Speaking of that worthless scumbag Scalia, this, were we living in a sane nation, would be shocking:
Thirty years after their convictions in the rape and murder of an 11-year-old girl in rural North Carolina, based on confessions that they quickly repudiated and said were coerced, two mentally disabled half brothers were declared innocent and ordered released Tuesday by a judge here.
The case against the men, always weak, fell apart after DNA evidence implicated another man whose possible involvement had been somehow overlooked by the authorities even though he lived only a block from where the victim’s body was found, and he had admitted to committing a similar rape and murder around the same time.
The startling shift in fortunes for the men, Henry Lee McCollum, 50, who has spent three decades on death row, and Leon Brown, 46, who was serving a life sentence, provided one of the most dramatic examples yet of the potential harm from false, coerced confessions and of the power of DNA tests to exonerate the innocent.
***In 1994, when the United States Supreme Court turned down a request to review the case, Justice Antonin Scalia described Mr. McCollum’s crime as so heinous that it would be hard to argue against lethal injection. But Justice Harry A. Blackmun, in a dissent, noted that Mr. McCollum had the mental age of a 9-year-old and that “this factor alone persuades me that the death penalty in this case is unconstitutional.”
The exoneration based on DNA evidence was another example of the way tainted convictions have unraveled in recent years because of new technology and legal defense efforts like those of the Center for Death Penalty Litigation, a nonprofit legal group in North Carolina that took up the case.
Kill ’em all and let God sort ’em out, right Fat Tony? You might wonder where our “strict constructionist” are getting their legal advice in some cases:
Justice Antonin Scalia made this point in a 2011 dissent chastising the majority for its blithe acceptance of “government-funded studies” that “did not make an appearance in this litigation until the government’s merits brief to this court.”
But “Supreme Court briefs are an inappropriate place to develop the key facts in a case,” Justice Scalia wrote. “An adversarial process in the trial courts can identify flaws in the methodology of the studies that the parties put forward; here, we accept the studies’ findings on faith, without examining their methodology at all.”
The net result, he said, is “untested judicial fact-finding masquerading as statutory interpretation.”
At least the studies that Justice Scalia complained about were submitted by a party to the case and thus were likely to be closely examined by the other side.
Most of the information from the amicus briefs recently cited by the justices was not subjected to even that level of adversary scrutiny. Only 28 percent of the cited materials drew a response from one of the parties in the case.
In the Hobby Lobby case, Justice Samuel A. Alito Jr. pushed back against the recent trend, refusing to consider “an intensely empirical argument” in an amicus brief. “We do not generally entertain arguments that were not raised below and are not advanced in this court by any party,” he wrote.
Not so, Professor Larsen wrote in a recent blog post. “This descriptive statement by Justice Alito about Supreme Court practice is simply incorrect,” she wrote.
Consider these examples.
In a 2011 decision about the privacy rights of scientists who worked on government space programs, Justice Alito cited an amicus brief to show that more than 88 percent of American companies perform background checks on their workers.
“Where this number comes from is a mystery,” Professor Larsen wrote. “It is asserted in the brief without citation.”
In a 2012 decision allowing strip searches of people arrested for even minor offenses as they are admitted to jail, Justice Anthony M. Kennedy cited an amicus brief to show that there are an “increasing number of gang members” entering the nation’s prisons and jails. The brief itself did little more than assert that “there is no doubt” this was so.
And in a 2013 decision, Justice Stephen G. Breyer cited an amicus brief to establish that American libraries hold 200 million books that were published abroad, a point of some significance in the copyright dispute before the court. The figure in the brief came from a blog post. The blog has been discontinued.
In an interview, Professor Larsen said she was struck by how often justices cited the amicus briefs themselves as sources of authority, as opposed to the materials collected in the briefs. “It really makes you wonder how much digging the justices are doing,” she said.
If we are settling law on the basis of blogposts, Lady Justice isn’t blind, she’s stupid and a sociopath.
Roger Moore
I’m glad to see that Scalia is such a good Catholic that he knows more about the Church’s position on capital punishment than the Pope.
srv
You forgot the figurative Ham Sammich.
