After all, Davis does appear to have gotten what counts as a “fair” trial in our legal system. “Surely he can’t mean that it’s constitutional to execute an innocent man!” they exclaim. Indeed, I get a certain morbid amusement from the gasps of horror some of my fellow liberal legal colleagues emit when they read something like Scalia’s dissent in the Davis case. In short the law’s absurd formalism was part of its strength as ideology.”) (The great legal historian Douglas Hay explained the 18th-century English practice of sometimes acquitting obviously guilty men on absurd procedural technicalities, such as incorrectly calling the defendant a “farmer” instead of a “yeoman,” in similar terms: “When the ruling class acquitted men on such technicalities they helped embody a belief in the disembodied justice of the law in the minds of all who watched. What, after all, could be more nonpolitical and intellectually rigorous than executing an innocent man, simply because “the law” requires that result? In a perverse way, such bloody logic is a kind of advertisement for the supposed objectivity of the legal system, since we can assume that no sane decision maker would reach such a decision voluntarily. Judges of this type like these sorts of cases because they demonstrate that law is a supposedly nonpolitical and intellectually rigorous practice, rather than a touchy-feely exercise in doing what strikes the judge as the right thing. Scalia represents an extreme example of a certain kind of judge that positively revels in coming to conclusions that are morally revolting but “legally” sound. If a defendant got a fair trial in state court, there’s nothing the federal court can do, Scalia argues, to reverse that verdict-even if new evidence comes to light that convinces the court to a moral certainty that the defendant is innocent. Scalia takes the position that, from a legal perspective, it no longer makes the slightest difference whether Davis is innocent of the murder he was convicted of committing, and for which, in all likelihood, he will be executed. “This court,” Scalia pointed out, “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 court that he is ‘actually’ innocent.” (The order is unusual because the court almost never entertains direct appeals by defendants in Davis’ situation.) But Davis has a big problem: As an exasperated Scalia explained in his dissent from Monday’s extraordinarily unusual Supreme Court order directing a federal court to hold an evidentiary hearing on Davis’ claims, there’s nothing illegal about what has happened, and continues to happen, to Troy Davis. In retrospect, the case against Davis, which wasn’t strong to begin with, has almost completely fallen apart. ![]() Several now claim Coles was the killer and that they were coerced by police threats into testifying against Davis. No physical evidence tied Davis to the crime-the gun was never recovered-and in the years since Davis’ conviction, seven of the eight other eyewitnesses who claimed to have seen Davis shoot MacPhail have signed sworn affidavits recanting their claims.
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