Scalia’s thought process: “Well, he probably did something else wrong anyway.”

September 14, 2009 | By | 23 Replies More

Way back in 1989, I happened to be watching Episode Two of a PBS series entitled “Ethics in America.”  It was a terrific 10-part series that considered compelling topics in ethics. Supreme Court Justice Antonin Scalia was a participant in Episode Two. You can see all of the episodes, including Episode Two here (click on the little “VoD” button next to episode 2).  You might be wondering how I could possibly remember a particular comment from a particular episode from 20 years ago. I do remember: it was burned into my memory because it was so utterly bizarre.

At about the 31-minute mark, the moderator (Charles Ogletree, Jr.) posed a hypothetical. What if you were an attorney and your client told you that he committed a murder a couple years ago? The clear answer is that the attorney-client privilege protects that admission; if you were that man’s attorney, you could not tell anyone else what your client told you in the course of your consultation with him.

Things got much more interesting, as the moderator elaborated on the hypothetical. Assume that your client tells you that after he committed the murder, the police erroneously arrested the wrong man. Further, assume that man has been found guilty by a jury and he is scheduled to be executed. As the attorney, what can you do to protect the life of an innocent man who is about to be executed for a crime committed by your own client who is confessing his guilt to you?

This is a tough issue, right? At the moment where the moderator indicated that the innocent man was about to be executed for a crime he didn’t commit, Justice Scalia spoke up: “Well, he probably did something else wrong anyway.” You can see and hear this statement for yourself at 31:50 in the video. Although I’m certain that Justice Scalia would claim that his utterance was a “joke,” (after all, other participants laughed), it makes you wonder, especially in light of a recent case decided by the United States Supreme Court, In re Davis. You can read about it at SCOTUS Blog:

[Troy Anthony ] Davis was convicted in 1991 of murdering an off-duty Savannah police officer, Mark Allen MacPhail, in 1989. Since his trial, Davis has claimed, seven of the state of Georgia’s key witnesses have recanted the testimony they gave at the trial. Several other individuals have implicated another man — the prosecution’s key witness against Davis — as the shooter.

The Supreme Court ordered a federal trial judge to consider the evidence in light of the claim being asserted by Mr. Davis.

Now consider that Justice Scalia was one of only two dissenters, and that he argued that the federal government should put Mr. Davis to death even under these highly suspicious circumstances. What was Scalia’s reasoning? You can read it here:

Davis can obtain relief only if that determination[of the trial court] was contrary to, or an unreasonable application of, “clearly established Federal law, as determined by the Supreme Court of the United States.” It most assuredly was not. 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. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

Scalia Dissent, p. 2. Is that what we stand for in this country? Executing people who appear to be innocent?

Image: public domain

Image: public domain

I learned about Scalia’s disturbing descent while reading Dan Margolies’ commentary on this case in the September 8, 2009 issue of Missouri Lawyers Weekly (available online only to subscribers).  Margolies quoted Alan Dershowitz, who had this to say about Scalia’s dissent:

If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices [Scalia and Clarence Thomas, who joined Scalia’s dissent] would tell him, in effect, ‘Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead and as for you, Mr. Innocent Defendant, you’re dead too, since there is no constitutional right not to be executed merely because you’re innocent.”

So there you have it: Scalia’s dissent in legalese has been completely punctured by Alan Dershowitz. And if you’re wondering how a justice of the United States Supreme Court could in good conscience sit back content to allow the death of a man who appears beyond all reason to be innocent, I would quote Justice Scalia, speaking while he was assuming the role of an ethics teacher on PBS: “Well, he probably did something else wrong anyway.”

Well spoken, by a man who wouldn’t know a conflict of interest if it smacked him on his head, for instance, during a duck hunt.

Margolies ended his article with another good point, reminding his readers that Pres. Obama has been criticized for announcing that he would seek to appoint judges who demonstrate “empathy.” It makes you wonder how Justice Scalia would have ruled had he had an ounce of empathy.

[BTW, if you want to see an excellent explanation of the importance of criminal defense attorneys, listen to this statement by Jack Litman at the 27-minute mark of this same video.  Extremely well stated.]


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Category: Civil Rights, Court Decisions, Law, law and order, Social justice

About the Author ()

Erich Vieth is an attorney focusing on consumer law litigation and appellate practice. He is also a working musician and a writer, having founded Dangerous Intersection in 2006. Erich lives in the Shaw Neighborhood of St. Louis, Missouri, where he lives half-time with his two extraordinary daughters.