Tony is a Big Picture guy. You people need to stop waving all this minutae around like the world can run on that.
BGinCHI
I hate that fucking guy.
Certified Mutant Enemy
This probably shouldn’t surprise anyone: North Carolina Republicans Used This Exonerated Inmate To Scare People Into Voting GOP
Alex S.
So is he still regarded as the greatest legal mind currently on the Supreme Court? How did he ever get that reputation?
Also, off-topic and because I can:
Here’s a funny-or-die video: Cop vs. Black Guy
the Conster
If I were an evil mastermind out to destroy America by undermining all of its institutions and torpedoing its principles, I couldn’t do a more thorough job than the Federalist Society, ALEC and the Club for Growth has done.
Punchy
Wait a minute. No he didn’t. Instead, he argued in acceptance of such a thing existing.
cckids
Apropos of Fat Tony & Co just going with their guts rather than, you know, FACTS, I give you this.
Truthiness rules, for conservative minds, anyway. Facts, schmacts.
Violet
I think Lady Justice is off in a corner crying while Dick Justice is running around yelling at her about how she made him hit her.
Roger Moore
@Alex S.:
I saw a recent article saying that Roberts prefers to ask Alito to write the especially challenging opinions, so it sounds as if he’s losing that reputation. That said, I get the impression that he used to be a lot sharper but has mentally slowed down over the years. It’s not surprising, since a lot of people don’t keep their mental A game into their late 70s. This is part of the reason for questioning lifetime appointments to the Supreme Court.
Howard Beale IV
Sad to say that when it comes to SCOTUS, they’re a hundred years behind the times and relies too much on others to do the work they should be doing themselves.
Face
Someone needs to send Scalia an amicus brief about the benefits of high cholesterol, eating dozens of donuts, and cleansing one’s insides with copius amounts of transmission fluid.
Mike in NC
@the Conster: Also, too: Chamber of Commerce.
the Conster
@Mike in NC:
Throw AIPAC in there too.
Lee
Another responsible gun owner 11 yr old kills self when asked to do chores
Trollhattan
@Roger Moore: Given radically radical Pope Frank, I wonder when Nino is going to bail for the Southern Baptists–the religion that supported slavery is calling you!
currants
The law is not about justice. It’s about power and politics. Full stop.
Trollhattan
@Lee:
Aw jeez, that’s sad and sick. And Arizona remains free.
Anoniminous
Trying to derive a better adjective for Tony than “fat.” I like “psychopathic son-of-a-bitch” but it doesn’t roll off the tongue.
Alex S.
@Roger Moore:
Very interesting. They’re running out of (good) legal minds.
Jamey
And a ‘Juicer.
Mnemosyne
It’s true that someone who would rape and murder an 11-year-old deserves to die in prison (though I prefer of natural causes after a good 40 or 50 years in a cell), but can we at least make an effort to be sure we have the right frickin’ guy?!?
In the Chicago area, there was the Rolando Cruz case. While Cruz was trying to convince the police and prosecutors that he was innocent, the real criminal killed at least two more victims.
Mandalay
@Alex S.:
I have wondered about that point as well. Along with a ton of other doubtful claims from the right that regularly get presented as facts:
– Paul Ryan is an intellectual heavyweight.
– Newt Gingrich is the “ideas man” of the Republican Party.
– America is a center right nation.
– Reagan was a beloved figure.
– Raising the minimum wage causes job losses.
– Reducing taxes on the rich increases tax revenue.
– etc…
Constantly repeating that drivel doesn’t make any of it true, but our Village stenographers have a job to do.
Roger Moore
@Anoniminous:
The nickname is based on a Simpsons character, so you have an uphill battle ahead of you.
@Alex S.:
I think this is a general problem they’re facing in more than just the legal side of things. They’ve built a whole alternative “education” system that’s about indoctrinating people into their views rather than teaching them how to think, probably because they fear that independent thought will convince people to abandon the group. That may help their social cohesion and prevent defections, but it stunts the minds of the people who go through it.
rikyrah
As for another example of White folks stealing Black folks shyt and not paying for it..
