THE TROY DAVIS CASE: ALAN DERSHOWITZ ON WHAT HE CALLS "SCALIA'S CATHOLIC BETRAYAL." THE DAILY BEAST;

"BUT WHATEVER THE VIEW OF THE CHURCH IS ON EXECUTING THE GUILTY, SURELY IT IS AMONG THE WORST SINS, UNDER CATHOLIC TEACHING, TO KILL AN INNOCENT HUMAN BEING INTENTIONALLY. YET THAT IS PRECISELY WHAT SCALIA WOULD AUTHORIZE UNDER HIS SKEWED VIEW OF THE UNITED STATES CONSTITUTION. HOW COULD HE POSSIBLY CONSIDER THAT NOT IMMORAL UNDER CATHOLIC TEACHINGS? IF IT IS IMMORAL TO KILL AN INNOCENT FETUS, HOW COULD IT NOT BE IMMORAL TO EXECUTE AN INNOCENT PERSON?"

ALAN DERSHOWITZ; THE DAILY BEAST;

--------------------------------------------------------------------------------BackgrouBackground: (Wikipedia); The Troy Davis case concerns the case of Troy Anthony Davis, a former sports coach from the U.S. state of Georgia, who was convicted and sentenced to death in 1991 for the August 19, 1989 murder of off-duty Savannah, Georgia police officer Mark MacPhail. Throughout the trial and subsequent appeals, Davis maintained his innocence, claiming he was wrongfully convicted of the crime as a result of false identification. After the trial and first set of appeals, seven of the nine prosecution eyewitnesses who had linked Davis to the killing recanted or contradicted their original trial testimony, claiming police coercion and questionable interrogation tactics. The witness who first implicated Davis and has remained consistent, Sylvester "Redd" Coles, was initially a suspect in the crime. Coles was seen acting suspiciously the night of MacPhail's murder and has been heard boasting that he killed an off-duty police officer. There is only one witness who did not recant his testimony and is not himself a suspect in the murder, but he made an in-court identification of Davis two years after the crime.Davis opponents say Coles came back to the scene of the shooting with a female after police arrived. Davis changed clothes (even asking Coles for a shirt later) and fled to Atlanta with his sister. Davis has repeatedly asked the courts to examine the new exculpatory evidence, but so far has not been successful in persuading a majority of judges to grant him a new trial or conduct a hearing in which the recanting eyewitnesses could be cross-examined to determine the credibility of Davis’ innocence claims. In October 2008, Davis filed a second Habeas petition in the 11th Circuit Court of Appeals on the grounds that it was the first time Davis was presenting a free-standing innocence claim and that no court has yet held an evidentiary hearing on the exculpatory evidence of recanted testimony. On 16 April 2009 the three-judge panel denied Davis' petition on procedural grounds by a 2-1 majority. Amnesty International has strongly condemned the refusal of U.S. courts to examine the innocence evidence, and has organized rallies and letter-writing campaigns to persuade the Georgia and Federal courts to grant Davis a new trial or an evidentiary hearing. Many prominent politicians and leaders, including President Jimmy Carter, Pope Benedict XVI, Nobel laureate Archbishop Desmond Tutu, Presidential candidate Bob Barr, and former FBI Director and judge William S. Sessions have called upon the courts to grant Davis a new trial or evidentiary hearing. On 17 August 2009, the U.S. Supreme Court, over the dissenting votes of two justices, ordered a federal district court in Georgia to consider and rule on whether new evidence "that could not have been obtained at the time of trial clearly establishes [Davis'] innocence."

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Alan Dershowitz articulates his views on what he labels "Scalia's Catholic Betrayal" in a commentary which appeared in "The Daily Beast."

Wikopedia tells us that: "The Daily Beast is a news reporting and opinion website published by Tina Brown, former editor of Vanity Fair and The New Yorker. About one-third of its content is original, while the rest is aggregated links to articles written by other news outlets...The name of the site is derived from that of the fictional newspaper in Evelyn Waugh's novel Scoop."