Comments (23)

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  1. Jay Fraz says:

    Good post, this might be a good spot to link to the article I believe you previously wrote on "conservatives" legislating from the bench through the use of "hypertechnicality"(I think that was the term)

  2. Jay Fraz says:

    *additional* Not to mention the concept of "literal interpretation of the law" versus interpretation based on the "spirit of the law". Sounds like Scalia would have totally accepted the agreement from the case that Rakoff just rejected.

  3. Brynn Jacobs says:

    Wow, how disheartening. And recently in the news was the story of a Texas man that was executed in 2004, and was apparently innocent. I keep hoping that the Supreme Court will rule (again) that capital punishment is unconstitutional on the basis of 8th Amendment prohibitions on cruel and unusual punishment, but stories like this do not give me much hope in that area.

  4. Sarah Connor says:

    This comes along the lines of taking things out of context. Appeals of state court convcitions to the Supreme Court occur only after exhaustion of state court remedies. The Supreme Court does not enjoy generalized supervisory authority over state courts. Federal review of state court convictions is limited, is based upon principles of federalism and limited jurisdiction. Empathy is nowhere in the mix; this is a matter of constitutional authority.

    In other words, any state inmate who gets his case to the US Supreme Court has already enjoyed a full realm of due process review: the trial court, the state appellate court, the state supreme court, the federal district court, the federal appeals court, and the US Supreme Court.

    Factual findings, such as "Witnesses A through F did or did not recant" are subject to deferential review. This means that a higher court will typically not second guess the factual findings of a lower court.

    What Erich's post does not mention is that the Georgia Supreme Court rejected petitioner's “actual-innocence” claim on the merits, denying his motion for a new trial.

    Justice Scalia's dissent notes that, "The Georgia Supreme Court look[ed] beyond bare legal principles that might otherwise be controlling to the core question of whether a jury presented with Davis's allegedly-new testimony would probably find him not guilty or give him a sentence other than death. After analyzing each of Davis's proffered affidavits and comparing them with the evidence adduced at trial, it concluded that it was not probable that they would produce a different result."

    What is also not noted in Erich's post is that Davis lost his clemency appeals. Justice Scalia also states that, "When Davis sought clemency before the Georgia Board of Pardons and Paroles, that tribunal stayed his execution and 'spent more than a year studying and considering [his] case.' It 'gave Davis' attorneys an opportunity to present every witness they desired to support their allegation that there is doubt as to Davis' guilt'; it 'heard each of these witnesses and questioned them closely.' It 'studied the voluminous trial transcript, the police investigation report and the initial statements of the witnesses,' and 'had certain physical evidence retested and Davis interviewed.' 'After an exhaustive review of all available information regarding the Troy Davis case and after considering all possible reasons for granting clemency, the Board … determined that clemency is not warranted.'

    Despite Scalia's dissent, Davis will get a fresh shot. His appeal will be heard by the lower court. Scalia's point was simply that Davis had already been afforded due process rights and that his factual assertions had been rejected. Scalia's dissent closes with:

    "Today, without explanation and without any meaningful guidance, this Court sends the District Court for the Southern District of Georgia on a fool's errand. That court is directed to consider evidence of actual innocence which has been reviewed and rejected at least three times, and which, even if adequate to persuade the District Court, cannot (as far as anyone knows) form the basis for any relief. I truly do not see how the District Court can discern what is expected of it. If this Court thinks it possible that capital convictions obtained in full compliance with law can never be final, but are always subject to being set aside by federal courts for the reason of 'actual innocence,' it should set this case on our own docket so that we can (if necessary) resolve that question. Sending it to a district court that 'might' authorized to provide relief, but then again 'mht'be reversed if it did so, is not a sensible way to proceed."

    In sum, Scalia correctly pointed out that the Supreme Court does not review death penalty claims anew. It gives deference to factual findings previously made and exercises its limited authority according to constitutional principles.