…………….
NIH finally makes good with Henrietta Lacks’ family — and it’s about time, ethicist says
Over the past six decades, huge medical advances have sprung from the cells of Henrietta Lacks, a poor, African-American mother of five who died in 1951 of cervical cancer. But Lacks never agreed that the cells from a biopsy before her death taken could be used for research. For years, her own family had no idea that her cells were still alive in petri dishes in scientists’ labs. They eventually learned they had fueled a line called HeLa cells, which have generated billions of dollars, but they didn’t realize until this spring that her genome had been sequenced and made public for anyone to see.
On Tuesday, the National Institute of Health announced it was, at long last, making good with Lacks’ family. Under a new agreement, Lack’s genome data will be accessible only to those who apply for and are granted permission. And two representatives of the Lacks family will serve on the NIH group responsible for reviewing biomedical researchers’ applications for controlled access to HeLa cells. Additionally, any researcher who uses that data will be asked to include an acknowledgement to the Lacks family in their publications.
The new understanding between the NIH and the Lacks family does not include any financial compensation for the family. The Lacks family hasn’t, and won’t, see a dime of the profits that came from the findings generated by HeLa cells. But this is a moral and ethical victory for a family long excluded from any acknowledgment and involvement in genetic research their matriarch made possible.
It took more than 60 years, but ethics has finally caught up to a particularly fast-moving area of science: taking tissue samples for genetic research. Thanks to the efforts of a dogged journalist, some very thoughtful science leaders in Europe and the U.S., and an ordinary family willing to learn about a complex subject and then to do the right thing to help you and me and our descendants, a long-standing wrong has now been fixed.
http://www.nbcnews.com/health/health-news/nih-finally-makes-good-henrietta-lacks-family-its-about-time-f6C10867941
Roger Moore
@Mnemosyne:
No. SATSQ.
dmsilev
@rikyrah: That’s long long overdue, but damn they should by all rights have gotten a good-sized chunk of change as well.
Good book on the subject (from a few years ago): “The Immortal Life of Henrietta Lacks” by Rebecca Skloot.
EDIT: Now that I’ve read the linked story, I see that they discuss the book in detail.
Trollhattan
@Lee:
And from liberal Idaho we have a university chemistry professor shooting himself in the foot (literally) during class.
I remember those “natural male enhancement” pill ads on my teevee, but did not ralize the “pill” was a gun license.
WaterGirl
@rikyrah: That victory is a big deal, but I do not understand why the family didn’t go after a chunk of the profits.
Edit: written before reading dmsilev. Interesting that we both used the word chunk!
cmorenc
I grew up in the county (Robeson, NC) and town (Lumberton) where this incident happened, and knew Joe Freeman Britt, the notoriously gung-ho death-penalty-seeking District Attorney who originally prosecuted these men 30 years ago, and following their exoneration this week declared that he still believed them guilty of the crime. Back in the mid-80s, roughly the same era as this case, I observed Joe Freeman Britt trying several serious criminal cases, including a murder case (though not this one) and he’s brilliantly, terrifyingly talented as a prosecuting attorney, turning witness examination and opening and closing statements into a tour de force dark art form. It surprises me not at all that these men’s original defense attorneys got nowhere at their initial trial attempting to undermine the credibility of their confessions due to the intensely coercive circumstances and the defendants’ limited mental capacity, or the complete lack of other evidence tying them to the crime – I have no doubt that Joe Freeman Britt walked all over the defense like an elephant trampling ants in that courtroom.
One of his stock tactics in opening statement in homicide cases sticks to memory:
…all delivered with the intonations of a talented fire-and-brimstone preacher. Damn, after Joe Freeman’s opening statement, it was hard for jury and spectators alike to not be ready to promptly send defendants into the hellfires of death row.
Mandalay
@rikyrah: Not completely OT, The Immortal Life of Henrietta Lacks is one of the best books I have ever read.
