Scalia willing to tolerate execution of the innocent

Case Asks When New Evidence Means a New Trial –
By ADAM LIPTAK Published: November 12, 2012 The New York Times
WASHINGTON — The Supreme Court has a complicated relationship with evidence of innocence that arrives late in the game.
held,” Justice Antonin Scalia wrote in 2009, chillingly but accurately, “that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”
Last month, the justices agreed to hear a case that demonstrates why the issue can be so difficult. It concerns Floyd Perkins, a Michigan man serving a life sentence for murder. The new evidence he has gathered is plausible but not overwhelming, and he waited a long time to present it. On the other hand, he may spend the rest of his life in prison for a crime he says he did not commit.
In 1993, Mr. Perkins left a house party in Flint, Mich., with two other men. One of them, Rodney Henderson, was later found dead on a wooded trail, stabbed in the head.
The third man, Damarr Jones, testified that Mr. Perkins had committed the murder. Mr. Perkins said he had parted from the other two men before the killing and later saw his accuser under a streetlight, bloody and agitated. The jury believed Mr. Jones.
Over the years, from behind bars, Mr. Perkins collected more evidence. In 1997, his sister Ronda Hudson, gave him a sworn statement saying she had heard secondhand that Mr. Jones had bragged about the killing and described taking his bloody clothes to a dry cleaner. The statement was hearsay once removed, and the fact that Ms. Hudson was a relative of the prisoner also undermined its force.
Two years later, Mr. Perkins did better. In a second sworn statement, Demond Louis, an acquaintance of Mr. Jones, said Mr. Jones had confessed the killing to him shortly after committing it. Mr. Louis added that he had gone with Mr. Jones the next day to a dry cleaner, where Mr. Jones dropped off a pair of bloody orange pants.
Then, in 2002, an employee of the dry cleaning store, Linda Fleming, came forward to say that a man who looked like Mr. Jones had indeed dropped off bloody orange pants for cleaning.
Six years passed. In 2008, Mr. Perkins asked a federal court to throw out his conviction based on those three statements.
Magistrate Judge Timothy P. Greeley of the Federal District Court in Marquette, Mich., recommended that the request be denied because it was filed too late. Judge Greeley did not seem to give the matter much thought or care, as he mistakenly asserted in his opinion that Mr. Perkins “was convicted pursuant to a guilty plea” rather than after a trial at which he had maintained his innocence and testified in his own defense.
Mr. Perkins appealed, and Judge Robert Holmes Bell of the Federal District Court in Grand Rapids accepted the magistrate judge’s recommendation. Judge Bell did also briefly consider the new evidence. He was unimpressed, saying it was a variation on a theme presented at trial — that Mr. Perkins “was being framed by the prosecution’s lead witness, who himself was responsible for the murder.”
The United States Court of Appeals for the Sixth Circuit, in Cincinnati, reversed that ruling. It ordered Judge Bell to consider whether the new evidence was credible enough to warrant full consideration despite the fact that Mr. Perkins had filed his petition after a deadline that would ordinarily have elapsed in 2003, a year after the last piece of evidence came to light.
Officials in Michigan appealed to the Supreme Court, saying that deadlines are deadlines. Alabama and nine other states filed a supporting brief cautioning that “unscrupulous prisoners falsely claim that they are innocent all the time.” The justices will probably hear arguments in the case, McQuiggin v. Perkins, No. 12-126, in February.
The lower courts in Mr. Perkins’s case, along with briefs in the Supreme Court, seem to take for granted that he should lose if there is a legal requirement that claims of innocence be pursued diligently.
But there is another way to look at it. Documents in the court file suggest that Mr. Perkins actually tried pretty hard given his circumstances. Just before one deadline, he told Judge Bell in a handwritten filing, “petitioner’s legal documents and much of his personal property was destroyed” by prison personnel “following petitioner’s involvement in inciting a riot.”
“After which,” Mr. Perkins continued, “petitioner was denied access to the law library and law materials while he was held in solitary confinement” for almost five years. He said he continued to seek legal help and to work on his case “as much as one could have done being confined to solitary.”
The sworn statements Mr. Perkins gathered do not categorically establish that he is innocent. Except for DNA, most evidence of guilt or innocence tends to be suggestive, incremental and circumstantial. Had Mr. Perkins’ new evidence been presented at trial, it might have changed the result. Or perhaps not. The question now, two decades later, is whether there is reason enough for a fresh look at his case.
Justice Scalia will almost certainly say no.
“Like other human institutions, courts and juries are not perfect,” he explained in 2006. “One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation.”

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