  5. Erich Vieth says:

    Sarah Conner:

    You make it sound as though no one was contesting that Mr. Davis already had a fair and full hearing with regard to the fairness of his trial, based on the later fact that 7 witnesses recanted. Why didn't you disclose that three justices in the majority (and presumably others) clearly disagreed with you (and Scalia) when they wrote:

    JUSTICE SCALIA’s dissent is wrong in two respects.First, he assumes as a matter of fact that petitioner Davis is guilty of the murder of Officer MacPhail. He does this even though seven of the State’s key witnesses have recanted their trial testimony; several individuals have implicated the State’s principal witness as the shooter; and “no court,” state or federal, “has ever conducted a hearing to assess the reliability of the score of [post-conviction] affidavits that, if reliable, would satisfy the threshold showing for a truly persuasive demonstration of actual innocence.

    Therefore, the majority of Justices disagree with Scalia on this critical point.

    From your comment, I can only assume that if you were a Supreme Court Justice considering the case of the man described by Alan Dershowitz, you'd let the man be executed for the "murder" of his wife, while it was clear that that woman was still living and breathing (the concurrence also raises this type of scenario). It appears that if you were a Supreme Court justice, you'd claim that your hands were tied, and that the man simply needs to die. You'd cite Judge Scalia's dissent as your legal reasoning. You'd say that the law is only about following rules, regardless of the equities, and regardless of the fact that this is an exceptionally unusual set of facts. You'd hide behind the rules, thereby doing harm by following the rules (see the link 3 comments up).

    And at the end of the workday, you'd walk out of the courthouse clear of conscience because, in your mind, there is nothing that the highest court in the land can do when faced with what appears to be a flagrant miscarriage of justice. "We couldn't help ourselves! Our hands were tied. We are mechanical judges–we are like old-fashioned robots. It's like we're solving math problems up here. We just slap the pre-determined facts into the legal formulas and keep those cases moving–NEXT CASE! The law is not about having a heart. It is not our job to protect the lives of people who appear to be innocent."

    If the above attitude prevailed over the past century of jurisprudence, little black children would still be going to segregated schools.

    And lest you accuse me of letting my heart get carried away and ignoring the law, keep in mind that I am happy with the majority opinion in this case, along with the reasoning set forth in the concurrence. Further, I believe that there are, indeed, times for the mechanical application of legal principles, but that there are also times for courts to set aside most of the law books to do what is right, because all federal judges take an oath to support and defend the Constitution, which includes (see the 14th Amendment) the right to substantive due process. Though the exact meaning of this often debated, it would amaze me that our Constitution should be held up to allow the execution of Petitioner without a meaningful review of these seven witness retractions. Or, as indicated by the concurrence, "it would be an atrocious violation of our Constitution and the principles upon which it is based to execute an innocent person."

  6. Tim Hogan says:

    Sarah Connor, perhaps the Terminator got to you and took control of your mind.

    Since the establishment of judicial review, federal courts have reviewed the abilities of state courts to function in light of federal constitutional principles. Deference is not due to any courts which act so as to affirm any violation of the US Constitution.

    The issue is stark in the Davis case;

    whether claims of actual innocence based upon new evidence unavailable at the time of trial and not able to be reasonably discovered by the Petitioner is required to be accorded any status under the US Constitution where the trial and appellate courts have held previous procedures complied with the due process requirements of the 5th and 14th Amendments of the US Constitution?

    Scalia in his dissent waves his magic wand of "deference is due" and Mr. Davis should die.

    The majority stated plainly that where there is evidence of actual innocence rising to some level as to call the previous processes into constitutional question, some additional review is due` of that evidence.

    The Court didn't say the lower court had to come to any particular result but, remanded for review in light of the evidence presented as to whether such evidence mandated any relief for Mr. Davis.

    Even if this case mandates future "Davis reviews" by federal courts of all death penalty convictions, I'm OK with that in light of the possibility, as I believe we already have, that an innocent accused person might be executed.

  7. Sarah Connor says:

    Well, a few observations. First, I don't care about what Allan Dershowitz says or thinks. Second, citing a dissent is never one's best argument; Scalia's dissent isn't the law of the land and his words won't be used to shove anyone into the gallows. A justice who dissents is simply offering a differing point of view. A court must have jurisdiction to take action and must exercise its discretion within legislative strictures, in this case those strictures were set down by Congress in the Antiterrorism and Effective Death Penalty Act. What harm does it do for the dissent to point out the procedural posture of the case? The majority had already decided that more due process must be afforded.

