Thursday, August 20, 2009


Today I'm taking a break from posting so I can study the Troy Davis case. Earlier this week, the United States Supreme Court issued an "extraordinary" order directing a lower Federal court to review a convicted death row inmate's claim that he is "actually innocent." To untrained ears, it may sound strange to call such an order "extraordinary." After all, if the man is innocent, it is hardly "extraordinary" to save him from execution. But we're talking about law here, not humanity or even common sense. Once written, positive law muddles a question; even the most ordinary, obvious things suddenly become "extraordinary" and "unprecedented." Justice, as ever, has nothing to do with it. You learn how to forget justice in law school.

It is also "extraordinary" for the Supreme Court to do anything at all during the sleepy summer recess, let alone intervene to save potentially innocent black men from southern lethal injection tables. Supreme Court justices have more important things to do in the summer, like go on safaris and watch operas. After all, they work hard from October to June. They need some down time. All that talk about collateral estoppel and jurisdiction is exhausting.

Justice Antonin Scalia wrote a dissent to this "extraordinary" order. In essence, he wrote that the Constitution poses no barrier to a State executing an "actually innocent man," as long as he receives a "full and fair trial on the merits." After all, the words "innocent" and "execution" don't appear in the Constitution. And we need some finality in our justice system; we can't just free people who say they're innocent, even if all the State's witnesses recant their testimony and there's no direct physical evidence linking the defendant to the crime. Actual innocence, in other words, does not save you from "legal guilt." It doesn't matter how tainted the legal process might be; once a jury speaks--even on the basis of admittedly false testimony and perjured facts-- you're pretty much done.

Yes, you read it right. And yes, you might even wonder whether satire is even necessary in these circumstances.

But satire is necessary. It is necessary to combat foolishness like this. It is necessary to illustrate how counterintuitive the law can really be. That is why I am taking my time to grasp Justice Scalia's latest ode to positive law and procedure. Tomorrow, I plan to castigate this madness with vigor.

Moments like these make me realize that I will never exhaust the satirical well. As long as people like Justice Scalia breathe, I will have ample opportunity to mock callous absurdity.

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