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?

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.]