Antonin Scalia

More evidence emerges that Texas almost certainly executed an innocent man. Todd Willingham-Yet another reason why our error-prone justice system should never have to the power over life and death.

february 27, 2014 (nytimes)

In the 10 years since Texas executed Cameron Todd Willingham after convicting him on charges of setting his house on fire and murdering his three young daughters, family members and death penalty opponents have argued that he was innocent. Now newly discovered evidence suggests that the prosecutor in the case may have concealed a deal with a jailhouse informant whose testimony was a key part of the execution decision.

The battle to clear Mr. Willingham’s name has symbolic value because it may offer evidence that an innocent man was executed, something opponents of the death penalty believe happens more than occasionally. By contrast, Justice Antonin Scalia wrote seven years ago that he was unaware of “a single case — not one — in which it is clear that a person was executed for a crime he did not commit.”

Mr. Willingham was convicted on charges of setting the 1991 fire in Corsicana, Tex., that killed his three children, and was sentenced to death the next year. The conviction rested on two pillars of evidence: analysis by arson investigators, and the testimony of a jailhouse informant, Johnny Webb, who said that Mr. Willingham had confessed the crime to him.

Mr. Willingham was convicted and executed in the killings. Associated Press

The arson investigation has since been discredited; serious questions were raised about the quality of the scientific analysis and testimony, which did not measure up to the standard of science even at the time. But the prosecutor who led the case shortly before Mr. Willingham’s execution argued that even though the arson analysis had been questioned, the testimony of Mr. Webb should be enough to deny any attempt for clemency.

In recent weeks, as part of an effort to obtain a posthumous exoneration from the Texas Board of Pardons and Paroles and Gov. Rick Perry, lawyers working on Mr. Willingham’s behalf say they have found evidence that Mr. Webb gave his testimony in return for a reduced prison sentence. Evidence of an undisclosed deal could have proved exculpatory during Mr. Willingham’s trial or figured in subsequent appeals, but Mr. Webb and the prosecutor at trial, John Jackson — who would later become a judge — explicitly denied that any deal existed during Mr. Webb’s testimony.

In September, lawyers from the Innocence Project in New York filed an official request with the board to exonerate Mr. Willingham, citing the flawed fire science and Judge Jackson’s subsequent actions in the Webb case: efforts to cut Mr. Webb’s prison time and to downgrade the charges after the Willingham trial. The Innocence Project also contends that prosecutors suppressed an effort by Mr. Webb to recant his testimony.

But recantations in criminal cases are relatively common, said Walter M. Reaves Jr., a criminal defense lawyer who has worked on Mr. Willingham’s case, so the biggest open question has been whether Judge Jackson and Mr. Webb had made a deal. Judge Jackson, who has retired from the bench, continued to insist there was no deal, even in an interview last year.

What has changed is that investigators for the Innocence Project have discovered a curt handwritten note in Mr. Webb’s file in the district attorney’s office in Corsicana. The current district attorney, R. Lowell Thompson, made the files available to the Innocence Project lawyers, and in late November one of the lawyers, Bryce Benjet, received a box of photocopies.

As he worked through the stack of papers, he saw a note scrawled on the inside of the district attorney’s file folder stating that Mr. Webb’s charges were to be listed as robbery in the second degree, not the heavier first-degree robbery charge he had originally been convicted on, “based on coop in Willingham.”

Mr. Benjet recalled a “rush of excitement,” he said, and thought, “This is what we’ve been looking for.”

The Innocence Project submitted the note, which is not dated or signed, in a new filing to the board asking that it be included as part of its September request for a pardon.

Barry Scheck, co-founder of the Innocence Project, called the note a “smoking pistol” in the case.

“We’re reaching out to the principals to see if there is an innocent explanation for this,” he said. “I don’t see one.”

Judge Jackson did not respond to several requests for comment.

Mr. Thompson, the district attorney, said that while he willingly complied with the request for the Webb files, he had no opinion as to what happened during the Willingham trial in 1992. “I wasn’t even a college graduate yet,” he said.

As for Mr. Webb, he said, the robbery that put him in a cell with Mr. Willingham was not his only brush with the law. “I’ve also prosecuted him,” he said. “The D.A. before me prosecuted him, and the D.A. before him prosecuted him.”