(Professor Alan M. Dershowitz is described by the Daily Beast as:"A Brooklyn native who has been called “the nation’s most peripatetic civil liberties lawyer” and one of its “most distinguished defenders of individual rights.” He is the Felix Frankfurter Professor of Law at Harvard Law School. Professor Dershowitz is the author of 27 fiction and nonfiction works.")

A sub-heading to the commentary tells us: "The Supreme Court justice’s shocking remarks about capital punishment are not just a distortion of the Constitution, says Alan Dershowitz, they’re also an outrage against his church."

"I never thought I would live to see the day when a justice of the Supreme Court would publish the following words: “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable," the commentary, begins, under the heading, "Scalia's Catholic Betrayal."

"Yet these words appeared in a dissenting opinion issued by Justices Antonin Scalia and Clarence Thomas on Monday," it continues.

"Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”

• Paul Campos: Scalia's Death Row Lunacy It would be shocking enough for any justice of the Supreme Court to issue such a truly outrageous opinion, but it is particularly indefensible for Justices Scalia and Thomas, both of whom claim to be practicing Catholics, bound by the teaching of their church, to do moral justice. Justice Scalia has famously written, in the May 2002 issue of the conservative journal First Things, that if the Constitution compelled him to do something that was absolutely prohibited by mandatory Catholic rules, he would have no choice but to resign from the Supreme Court.

Unlike President Kennedy, who pledged to place his obligation to the Constitution above his commitment to his church, Scalia has insisted that in his view, “The choice for the judge who believes the death penalty to be immoral [according to the teachings of the Catholic Church] is resignation.” He put his point in “blunt terms”: “I could not take part in that process [of authorizing an execution] if I believed what was being done to be immoral.” He continued: “It is a matter of great consequence to me, therefore, whether the death penalty is morally acceptable. As a Roman Catholic—and being unable to jump out of my skin—I cannot discuss that issue without reference to Christian tradition and the church’s Magisterium.”

Surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution.

After reviewing the teachings of the church, he concluded that there is no conflict between his judicial role in affirming death-penalty sentences and the strict teachings of the Catholic Church, which counsel against the use of capital punishment but permit this extreme sanction in extraordinary cases, especially when there is no reasonable alternative. This is the way he put it:

“So I have given this new position thoughtful and careful consideration—and I disagree. That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign. And I am happy because I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty (most of them would not be elected); if American Catholics running for governor had to promise commutation of all death sentences (most of them would never reach the governor’s mansion); if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty; or if American Catholics were subject to recusal when called for jury duty in capital cases.”

But whatever the view of the church is on executing the guilty, surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution. How could he possibly consider that not immoral under Catholic teachings? If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?

Ordinarily I would not include a justice's religious views in a criticism of a judicial opinion, but with regard to capital punishment, it is Justice Scalia who has introduced the religious dimension. I am simply trying to hold him to his own published standards.

I am not a Catholic, yet I teach principles of Catholic morality in my Harvard Law School freshman seminar, “Where Does Your Morality Come From?” I hereby challenge Justice Scalia to a debate on whether Catholic doctrine permits the execution of a factually innocent person who has been tried, without constitutional flaw, but whose innocence is clearly established by new and indisputable evidence. Justice Scalia is always willing to debate issues involving religious teachings. He has done so, for example, with the great Rabbi Adin Steinsaltz, and with others as well. He also has debated me at the Harvard Law School. Although I am neither a rabbi nor a priest, I am confident that I am right and he is wrong under Catholic Doctrine. Perhaps it takes chutzpah to challenge a practicing Catholic on the teachings of his own faith, but that is a quality we share.

I invite him to participate in the debate at Harvard Law School, at Georgetown Law School, or anywhere else of his choosing. The stakes are high, because if he loses—if it is clear that his constitutional views permitting the execution of factually innocent defendants are inconsistent with the teachings of the Catholic Church—then, pursuant to his own published writings, he would have no choice but to conform his constitutional views to the teachings of the Catholic Church or to resign from the Supreme Court."

The commentary can be found at:

http://www.thedailybeast.com/blogs-and-stories/2009-08-18/scalias-catholic-betrayal/full/

Harold Levy...hlevy15@gmail.com;