... is not necessarily substantive justice.
Lisa Falkenberg reports on an apparent shift in Texas' attitudes about whether innocent people, who received trials with no procedural irregularities, should be executed if they were found guilty of capital murder.
A few years back, it was no big deal:
The State of Texas argued before the nation’s highest court that it was OK to execute an innocent person, as long as he got a fair trial.
The most chilling exchange came when a justice asked the assistant attorney general arguing for Texas, Margaret Griffey, whether the state would maintain that same position if video evidence conclusively proved the person didn’t commit the crime. The justice wanted to know: Is there a violation of that person’s constitutional rights if he were executed anyway because no court would hear the video evidence?
“No, Your Honor, there is not,” Griffey replied.
The justices continued to probe, as if needing clarification of what they were hearing.
If everyone agrees that the evidence establishes innocence, another justice inquired, but the jury just made a mistake, “is there a constitutional right under the Eighth Amendment (which bars cruel and unusual punishment) not to be executed when you’re innocent? That’s the issue. And you’re saying no, there’s no such right.”
“That is what I’m saying, Your Honor,” said Griffey.
The argument was in Herrera v. Collins. She reports that the Attorney General's office has had a change of heart on this. Nice to know.