Mnemosyne
@dmsilev:
IIRC, there have already been some quiet financial settlements behind the scenes, so this was supposed to be more of a corrective to the fact that her cells were used without her or her family’s consent. I’m guessing that none of it would ever have come out except for Skloot’s book, which is really an excellent read. It does a great job of telling the two-track story of how the science works and of Skloot’s meeting (and eventually befriending) Lacks’s family.
Frankensteinbeck
@Mandalay:
Yes, my first reaction on hearing
is ‘By who?’ Talking heads on TV? They won’t turn against him until he drools and his eyes roll in his head on live television. He says the asshole things they like to hear.
Paul in KY
@Alex S.: Some of that seems plausible, sad to say.
Paul in KY
@Face: That’s a damned good idea. Just say it came from the White Patriot’s Society.
Paul in KY
@Lee: What the Hell kind of chores did they want him to do?!?!
dmsilev
@WaterGirl: It’s a good word…
bio101
@rikyrah:
You know that in the 50s, there was no such thing as informed consent or HIPAA, and no one would have even expected to be paid for something the doctor scraped out of their cervix, right? The only difference between what happened to Henrietta Lacks and what happened to probably thousands of other hospital patients of all races is that her cells actually grew in culture, and the only thing “””stolen””” from the Lacks family was recognition, which is being rectified. The story surrounding HeLa cells and the Lacks family has enough legitimate tragedy in it without trying to make it sound like someone woke up in a bathtub full of ice with a kidney missing.
Paul in KY
@WaterGirl: Might take another type of legal action or further legal action against other parties.
Paul in KY
@cmorenc: Had you ever seen the brothers who were unjustly convicted?
CaseyL
I don’t recall all of the details of the case, but some years back SCOTUS refused to hear an appeal of a capital case where the appellant said new facts had come to light.
The Supremes refused cert on the basis that new facts were not a basis for appealing the verdict.
IOW, someone facing the death penalty had facts to support their innocence of the crime for which they’d been convicted, and SCOTUS said “not interested.” IIRC, either Scalia or Thomas wrote the opinion.
It got quite a bit of attention at the time, the idea that innocence was not a sufficient factor to overturn a death penalty on appeal.
This is more of the same.
SatanicPanic
@Lee: jeezus. that is awful. reason number #100000000 why guns + kids = terrible idea
Schlemizel
@Anoniminous:
The real reason its Fat Tony is because that sounds like the sort of mob moniker a thug like Just-us Scalia would have. You can imagine the photo, front page, above the fold, Antonin holding his handcuffed writs in front of his face: “Antonin “Fat Tony” Scalia finally brought to justice.
Tom
@Anoniminous:
I’m assuming it’s a reference to the “Fat Tony” character from the Simpsons aka the president of the Springfield Legitimate Italian Businessmen’s Club.
Ahem.
jl
One good idea that I did get from Greenwald, was that laypeople should try to read the SCOTUS decisions, especially those of the reactionary contingent, because it did not take any legal training to see that they were writing bunkum. I think Greenwald overstated, it, but quite a bit of truth in what he said, especially for Scalia and Thomas. Roberts is more sophisticated and I need to refer to SCOTUS blog or Lawyer Guns and Money blog for help to see what he is making stuff up and when he is just saying sh*t.
Sherparick
I read that a majority of Republicans in Texas have no problem executing innocent men or women because it sends a message about how to tough on crime they are. Is that true?
Truly, Scalia and Alito are two of the worst justices to sit the court James McReynolds and the authors of the most outrageous opinon since Roger Taney (the founder of hte “Originalist” School and honestly, I suspect that Scalia, Alito, and Roberts think Dred Scott was correctly decided).
Also, via Jonathan Bernstein at Bloomberg, he references Matthew Dickinson putting Ron Fournier out with the trash: http://sites.middlebury.edu/presidentialpower/2014/09/02/obama-fdr-and-the-summer-of-pundits-disconnect/
gene108
Slightly off-topic, but Asst.DA’s jump up to being DA’s and launch substantial political careers.
Why is being a public defender not an option for launching a political career?
