty, and the quirk in Virginia that prevents a sitting Gov. to run for re-election, will commute or pardon someone whose procedural court visits have been used and there is significant evidence of actual innocence.

I don't feel comfortable with relying for protection of the innocent from executions on a politically elected politician acting against his political self-interest in order to do the right thing.

Gabe said...

Shorter Gabe:

I donlt know the answers to Ann's questions, because I haven't taken Con Law yet, but I would sooner rely on Superman knocking down the walls of the death chamber and thudering, "This man is innocent!", then I would rely on the Gov. of Texas recognizing that a death row inmate may be actually innocent and pardoning him or commuting sentance to allow for more investigation.

Ann Althouse said...

Gabe: I wasn't reading things into your comment. I was noticing the many things you left out.

Gabe said...

I also left how out prosecutorial discretion could effect the decision to seek the death penalty where the evidence is mostly circumstantial, UW losing to a Division II team at home, and the unfairness of the Yankees being good.

Since I was only talking about the unreality of relying on Governors to act against their political interests after the procedural steps have been exhausted, it seemed irrelevant to bring up the procedural steps.

Pogo said...


You're just dancing around the question. Feingold asserted something about Alito that never occurred. He accuses him of accepting a satisfactory procedural conviction as overriding actual innocence.

Nothing of the kind ever happened. That's just dishonest.

Instead, you want to talk about the deck being stacked against convicts and such. Might be true; who knows? But that's another debate, and irrelevant here (much like the irrelevancies you note in your snide deflection).

It has nothing to do with Alito or his capacity as a Supreme Court justice. Unless you think the SCOTUS can do whatever it damn well pleases (that is, whatever the left damn well pleases).

Ann Althouse said...

Gabe: You are commenting in a particular thread for a particular post. Don't play innocent.

Gabe said...

Ann - I'm not playing innocent, I was responding to something you said in the same thread on the same topic that struck me as unrealistic.

Pogo - It has relevence when one of the things that we are relying on, explicitly stated upthread, is governors intervening to stop executions.

I fail to see how that argument fits into the left-right spectrum. We all want the system to work.

I apologize, however, if my snideness was offputting. It has passed down from generations fo Gabes.

Pogo said...

Re: It has relevence when one of the things that we are relying on, explicitly stated upthread, is governors intervening to stop executions.

The ability of a governor to stop executions is a state function, to be decided by the state legislature and its voters. Alito has no input therein.

Unless you are suggesting we remove the governor from the equation in every case, and have all death sentences reviewed by the SCOTUS. Or do we demand that SC justices presume all governors are shirking their duty? That expansion of power is something for which Alito, again, is not responsible.

Feingold was off the mark.

WV ~xmivezqm Is it me, or are the blogger word verifications beginning to exceed a CIA level of security? Eight wavy random difficult letters to post a response on a blog? Sheesh.

Mark said...

"Gabe: So what would you do where a man has had a fair trial where he was found guilty by a jury applying a reasonable doubt standard and who has had his direct appeals? Now, he asserts that he's innocent. What standard would you apply before he gets another trial? Is it enough that he points to any new evidence?"

Of course, it's not enough. I don't think Feingold or any serious critic of Alito's death penalty jurisprudence said that it's enough that a convicted person "points to any new evidence."
The question is, what do you do when:
a) all procedural steps were followed correctly (convicted beyond a reasonable doubt; had his sentence reviewed under proper standards, etc), but
b) a powerful new evidence comes up which strongly suggests that there's a 50% or better chance that the person is, in fact, innocent.

Again, under current case law (I believe the AEDPA is silent about this situation), it appears that it's quite possible that the person still must be executed.

Is it fair? I don't think so.

Gabe said...

Pogo - I was simply pointing out that, upthread, Ann had made mention of the Governor's role in preventing the execution of innocents and I believe that it is unrealistic to rely on that as part of the process preventing the executions of innocents, which should focus the importance of the SCOTUS' role in said prevention.

Unless you are suggesting we remove the governor from the equation in every case, and have all death sentences reviewed by the SCOTUS.

What I am suggesting is that we (the royal we, American culture, politics, and society) have already effectively removed the Governors from the equation and that we should proceed with discussions from there. It is unrealistic to have the discussions under the assumption that a Governor will intervene in the case of possible actual innocence, as explicitly stated upthread.

Are the word verifications getting even squigglier? I have to do it twice most times because they look like different letters.

commenter said...

I've found the comments to this thread to be interesting. After mulling over them, I have come to the conclusion that to the extent the Alito was tripped up at all, it was because he was given a "trick" question. It is a "trick question" because it is difficult to envision a circumstance where a defendant who has been given full "due process" rights could be executed notwithstanding clear evidence establishing his innocence. First, although I am not an expert in the relevant state law, I believe all states do provide a mechanism for defendants to seek post-conviction relief based on newly discovered evidence. If any states have procedural bars that would prohibit such relief, I would like to know the specific facts that act as a bar before discussing the matter further. In any event, I don't think it would be a far stretch to construe the federal due process clause as requiring states to provide an avenue to post-conviction relief in death penalty where justice requires.
Second, federal due process rights would clearly require that such post-conviction relief be ruled upon by a fair and impartial trial judge and appellate judges. To reach the point where the defendant would be executed one would have to posit that a fair and impartial judge reviewed new evidence establishing the defendant's innocence and nevertheless concluded that the defendant should be executed. This seems to me to be a self-contradiction.
The only way I can see a scenario similar to the one posed to Judge Alito arising is where reasonable judges might differ as to whether the evidence established innocence. In that case, the question become to what extent should Federal judges have authority to review the factual findings of state court judgments? This is an extremely complex policy question that is answered in part by the Constitution itself, in part by the precedents of the Supreme Court and in part, by legislation passed by Congress. I am sure Judge Alito could have given a lengthy analysis of this complex question, but it is not the question that was posed to him.
It is also a "trick question" because the hypothetical requires the assumption that a state's judicial system and its governor are so incompetent or corrupt that the state would seek to execute an innocent man. If this were to occur, it would reflect a major break down of the state's government. I think that it is extremely difficult for any judge to discuss how they would respond to such a hypothetical without more specific facts. I think that if a state acts lawlessly, then most judges would be inclined to intervene even if it required them to act in a more activist way than they would normally be inclined. I commend Judge Alito, however, for declining shoot from the hip and to just assert that the Constitution provides an easy answer on how the federal judiciary should respond to a lawless state government.

Knucklehead said...


Thank you! I was following the piece of the transcript Ann provided and couldn't help marveling that Alito didn't scream at Leahy, "Senator! Under what possible set of magic circumstances could what you are asking me about ever happen? No, as a Supreme Court justice I will never vote to execute a convicted person who has been proven innocent. Nor will I ever be called on to do so."

And that line of Leahy questioning was Feingold's excuse to vote no? That line of questioning should have been reason to take the microphone away from Leahy and slap him.

Mark said...


Read my comments above. It's quite possible for an innocent person (say, 70% probability of innocence) to be executed.

pauld said...

The hypothetical posed to Judge Alito involved a man "proven to innocent". This is being modified in these comments to involve a man who might likely be innocent. I think these are different questions. The modified hypothetical raises the question how strong must the new evidence be to entitle the defendant to a new trial under the relevant state law. I believe that a common standard is that the new evidence must be material, not merely cumlative or impeaching and that it will probably produce an acquittal. Evidence that would establish a 50% or 70% likelihood that the defendant is not guilty would likely produce an acquittal if presented to a jury required to find proof beyond a reasonable doubt.