    Recantations of sworn testimony are always viewed with skepticism; sworn testimony is not lightly tossed aside. These principles become even more pronounced as review has already been conducted by lower courts.

    Do we think that state courts find the notion of executing the innocent acceptable?

    Here is the DA's statement about the case:

    [T]hey claim that seven of nine witnesses have recanted their trial testimony. This is not believable.

    To be sure, they've produced affidavits; a few handwritten and apparently voluntarily and spontaneous, except for concluding with "further the affiant sayeth not." Who wrote that stuff? The lawyers, perhaps?

    The law is understandably skeptical of post-trial "newly-discovered evidence."

    Such evidence as these affidavits might, for example, be paid for, or coerced, or the product of fading memory.

    If every verdict could be set aside by the casual acceptance of a witness's changing his mind or suggesting uncertainty, decades after the event, it is easy to see how many cases would have to be tried at least twice (perhaps ad infinitum).

    Thus the law sets strict standards for such "newly discovered" evidence.

    For example, it cannot be for a lack of diligence that the new evidence was not discovered sooner, and the defendant is expected to present that evidence at the earliest possible time.

    Yet these affidavits were not offered in a motion for new trial until eight days before the first scheduled execution in 2008 seventeen years after Davis' conviction. If this affidavit evidence was so compelling, why didn't they rush to seek a new trial in 2003 when they had most of the affidavits they now rely upon? Or collect those affidavits earlier?

    Each of the now-"recanting" witnesses was closely questioned at trial by lawyers representing Davis, specifically on the question whether they were in any way pressured or coerced by police in giving their statements or testimony. All denied it.

    And while an 80 percent recantation rate – the first in the history of the world ? – may seem to some as overwhelmingly persuasive, to others of us it invites a suggestion of uncanny coincidence, making it very difficult to believe.

    Third, they claim that their "newly discovered evidence" (i.e., the recantations) hasn't been adequately considered by the courts. This is not true.

    The affidavits, in various combinations, had already been reviewed by 29 judges in seven different types of review, over the course of 17 years, before Tuesday's ruling by the U.S. Supreme Court.

    The state Parole Board halted the execution in 2007, saying they wouldn't allow a possibly innocent man to be executed. Then, after more than a year of reviewing all of the evidence on both sides, and hearing from every witness Davis' lawyers presented – including Davis – they refused to grant clemency.

    The trial was fair. Davis was represented by superbly skilled criminal defense lawyers. He was convicted by a fair jury (seven black and five white). The post conviction stridency we've seen has been much about the death penalty and little about Troy Davis.

    The jury found that Davis, after shooting another man earlier in the evening, murdered a police officer who came to the rescue of a homeless man Davis had beaten. Mark MacPhail had never even drawn his weapon.

  8. Erich Vieth says:

    Sarah Connor: I see that you are afraid to answer the Alan Dershowitz example. That's quite telling. In fact, case closed.

  9. Scarlet Letter says:

    Allan Dershowitz's comment is mean spirited and not particularly constuctive. Scalia's "well, he probably did something else anyway" quip would have been better left unsaid in a public forum.

    Dershowitz poses an unlikely, preposterous scenario. What percentage of homicide convictions are achieved without a body? Few to none would be my guess.

    An irrefutable claim of innocence due to the surfacing of a victim thought to be deceased is hardly analagous to belated recantation claims which involve credibility assessments. Where there are two permissible views of the evidence, a fact finder's choice between them has certain procedural consequences. The victim comes to life example is a scenario involving only one permissible view of the evidence.

    Dershowitz's scenario would never play out in the Supreme Court in the first place. Relief would be had in the lower courts.

    I was forced to read Dershowitz in college. I guess I feel like I've done my time. He is a liberal pundit, not a neutral constitutional scholar.

    • Erich Vieth says:

      Scarlet Letter: You are engaged in name calling, not legal reasoning. Whatever you think of Dershowitz (or the concurrence, which also suggested this sort of scenario), it illuminates a problem with the legal principles on which Scalia relies. Your refusal to respond is telling.

  10. Scarlett Letter writes:—"I was forced to read Dershowitz in college. I guess I feel like I’ve done my time. He is a liberal pundit, not a neutral constitutional scholar."

    Is there such a thing? The Constitution is a document designed to pit issues and factions against each other and in the fray equilibrium might be found. Neutrality is overrated. Besides, I'll take a liberal pundit over a conservative pundit any time. At least they're willing to change their mind, and in public.