*****************************
@Roger Moore:
It is interesting the number of professed Catholics, in this country, who are very selective about what parts of the Church teachings they accept. Besides birth-control, which seems to be generally ignored most everyone here, plenty of rich, conservative Catholics probably do not pay much consideration to the utterances about Global Warming, protecting the environment, and getting pissy that the current active Pope wrote trickle-down economics and income inequality are un-Christian.
Trollhattan
@gene108:
Don’t actually know, but willing to bet they’d get nailed with the “soft on crime” hammer that forms the backbone of a lot of local and state campaigns. For whatever reason, I’ve known at least a dozen PDs and no prosecutors, and am much better versed in courthouse politics from their viewpoint.
SFAW
@jl:
You mean Clarence “I was a sock puppet before ‘Sprezzatura’ was even born” Thomas?
Mandalay
@CaseyL:
IANAL but wouldn’t new evidence be something for a lower court would address?
Mandalay
@CaseyL:
IANAL but wouldn’t new evidence be something for a lower court would address?
Mandalay
@CaseyL:
IANAL but wouldn’t new evidence be something for a lower court would address?
Trollhattan
@Tom:
Lovingly voiced by Joe Mantegna, “real” on-screen mobster.
elmo
@Roger Moore:
C’mon. He was black, wasn’t he? What more do you want?
Cripes, you want us to get the specific black guy?
SFAW
@gene108:
Because defending all those crinimals – ‘specially those darker-complected ones – is un-American. If’n they REALLY were innocent, why would they need a lawyer, right?
rikyrah
@gene108:
Slightly off-topic, but Asst.DA’s jump up to being DA’s and launch substantial political careers.
Why is being a public defender not an option for launching a political career?
*****************************
Because the kind of Public Defender that can beat the government is :
1. way too smart
2. Usually too independent
for the politicos to support.
In order for a PD to make a name for him/herself, that means that they have taken on Law Enforcement and shown them to be either/and:
1. incompetent
2. corrupt.
Way too much of a challenge to ‘ the system’, for the ‘system’ to embrace them for higher political office.
they might make it as an outside candidate, but no, they would never be pushed by the political party initially.
elmo
@Mandalay:
They do. These cases get to the Supreme Court because the lower court has already ruled. In the specific case in question, I think the lower court ruled that the law did not allow for “new evidence” of actual innocence to be introduced unless the defendant could prove that the “new evidence” was completely unavailable at the time of trial.
So then it gets appealed, based on the quirky reasoning that it’s a violation of the Constitution to imprison or execute an innocent man. Nonsense, said the Court, show us in the Constitution where it says that! And sure enough, it really doesn’t. You’re entitled to a particular process, says the Court, not to a particular result. Even if you can prove your innocence beyond a reasonable doubt – beyond any doubt – if the process is over and you lost, that’s your tough luck.
Omnes Omnibus (the first of his name)
@Mandalay: It is not a situation of trying to introduce new evidence at the Supreme Court level; that doesn’t happen. “New evidence” in this context is evidence that was not available at the time of the trial – often DNA test results that could not have been performed at the time of original trial. Defense attorneys would have filed a post-conviction motion in the trial court to have the verdict set aside because of the new evidence. If the trial court denied the motion, the issue would eventually end up in the Supreme Court.
the Conster
OT, but seeing Alex Pareene’s byline at Sully’s makes me happy. More Pareene less Sully!
Anoniminous
@Roger Moore & et. al:
Didn’t get the Pop Culture reference as I’ve never watched the Simpsons.
Tokyokie
@Anoniminous: I’ve long been calling him “Tony the Chin,” for no other reason than it sounds like a business associate of Albert Anastasia.
Anyway, I wish we lived in a world in which the likes of Scalia could someday stand trial for a serious crime he did not commit, represented by a court-appointed lawyer.
Amir Khalid
@the Conster:
For me, Alex Pareene was the last halfway decent writer still at Salon. Now he’s gone too? Crap.
BGinCHI
First para of Pierce’s take on the Loosiana judge who upheld the gay marriage ban:
Priceless.
the Conster
@Amir Khalid:
The Hack List was one of the best.things.ever. The last one where each hack was skewered in their particular writing style was fucking brilliant. He’s at First Look Media now working for one of those billionaire patron types, where no one will ever find him, sadly.
