Thursday, November 23, 2017
Opinion

Blumner: A chance at innocence

RECOMMENDED READING


William Blackstone, the 18th century English jurist whose thinking influenced the nation's founders and American law, famously said it's better that 10 guilty people go free than for one innocent person to suffer.

U.S. Supreme Court Justice Antonin Scalia begs to differ.

In a blistering dissent Tuesday in McQuiggin vs. Perkins, Scalia stakes out a stunning position that the court's three other conservatives join: State prisoners with evidence of actual innocence should not necessarily get their day in court.

Welcome to "tough luck" justice. An innocent person moldering in prison for life is the collateral damage of a system willing to put expediency above the truth, and Scalia's fine with it.

The prisoner seeking federal review, Floyd Perkins, was convicted of murder and sentenced to life in prison without parole. Perkins later obtained affidavits from three witnesses that pointed to another man as the murderer, but didn't submit the findings to the federal courts for six years.

Scalia's dissent says that Perkins' habeas petition is barred by the Antiterrorism and Effective Death Penalty Act, a federal law passed in 1996 that imposes a one-year limit from the time that new evidence could have been discovered.

By contrast, the majority decision by Justice Ruth Bader Ginsburg, in which moderate Justice Anthony Kennedy joined the court's four liberals, would allow a narrow opportunity for people with strong claims of actual innocence to get into court regardless of the time that had elapsed.

This "fundamental miscarriage of justice" exception, Ginsburg explains, recognizes that society's interest in finalizing cases and conserving court resources has to give way in extraordinary cases when an individual's justice interests are overriding. Basically, if new evidence makes it "more likely than not" that no reasonable juror would have voted for a conviction, federal courts can take another look. (Perkins' affidavits, it turns out, don't seem to meet this test. There is strong evidence of his guilt.)

It must take some acrobatic mental jujitsu to justify having the federal courts stand back from evidence of actual innocence. Scalia's reasoning is that because Congress set the statute of limitations, the court has no power to carve out an exception. He accuses the majority of violating the separation of powers.

But it is the job of the federal courts to protect people accused of a crime from having their rights eroded by lawmakers responding to popular demands. Congress passed the 1996 act explicitly to make it harder for prisoners they viewed as annoying to repeatedly challenge their convictions. Now, though, in an age of DNA testing when we know that innocent people can spend decades in prison fighting a faulty conviction, the court has a duty to recognize that the law's strict limits cannot be a bar to valid claims of actual innocence. Justice demands it.

The most disturbing part of the ruling is that Scalia seems hostile to the very idea that the federal courts should be a backstop when states wrongly convict. In Scalia's final paragraphs, he says the high court made a "Faustian bargain" when 60 years ago it said the federal courts could review the substantive merits of state convictions. (Justice Samuel Alito refused to join this portion of the dissent.) The result was a flood of unworthy habeas petitions, Scalia complains. But he never says what he would do about the meritorious ones.

The ruling, while narrow, suggests that there are four justices who would reject Blackstone's "10 guilty persons" maxim. Conceivably, they would allow an innocent person to spend the rest of his life in prison because he missed a statutory deadline. For the poor, powerless and dispossessed — the people most likely to fall through the cracks of justice created by this ruling — it is proof that a portion of the court thinks their lives are expendable.

Comments

Another voice: Wall isnít a lifesaver, itís a boondoggle

The first stage of President Donald Trumpís controversial border wall project ended last week, while the prospects for any more construction ó and even what type of wall ó remain uncertain.A Border Patrol agent was killed and his partner seriously wo...
Published: 11/21/17
Updated: 11/22/17

Another voice: Time for Republicans to denounce this tax nonsense

Mick Mulvaney, the phony deficit hawk President Donald Trump tapped to oversee the nationís budget, all but admitted on Sunday that the GOP tax plan currently before the Senate is built on fiction. Senators from whom the public should expect more ó s...
Published: 11/20/17
Updated: 11/21/17
Editorial: Florida should restore online access to nursing home inspections

Editorial: Florida should restore online access to nursing home inspections

In a state with the nationís highest portion of residents over 65 years old and more than 80,000 nursing home beds, public records about those facilities should be as accessible as possible. Yet once again, Florida is turning back the clock to the da...
Published: 11/20/17

Another voice: A time of reckoning on sexual misconduct

Stories about powerful men engaging in sexual misconduct are becoming so common that, as with mass shootings, the country is in danger of growing inured to them. But unlike the tragic news about that latest deranged, murderous gunman, the massive out...
Published: 11/20/17

Another voice: Trump does the right thing for elephants; he shouldnít back down now

There is bad timing, and then there is this. Last week, an apparent military coup placed Zimbabwean President Robert Mugabe in custody, ushering in a new period of political uncertainty. A few days later, the Trump administration announced that Zimba...
Published: 11/19/17
Updated: 11/22/17
Editorial: Fighting the opioid crisis on many fronts

Editorial: Fighting the opioid crisis on many fronts

From birth to death, opioid addiction is ravaging the lives of thousands of Floridians. Drugmakers, doctors, state lawmakers and insurance companies all have a role to play in slowing the epidemic. Lately some more responsible answers, including mill...
Published: 11/17/17
Updated: 11/21/17

Editorial: Good for Tampa council member Frank Reddick to appeal for community help to solve Seminole Heights killings

As the sole black member of the Tampa City Council, Frank Reddick was moved Thursday to make a special appeal for help in solving four recent murders in the racially mixed neighborhood of Southeast Seminole Heights. "Iím pleading to my brothers. You ...
Published: 11/17/17
Editorial: Itís time to renew communityís commitment to Tampa Theatre

Editorial: Itís time to renew communityís commitment to Tampa Theatre

New attention to downtown Tampa as a place to live, work and play is transforming the area at a dizzying pace. Credit goes to recent projects, both public and private, such as the Tampa River Walk, new residential towers, a University of South Florid...
Published: 11/17/17
Editorial: A time for real thanksgiving

Editorial: A time for real thanksgiving

By now the guest list if not the table is all set, and the house will be warmed with the noise of loved ones and the smell of that dish with cream of mushroom soup. Tucked between the sugar rush of Halloween and the sparkle of Christmas, Thanksgiving...
Published: 11/16/17
Updated: 11/22/17
Editorial: Rays opening offer on stadium sounds too low

Editorial: Rays opening offer on stadium sounds too low

The Rays definitely like Ybor City, and Ybor City seems to like the Rays. So what could possibly come between this match made in baseball stadium heaven? Hundreds (and hundreds and hundreds) of millions of dollars. Rays owner Stu Sternberg told Times...
Published: 11/16/17
Updated: 11/17/17