What conservatives think

[Volokh, Eugene]

        I much appreciate the recent post which quoted Chief Justice Warren
as saying that claims of actual innocence, standing alone, do not justify
federal habeas relief.  This only further illustrates that one can believe
that there's no federal constitutional right to a habeas hearing on actual
innocence, even though one would agree that executing (or imprisoning)
innocent people is a bad thing.  And I suspect that there are quite a few
average Americans who would agree with this, and quite a few who would
disagree.  (Needless to say, if one characterizes the matter tendentiously
enough in the survey question, one could get survey results that swing
either way on a wide range of issues.)

        As to the lawyer sleeping through the trial, I'm quite hesitant to
comment because I haven't myself read the case that's at issue, or seen an
objective summary of the facts elsewhere.  I would agree that, under
Strickland v. Washington, this might well properly lead to federal relief,
but again, I'm not knowledgeable enough about the facts to speak to that.

        Finally, surely both liberals and conservatives believe that
sometimes the process *is* important enough to allow the result to stand
even if some judge disagrees that the process reached the right merits
result in this particular case.  That's why we have res judicata and
collateral estoppel, rather than allowing endless relitigation.  That's why
we have statutes of limitations.  That's why even liberals, I'm sure, would
agree that the standards for actual innocence claims after trial should be
different from the standards at trial.  There are lots of good arguments for
hand recounts; there are lots of good arguments for reading the Constitution
as mandating relief if actual innocence can be proven, even long after
trial; but the arguments are hardly open-and-shut, and it's hardly helpful
to produce caricatures of the views of one side or the other.

        Eugene

> -----Original Message-----
> From: Paul Finkelman [SMTP:Paul-Finkelman at UTULSA.EDU]
> Sent: Friday, December 15, 2000 8:39 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: What conservatives think
>
> I thnk Eugene goes miss some of my point.
>
> The  tone and attitude of the Court matters.  Justice Scalia says the
> supreme court is not interested in guilt or innocence.  I seriously doubt
> most Americans, whatever their political views, would buy that for a
> minute.  If the Court has any credibility it is because it is seen as a
> court that provides justice where the system has failed people.  Most
> people don't know how few cases the Court takes, but if the system worked
> correctly, the Court would give guidelines and the lower federal courts,
> and the state courts, would follow them; but in the end the S.C. is the
> last court.  So, I suspect that average American would be shocked to hear
> that a majority of the Justices say, "we don't care if you are guilty, we
> will let you die anyway if you had  a formal trial."  The fact is, despite
> what Eugene believes about Scalia, he is one record as saying that in his
> official capacity, where he has the power to vote to give those who claim
> to be actually innocent a chance to be heardl he does not believe they
> should be heard, are entitled to be heard, or that it is the Court's
> business if they are guilty or not.
>
> I think there may be parallels here to the Florida recount.  The
> conservatives seem to be saying, we don't care what the process was; once
> it is finished that is the end.  So, Judge Edith Jones in Texas is
> uninterested in the plight of the death row convict whose lawyer slept
> through the trial.  You are, in her mind, entitled to a trial but not a
> lawyer who is awake; similarly, we might argue that in Florida you are
> entitled to put your ballot in the machine but not to actually have the
> machine read the ballot.
>
> My guess is that most Americans do not think you have a fair trial if your
> appointed lawyer sleeps through the case.  Eugene, do you think that is a
> fair trial?
>
> Paul
>
> --
> Paul Finkelman
> Chapman Distinguished Professor
> University of Tulsa College of Law
> 3120 East Fourth Place
> Tulsa, OK  74104
>
> 918-631-3706
> Fax 918-631-2194
>
> E-mail:  paul-finkelman at utulsa.edu
>
>
>
> "Volokh, Eugene" wrote:
>
>
>
>               I agree entirely:  The vast majority of Americans do not
> believe in executing innocent people.  I certainly oppose this.  What's
> more, I will bet you a large some of money that Justice Scalia also
> opposes the execution of innocent people.
>
>               On the other hand, if one were to take a poll as to whether
> Americans think that people have a constitutional right to get a federal
> court hearing whenever they raise a claim of actual innocence, even many
> years after trial, I'm not at all sure what the result would be.  (I'm
> actually quite torn on the merits question, but if the question has to do
> with what the public as a whole would think, I genuinely can't guess the
> answer to that.)  Does anyone know whether such polls have been taken, and
> what they have revealed?  Because it seems to me that Justice Scalia and
> other conservatives are talking about *that* (in my view quite difficult)
> question, and not about the quite different question of whether innocent
> people ought to be executed.  Or has Prof. Finkelman identified some
> important point here that I've entirely missed?
>
>               Eugene
>
>       Paul Finkelman writes:
>
>       On the other hand, I suspect that the vast majority of Americans,
>       whatever their faith or political views, do not believe in executing
>
>       innocent people, oppose executing people who did not get a fair
> trial
>       (such as the man on death row in Texas whose lawyer slept through
> his
>       trial, but whose appeal was rejected by the Court of Appeals, and
> who
>       has so far had no luck with getting any sort of due process out of
>       either the Texas Courts or, of all people, the compassionate
>       conservative, Gov. Bush, who allegedly laughed when told of the
> case).
>
>       Now, perhaps I am wrong in thinking that even conservatives like
>       yourself are against executing innocent people or executing people
>       without knowing if they are guilty or not because they did not get
> even
>       a minimally fair trial.  So, please forgive me if I am putting words
> in
>       your mouth on this one.  I know Justice Scalia is on record as
> saying
>       that the U.S. Supreme Court is unconcerned with guilt or innocence,
> but
>       I keep hoping that he does not speak for all conservatives.
>
>
>
>
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