Amir Khalid
@BGinCHI:
A song for the judge.
BGinCHI
@Amir Khalid: What hump?
Roger Moore
@Amir Khalid:
You’re looking at it wrong. Now you have one fewer website taking up your time.
Trollhattan
@Anoniminous: Wow, did you ever just miss out.
Jebediah, RBG
@rikyrah:
Why the fuck aren’t they getting any money? That seems fucked up to me.
BGinCHI
Anyone else see that Charles Johnson hatchet job on Michael Brown, alleging him to have had a criminal record as a juvenile?
http://talkingpointsmemo.com/livewire/michael-brown-felony-convictions-juvenile
What a fucking piece of shit.
Mike in NC
@BGinCHI: Isn’t Louisiana also attempting to ban all abortions?
Jindal / Gohmert 2016 !!!
maya
@Schlemizel:
Actually, in the photo that John Cole+0 provided, Scalia is giving us viewers the sophomoric classic, “read between the dotted lines” hand pose. Look at it again.
Mnemosyne
@BGinCHI:
Just to make sure everyone is clear, the Charles C. Johnson who made this records request is NOT Charles “Little Green Footballs” Johnson. LGF’s Johnson has been really good on exploding the right wing bullshit about Brown — he was one of the first to point out that the x-ray posted by “Gateway Pundit” on a story about the cop’s (alleged) injuries was deliberately misleading.
Jebediah, RBG
@Schlemizel:
Would have been nice if some of his more egregious writs had been handcuffed before they saw the light of day.
BGinCHI
@Mnemosyne: Yeah, sorry. I did provide a link though, which has Charles Cockface Johnson’s ugly mug and tweets.
That dude needs…..OK, not finishing that sentence.
srv
Mnemosyne
@BGinCHI:
No worries. Some people haven’t gotten the memo about the LGF guy’s Cole-ization, so I just wanted to clarify ahead of time. :-)
Tone In DC
This kind of shit will make me wish for a meteor.
David in NY
@Mnemosyne: Thank you. I was feeling confused about this.
Mnemosyne
@Tone In DC:
FWIW, the Cruz case was one of the ones that convinced ex-governor George Ryan to suspend the death penalty in Illinois and commute everyone’s sentence to life without parole. I’m not sure he would have done it if he hadn’t been headed to the big house himself (on corruption charges), but he did do it.
Belafon
@BGinCHI: I believe Cockface is what the middle C stands for.
Roger Moore
@Belafon:
How dare you imply that my private parts look like his face! You are asking for it.
Jebediah, RBG
@Mnemosyne:
Well, I’ll admit tat when Cockface Johnson first popped up in the news, I was dismayed…”oh no, the LGF guy went back to Team Evil?”
Villago Delenda Est
Scalia needs to be lethally injected the way they do it in Oklahoma or Ohio. As botched and as painful as possible.
kc
Edited b/c I got confused & thought this was an open thread.
Sneaking upstairs now.
kc
@BGinCHI:
Someone on Twitter said he looks like a muppet abortion.
I feel guilty for even typing that . . .
jonas
To be fair, Scalia is the guy who argued that being innocent isn’t necessarily grounds to not execute you.
Sociopath doesn’t begin to describe him.
cmorenc
@Paul in KY:
No, they were from over in Red Springs, 17 miles west of Lumberton – our only reason for ever going over there was during the years when it was legal to sell beer in Red Springs, but not yet in Lumberton. You could buy beer in Lumberton at a local beer bootlegger’s house in a rough section of town, who sold it out of a refrigerator on his back porch, but at twice the prevailing retail price of most legal beer sales outlets. OTOH the only i.d. you needed to furnish to the bootlegger to buy beer from him was a picture of a dead President.
rikyrah
@Tone In DC:
Cruz came within 72 hours of the needle….
TWICE!
And he was innocent
Chet
The Onion: Death Row Guard Has Always Had Soft Spot For The Innocent Ones
Paul in KY
@cmorenc: Thank you for your answer.