Mr. Scheck said that the Willingham case suggested a fundamental weakness in the justice system: If Mr. Webb’s testimony “was really based on a deal and misrepresentation, then the system cannot be regulated,” he said. Under those circumstances, “you cannot prevent the execution of an innocent person.”

Even if the board ultimately agrees with Mr. Willingham’s advocates, the final decision will rest with Governor Perry (who has called Mr. Willingham “a monster” who killed his children) or with his successor in 2015.

Mr. Willingham’s stepmother, Eugenia Willingham, said: “I’m real thrilled that all this has come to light. We’ll see what happens. I can’t help but be hopeful.”

His cousin Patricia Cox said that if an exoneration does occur, the family has no plans to press for damages. “We’re not asking compensation,” she said. “We’re asking justice.”

SUPREME COURT NOTEBOOK: Scalia says death penalty, abortion, gay rights are easy calls

October 5, 2012 http://www.newser.com/

Scalia calls himself a “textualist” and, as he related to a few hundred people who came to buy his new book and hear him speak in Washington the other day, that means he applies the words in the Constitution as they were understood by the people who wrote and adopted them.

So Scalia parts company with former colleagues who have come to believe capital punishment is unconstitutional. The framers of the Constitution didn’t think so and neither does he.

“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state,” Scalia said at the American Enterprise Institute.

He contrasted his style of interpretation with that of a colleague who tries to be true to the values of the Constitution as he applies them to a changing world. This imaginary justice goes home for dinner and tells his wife what a wonderful day he had, Scalia said.

This imaginary justice, Scalia continued, announces that it turns out “`the Constitution means exactly what I think it ought to mean.’ No kidding.”

As he has said many times before, the justice said the people should turn to their elected lawmakers, not judges, to advocate for abortion rights or an end to the death penalty. Or they should try to change the Constitution, although Scalia said the Constitution makes changing it too hard by requiring 38 states to ratify an amendment for it to take effect.

“It is very difficult to adopt a constitutional amendment,” Scalia said. He once calculated that less than 2 percent of the U.S. population, residing in the 13 least populous states, could stop an amendment, he said.

In a lengthy question-and-answer session, Scalia once again emphatically denied there’s a rift among the court’s conservative justices following Chief Justice John Roberts‘ vote to uphold President Barack Obama’s health care law. Scalia dissented from Roberts’ opinion.

“Look it, do not believe anything you read about the internal workings of the Supreme Court,” he said. “It is either a lie because the press knows we won’t respond _ they can say whatever they like and we won’t respond _ or else it’s based on information from someone who has violated his oath of confidentiality, that is to say, a non-reliable source. So one way or another it is not worthy of belief.”

“We can disagree with one another on the law without taking it personally,” he said.

___

The issue of gay rights, or more specifically same-sex marriage, is expected to be a big one in the term that began this week. While the justices initially were scheduled to discuss the topic at their private conference in late September, it now appears likely that they will not make a decision about whether to take up a gay marriage case until after the presidential election, which would mean arguments would not take place until the spring.

The justices have a variety of pending appeals they could choose to hear that deal in one way or another with gay marriage.

One set of cases looks at whether same-sex couples who are legally married can be deprived of a range of federal benefits that are available to heterosexual couples. Another case deals with California’s constitutional amendment banning gay marriage and federal court rulings striking down the amendment. An Arizona case deals with a state law that revoked domestic partner benefits, making them available only to married couples. Arizona’s constitution bans gay marriage.

___

The audio of Roberts reading a summary of the health care decision is available online through the Oyez.org website at http://www.oyez.org/cases/2010-2019/2011/2011_11_400

The U.S. Supreme Court: How it works

march 26, 2012, source : http://edition.cnn.com

Washington (CNN) — Few Americans have any real idea how the Supreme Court operates, since cameras are barred, and the case arguments and opinions are often dry and confusing for nonlawyers.

That’s too bad because the high court’s impact on Americans is incalculable. When disputes arise, the nine justices serve as the final word for a nation built on the rule of law. They interpret the Constitution and all that it brings with it: how we conduct ourselves in society, boundaries for individuals and the government, questions literally of life and death.