  11. Sarah and Scarlet:

    You seem to somewhat misunderstand the Dershowitz example. Yes, it is a longshot that such a trial would happen (though it has come up in court from time to time with missing persons). His point is theoretical but it applies to a judicial mindset that holds the process to a higher standard than what the process is supposed to serve, namely justice. Because the trial was correct in all its particulars, this is somehow held to supersede both reality (as in the instance of newly found evidence, and boy have we been finding a lot of that since DNA testing and other forensic methods have come on the scene) and a principle of justice, namely the reasonable doubt standard. Dershowitz means that Scalia and like-minded justices would still maintain the defendent's guilt because the process was rigorous, even though clear evidence that he or she is not guilty may be standing right in front on him.

    Now, I doubt for a minute that under such a scenario Scalia would be such an ass. But the point is valid when considering a system in which the appearance of being right and the momentum of the state backing such appearance up is considered as if not more vital that truth or justice. The fact is, once that machinery gets rolling, nobody wants either to spend the money or take the chance of looking wrong to correct an error, especially after a couple of appeals.

  12. Sarah Connor says:

    Mark, I agree with you that Scalia would not be such an extreme ass as Dershowitz suggests. I urge those who demonize Scalia to consider the possibility that he, and perhaps other jurists, might not be communicating effectively in the modern age.

    Procedure, process, predictablity, and deference all have their place. They are valid considerations.

    Perhaps judges need to be more mindful of the fact that citizens now have instant access to their published opinions. Before the internet, did non-lawyers have ready access to published opinions? Judges have a broader audience than ever before. Perhaps the accusation that there is a lack of compassion or empathy needs to be considered and addressed in plain language in the published opinions themselves. (Not advocating that–just throwing it out there for discussion).

    DNA evidence isn't at all analagous to witness recantation.

    Mark and Erich–Do you not think that it would be risky for our system of justice for the Supreme Court to consider allegations of witness recantation anew? Can you see a slippery slope there?

    • Erich Vieth says:

      This case had an extraordinary number of recantations. It was dramatic and unusual. The Supreme Court doesn't need to worry about a slippery slope because of the highly selective process regarding writs of certiorari. Other federal courts might get burdened, but the Supreme Court seemed to be suggesting in this case that it would get much more attention because the man was about to be executed.

      Slippery slopes are a legitimate concern, but the alternative in this case was ghastly.

      The Internet doesn't turn people against Scalia; it just lets us read his opinions more readily. Scalia causes most of his own problems by taking the legal positions he takes. His personality doesn't help him at all. I've seen him speak in person. He is pompous and arrogant, thinking erroneously that spouting the phrase "original intent" cleanses his highly biased judgment. From the way he snarled about gays, I could only assume that he is also homophobic. His failure to recuse on Cheney's case is merely icing on the cake, proving to me that he lacks the sensitivity and temperament necessary to be a first-rate jurist.

  13. Sarah,

    I think the slippery slope argument is overused and more often than not smokescreen. It credits people on the one hand with being smart enough to do a dodge around a system and then being too stupid to draw a line and say enough.

    Likewise, Scalia's harping always on Original Intent, as if he could possibly know. Even a cursory study of the original constitutional convention demonstrates an profound lack of consensus. The document that emerged is a catalogue of defensive measures to ensure everybody either got what they wanted or were able to keep somebody else from getting something. It's a remarkable piece of jerrymandering. The myth of Original Intent has kept us working on making it work ever since as if there is some singular guiding principle. Consequently, we have developed one—actually several—and layered them over the document. The so-called "miracle in Philadelphia" was not the resultant document itself so much as the fact that laid the groundwork to allow us to make a system that worked. it required a civil war along the way, a few political revolutions, extra amendments to backfill. The theoretical arguments over whether the Constitution is a "living document"—an idea Scalia and his camp deny vehemently—or an edifice set in stone like the ten commandments is functionally pointless, because even in trying to defend it as an iconic instrument interpretation is required, which makes it a living document.

    No, I'm not worried about slippery slopes. I'm more worried about maintaining a flawed process because we're worried about slippery slopes.

  14. tmol54 says:

    DI is fortunate to have the likes of Sarah Conner making well reasoned comments here, whether one agrees with her or not. Unfortunately, harsh and rude responses to her discourage meaningful debate.

