Taking the Stand by Alan Dershowitz

Author:Alan Dershowitz [Dershowitz, Alan]
Language: eng
Format: epub
ISBN: 978-0-307-71929-4
Publisher: Crown Publishing Group
Published: 2013-10-15T04:00:00+00:00

Let me be clear what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, whose body was never found, 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 that his wife was alive, Justice Scalia, along with several other justices, would tell him, in effect: “Look, your wife may be alive as a matter of science, 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.” The same would be true if DNA evidence proved another person guilty of a murder for which an innocent person was about to be executed. According to Scalia’s view of the Constitution, there would be nothing unconstitutional about executing the innocent man—and then trying, convicting, and executing the guilty man too. Such is the regress of law, and it may get worse if more justices with Scalia’s anachronistic views are appointed to the courts.101

At the moment, the Supreme Court remains closely divided on the issue of innocence in the context of habeas corpus. On May 28, 2013, a 5 in 4 majority—with Scalia in dissent—ruled in a case called McQuiggin v. Perkins that “actual innocence, if proved,” serves as “a gateway” through which a defendant may obtain relief even if he filed his petition beyond the allowable time. The majority cautioned, however, that “tenable actual gateway pleas are rare,” because the defendant has to prove to a judge that “in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Under this daunting standard, the husband who produces his living wife would win, but MacDonald might not, because some reasonable juror somewhere might still find him guilty. Moreover, the court didn’t adequately address the “chicken-egg” problem: How does a confined inmate with no money, no lawyer, and no investigator, “prove” his innocence before receiving a hearing with subpoena power.

Even with this new ruling, it is possible for actually innocent defendants to be imprisoned or executed because they can’t meet the high threshold set by the Supreme Court to prove their innocence.

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