As the late justice William Brennan once wrote, “The law is not an end in itself, nor does it provide ends. It is preeminently a means to serve what we think is right.” And whether right or wrong, when it came to deciding who won the 2000 presidential election, it was the court’s conclusions that ultimately ended the issue, but not the controversy.

Preview: ‘The implications … are impossible to overstate’

A similarly epic constitutional showdown is now before the court over challenges to the health care reform law promoted by congressional Democrats and President Barack Obama — and opposed by a coalition of 26 states.

Article Three of the Constitution says, “The Judicial power of the United States, shall be vested in one supreme Court … the judges, both of the supreme and inferior courts, shall hold their offices during good behavior.”

Read a transcript of Monday’s court arguments on health care

Here’s a look at the history of the court, how it works and how you, the citizen, can interact with it:

Court goes back the late 1700s

The Supreme Court first met in 1790, as the ultimate part of the judicial branch of government. There are nine justices, led by the Chief Justice of the United States (that’s the official title). All justices — and all federal judges — are first nominated by the president and must be confirmed by the Senate. They serve for as long as they choose. The court has occupied its current building in Washington only since 1935. Previously, it borrowed space in Senate chambers in the Capitol Building.Explaining the health c

The Constitution’s framers envisioned the judiciary as the “weakest,” “least dangerous” branch of government. And while the court has often been accused over the years of being too timid in asserting its power, there is little doubt when the justices choose to flex their judicial muscle, the results can be far-reaching. Just look at how cases such as Brown v. Board of Education (1954 — integrating public schools), Roe v. Wade (1973 — legalizing abortion) and even Bush v. Gore (2000) have affected the lives of Americans.

Blockbuster decisions by the high court over the years

Traditionally, each term begins the first Monday in October, and final opinions are issued usually by late June. Justices divide their time between “sittings,” where they hear cases and issue decisions, and “recesses,” where they meet in private to write their decisions and consider other business before the court.

Court arguments are open to the public in the main courtroom, and visitors have the option of watching all the arguments or only a small portion. Tradition is very important. You will notice the justices wearing black robes, and quill pins still adorn the desks, as they have for more than two centuries.

Where to sit? Seniority counts

The justices are seated by seniority, with the chief justice in the middle. The two junior justices (currently Sonia Sotomayor and Elena Kagan) occupy the opposite ends of the bench. Before public arguments and private conferences, where decisions are discussed, the nine members all shake hands as a show of harmony of purpose. In the past, all lawyers appearing before the court wore formal “morning clothes,” but today only federal government lawyers carry on the tradition. The solicitor general is the federal government’s principal lawyer before the federal bench.

As the gavel sounds and justices are seated, the marshal shouts the traditional welcome, which reads: “Oyez! Oyez! Oyez! All persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the court is now sitting. God save the United States and this Honorable Court.”

Frequently asked questions about the court and the case

Arguments usually begin at 10 a.m. and since most cases involve appellate review of decisions by other courts, there are no juries or witnesses, just lawyers from both sides addressing the bench. The cases usually last about an hour, and lawyers from both sides very often have their prepared oral briefs interrupted by pointed questions from a justice.

This give-and-take, question-and-answer repartee can be entertaining, and it requires lawyers to think concisely and logically on their feet. And by the tone of their questioning, it often gives insight into a justice’s thinking, a barometer of his/her decision-making.

You can listen if you like

No cameras are allowed, but the public sessions are audio recorded, and are available for listening, usually several days later. The health care arguments — for this week — will be available only shortly after each of the four separate arguments end, at the court’s website.

After the arguments, conferences are scheduled, where justices discuss and vote on the cases. In these closed-door sessions, the nine members are alone. No clerks or staff are allowed. No transcripts of their remarks are kept, and it is the role of the junior justice (Elena Kagan for the past two years) to take notes and answer any inquiries from the outside.

Justices spend much of their time reviewing the cases and writing opinions. And they must decide which cases they will actually hear in open court. When asked just before her 2006 retirement what the jurists do most of the time, Sandra Day O’Connor said bluntly, “We read. We read on average 1,500 pages a day. We read. Sometimes we write.” Added Justice Antonin Scalia: “We try to squeeze in a little time for thinking.”

Read the full article : click here