SCALIA: "Mere factual innocence is no reason not to carry out a death sentence properly reached."

[malthaussen]

45. Legally, not at all.

The Court reaches a decision based on evidence presented. If insufficient evidence was presented to result in acquittal, then the sentence was properly arrived at. The emergence of later evidence does not invalidate the court's decision. One might argue, if one had a concern for equity, that the emergence of such evidence is grounds for a retrial or re-assessment of the case, but there is nothing in law that requires it. Mr Justice Scalia's opinion is factually correct, but morally repugnant.

You must remember that the purpose of the Court, the purpose of the Law, is not to find the truth, but only to determine what is probable beyond a certain level of doubt. If the verdict and the truth correspond, then so much the better, and normally this is an aspiration of the law. The procedures developed are an attempt to arrive at this correlation, but not all cases are cut-and-dried.

It's rather like science, in one way. Scientific truth is only so good as our instruments of observation and measurement. It may often happen that an experiment is procedurally correct and complete, but returns results that are later discovered to be incomplete or incorrect, simply because technical improvements have improved the evidence. That results in re-writing the textbooks, but no one would suggest incompetence or ill-will on the part of the researcher when this happens. They did they best they could with the tools at hand. (For example, when I had my stroke, the initial ultrasound discovered no infarct, while the MRI found three. The former was properly done, just not capable of detecting the defect)

For the authoritarian, and this is what this ruling is all about, make no mistake, there is no acceptance of the concept of flexibility or adaptation to circumstances or new evidence. And when one is a strict authoritarian in government, the sacredness of the decisions made by authority override all other considerations (you can see this, in fact, in the claim that "my second amendment rights are more important than your dead child&quot . The governing power can not admit error under any circumstances. (This is why, for example, until the 19th century truth was no defense in a libel case) Mr Justice Scalia was firmly within this tradition.

-- Mal