    As to the Dershowitz question:

    Claims of "actual innocence" are extremely rare and are based on "factual innocence not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).

    Walking into court with your living wife whom you were convicted of murdering would seem to be a case of "actual innocence."

    But I wonder if witness recantaion is more accurately characterized as "legal insufficiency" rather than "actual innocence"?

    Dershowitz ignores this difference.

    Encouraging polite debate, not harsh rude replies.

  15. Niklaus Pfirsig says:

    First, Scalia's remark indicated a prejudice on his part that should not exist in legal the legal process.

    If he did do something else wrong, would that something else deserve the same punishment as murder? If you extend this line of reasoning, would it then be acceptable rationalize that someone who appealed a murder trial on grounds of new evidence and was denied on a technicality deserved execution because of a few moving violations 20 years ago?

    While the courts may be skeptical of new evidence, recantations and such, the purpose of the appeals process is in part to allow for the introduction of new evidence and testimony, that was not available at the time of the trial.

    Scarlet, I know of one case where a man was convicted of killing his wife even though no body ever found, many people were bribed to witness against him, and at one point, a polaroid photo was recieved from an anonymous source in Greece showing a woman who looked very much like his wife.

    the man was tried and convicted by the media long before he was arrested, with the case being kept in the media by his inlaws. Read about it here

  16. Erich Vieth says:

    OK you people who think that the rules are always and forever the rules. Charles Dean Hood had a fair trial, right? But not it appears that his judge and his prosecutor were having a secret affair, contemplating marriage and traveling together around the time of this trial. The Court of Appeals says that Hood should have raised the issue at the time of trial even though the judge and prosecutor were keeping it secret back then.

    I maintain that rules are critically important, but so is discretion and fairness, especially when a case stinks to high hell.

  17. tmol54 says:

    no one said on this blog that they "think that the rules are always and forever the rules. "

    no need to be condescending unless you want to stifle debate.

  18. tmol

    You seem to react to pointed rebuttal as if it's an intended insult. No one is being condescending, no one so far has been rude. At least, not in my opinion.

  19. Scarlet Letter says:


    Well, if Congress cuts Sonja Sotomayor slack on her racist "wise latina woman" comment (made repeatedly off the bench at public speaking events) then I think Scalia should be cut some slack also. Scalia's comment was flippancy, and no more.

    I read up on the Nashville case you referenced in this lengthy article:

    I see no controversy in the Perry March case. Circumstantial evidence abounds. The law makes no distinction between the weight to be given to circumstantial versus direct evidence. This is a standard jury instruction in criminal cases.

    Freedom is very precious. But the reality is that juries make findings of guilt based upon circumstantial evidence every day of the week. They do so based upon credibility findings that reviewing courts, like the Supreme Court, are not able to make.

    The Troy Anthony Davis case has become politicized by anti-death penalty opponents. Like Mumia Abu-Jamal, Davis is an African-American accused of murdering a white police officer. Death penalty opponents pick that fact pattern because it is more likely to stir up emotions. The band wagon fills up quickly. Mentally slow defendants and women on death row are also the darlings of the anti-death penalty movement.

    Just watch. When it comes time to execute Scott Peterson for the death of his pregnant wife–a conviction based entirely upon circumstantial evidence–the death penalty opponents will be missing in action.

    I trust that readers will correct me if I'm wrong here, but what is it exactly that death penalty opponents do to support meaningful reform in the criminal justice system? They should be advocating for more police officers, held to statewide standards of education and competence, who are paid a decent wage such that any tempation to engage in illegal activity is lessened.

    Take a town of 25,000 that is policed by a sheriff elected to partisan office leads a squad of ten high school educated officers paid slightly less than minimum wage. Do you expect this formula to result in professionalism? What percentage of law enforcement agencies in this country fit that profile?

    How many death penalty cases seem "close" because of investigations that would have been improved by greater manpower, professionalism, training, or access to forensic laboratory services?

    Do the death penalty opponents beat the drum for more police? No, many death penalty opponents are drunk with anti-establishment, hate America rhetoric. The Hollywood elite, like the openly socialist Ed Asner and the left-leaning Mike Farrell, are drawn out of the woodwork for causes like this.

    Meanwhile, widows and orphans of sworn police officers are wondering what additional process can possibly be due after two decades of litigation of the same issues.

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