Justice for All…

I’m a liar.

Not something easy for a History Nerd to admit, given my vocational and avocational dedication to history, to finding the truth, as much as it can be known, and as much as it’s ever “the” truth.

But the reality is, in some of the words I have penned over the years I’ve said things I believed to be untrue, knew objectively were false, in the name of spreading civic values. Two book reviews in yesterday’s NYT showed me the error of my ways.

I’ve written and we are taught that our great republican nation is a country of laws, not men. (Of course, of late certain Republicans, Supreme Court justices, and Catholic bishops have preferred to stress the specific prerogatives of men, and give women less of a say in certain arenas, such as public health, but that’s another story…) That noble concept means, in a nutshell, that we govern our society and administer its courts by written principles that everyone can turn to, and can feel secure knowing they are applied equally to all, high and low, rich and poor.

All right, all right, stop laughing now. No, the book reviews didn’t just make me realize that the concept of laws, not men, is sometimes hokum. But the books in question take a look back at two recent legal battles that too clearly show how the system is too often stacked against the powerless, the marginalized, the detested.

Review #1 was of Flagrant Conduct by Dale Carpenter. The author looks at the details of the case Lawrence v. Texas, which overturned sodomy laws in the United States. The NYT review introduces us to the biracial gay couple at the heart of the legal dispute, and to the deputy who arrested them, a law officer notorious for inflating minor offenses into something major. Of the four officers at the scene of the “crime,” only he saw anal sex taking place. Factor in that one of the accused men was drunk and belligerent, and the couple was biracial, and you have a scenario in which the deputy chose to take the most extreme action—arrest the men.

Turns out no one really believed the deputy’s claim that he saw the men having sex, and the prosecutor wasn’t eager to touch the case. But political pressures kept it alive, all the way to the U.S. Supreme Court. Seventeen years before, SCOTUS had affirmed a Georgia law making sodomy a crime. One of the justices in that 5-4 majority, Lewis Powell, later admitted he had made a mistake. Surely, if straight couples have an expectation of privacy in their homes, gay couples should  too? This time the court agreed.

The second review was of Anatomy of Injustice by Raymond Bonner. He looks at the case of a young South Carolina man who was sentenced to death for murdering an elderly, well-off, white woman. The accused murder was poor, black, and had an IQ of 61. Guess how this case turned out. Edward Lee Elmore was sentenced to die after the jury deliberated for under three hours, following severely underwhelming work by his public defenders. And it wasn’t like Elmore was equipped to provide much help in his own case. As reviewer Kevin Boyle notes, the accused’s mental capacity left him unable to tell time, “much less able to follow the intricacies of the case.”

Thankfully, Elmore had a savior, in the form of law student Diana Holt. She studied the details of his case and uncovered the prosecution’s many omissions and deceptions. The state’s attorneys were not looking to conduct a fair trial; they simply wanted a conviction. She also faced the harsh reality of the SCOTUS decision in Herrera v. Collins (1993), that said a person duly convicted of murder and given a death sentence could not claim a right to another trial if new evidence appeared proving his innocence. (In a dissent, Justice Harry Blackmun wrote, “Nothing could be more contrary to contemporary standards of decency…or more shocking to the conscience…than to execute a person who is actually innocent.”)

But through her tireless work, Holt was able to convince a South Carolina judge to change Elmore’s sentence to life in prison. Next she won a new trial for him, based on his original attorneys’ incompetence. Elmore is today free, though first he had to go into court and confess to a murder he still says he never committed.

These two stories, along with other recent ones (here’s a doozy from Virginia, involving the grossly unrepentent county attorney Gary Close), plus the number of wrongly convicted Death Row inmates later freed, often through the work of the Innocence Project, belie so vividly those platitudes I and others have spewed:  A nation of laws, not men. Justice is blind. Innocent until proven guilty.

And the two cases featured in the book reviews also led me to this thought: Antonin Scalia is a blight on whatever good name the SCOTUS still has. Put aside his putative legal brilliance: the man is a bully, and as his comments on Blackmun’s dissent cited above show, his supposed wit rests too often on belittlement. I’m amazed at how many of the prominent “moral” Catholics in this country use their faith as a cudgel against the people they don’t like. In the Texas sodomy case, reviewer David Oshinky writes, Scalia “stunned” his audience with a facile comparison between imaginary laws on flag-pole sitting (!) and the rights of gay Americans. And in 2009, he seemed to gleefully restate the findings in Herrera, though in a losing cause. Troy Davis of Georgia was seeking another trial after many witnesses who first testified against him recanted and fingered another man for murdering a cop. There seems little question that Davis was a bad guy, but less proof he was a cop killer. The Court agreed to give Davis another trial. Scalia wrote, “This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

Read that again, and then let it sink in. You can be “actually innocent,” and it’s still ok for the government to kill you, as long as you received a fair trial. Though as the Elmore case showed, that’s a big if. For Davis, the new appeal did not lead to a happy ending. A judge rejected all but one of the recantations, and he was executed in September 2011.

[One more Scalia tidbit, from 2011. As a devout originalist—we must rule based on what the Founders intended—he says the 14th Amendment does not provide equal protection to women, since it was only intended to protect black males. Boy, think of all that undeserved protection against sexual discrimination those broads have been able to finagle over the years…it must make his blood boil.]

I don’t think we should stop aspiring to be a country of laws, But let’s hold the humans calling the shots on so many parts of the judicial system—the cops, the prosecutors, the judges, and the pols who use high-profile cases in self-serving ways—to a higher standard. And let’s hope to god we have Democratic presidents for a while, so we don’t get any more Scalias.

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