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4.2.12
WC: 191694

Conclusion: How homicide cases have changed over the past half century

There are two clearly discernable trends in regard to homicide cases—and they point in totally opposite directions. Science is helping to solve homicide cases that previously remained unsolved (cold cases) or that produced erroneous results. Many innocent people who were wrongly convicted of murder have been exonerated by the new science, and some guilty murderers who had never even been suspected have been successfully prosecuted. There have even been some cases in which the DNA of the killer has been found and analyzed but could not be matched—at least not yet—with a specific person. In at least one case, an indictment has been issued against the unnamed person who may someday be matched with the “guilty” DNA. Such is the progress of science, and it will get even better (and scarier!) in the future.

At the same time that science is progressing, the law is regressing. It is becoming increasingly difficult to reopen “closed cases,” even homicide cases that carry long prison sentences or the possibility of execution.

Over the past several decades, an increasingly conservative Supreme Court, and a Congress that couldn’t care less about wrongly accused defendants, have shut the courtroom door to new evidence, including new scientific evidence. It may seem hard to believe but many judges and justices believe that it is not unconstitutional for an innocent person to be executed or to remain in prison if his conviction was “otherwise” constitutional. The idea that a process resulting in the conviction of an innocent defendant could be “otherwise” constitutional reminds me of the apocryphal question put to Abraham Lincoln’s widow after the assassination in Ford Theater: “Other than that, Mrs. Lincoln, did you enjoy the play?” If a defendant is factually innocent, there is no “other than that.”

Listen to Justice Scalia on this subject:

“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.”

Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife whose body was never found, 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), Justice Scalia along with several other justices, would tell him, in effect: “Look, your wife may be alive as a matter of science, 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.” The same would be true if DNA evidence proved another person guilty of a murder for which an innocent person was about to be executed. According to the Scalia view of the Constitution, there would be nothing unconstitutional about executing the innocent man—and then trying, convicting and executing the guilty man. Such is the regress of law, and it may get worse if more justices with

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