The Supreme Court recently voided a 2002 Louisiana murder conviction on grounds that the prosecution had concealed evidence helpful to defendant Michael Wearry. Two justices, Samuel Alito and Clarence Thomas, dissented. “There is no question in my mind that the prosecution should have disclosed this information,” said their dissent, which Alito wrote, “but whether the information was sufficient to warrant reversing petitioner’s conviction is another matter.”
The justices’ contrariness puzzled my sister Dixie, who lives in New Orleans, and she commented on Facebook. “If there is any doubt about a conviction, surely every justice would not want an innocent man to be put to death,” Dixie proposed. “And yet, these two never seem to mind all that much. They seem to feel better ten innocent men are executed than one guilty man go free.”
I’ve read the dissent to see if my sister was right. My conclusion: she exaggerates the extent to which Supreme Court justices think about guilt and innocence one way or the other. Recall that the late Antonin Scalia once observed that if the i’s have been dotted and the t’s crossed, it’s not necessarily unconstitutional to execute an innocent man. “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,” Scalia wrote in 2009, dissenting from the court’s decision to grant a new hearing to a condemned Georgia man who eventually was executed anyway.
Alito and Thomas didn’t say they wanted Michael Wearry put to death. They didn’t even say they believed he was guilty. “The Court ably makes the case for reversal,” Alito allowed. “But there is a reasonable contrary argument.” The matter “is not open and shut.”
Wearry had been on death row in Louisiana since he was convicted of a 1998 murder, and the Supreme Court majority was so impressed by his petition that the court didn’t even bother to hear further arguments. Based on the written record, it overturned the 2002 guilty verdict. “We conclude that the prosecution’s failure to disclose material evidence violated Wearry’s due process rights,” said the unsigned opinion.
Alito didn’t disagree. “It is true—and troubling—” wrote the justice, that Wearry’s prosecutor said in her opening statement that a key witness “had not sought favorable treatment,” as the witness had, in fact, sought it. And “there is no question in my mind,” he added, that other information also should have been shared with the defense.
But what of it? The jury might have convicted Wearry regardless, he reasoned, and this possibility deserved to be fully considered. His concerns were procedural. Alito thought justice might best be served if Wearry’s petition were sent down to a federal district court for a habeas proceeding, and then worked its way back to the Supreme Court by way of a federal court of appeals. At the very least, the Supreme Court shouldn’t act without giving the state of Louisiana a chance to file briefs and present arguments.
“Of course, this process means extra work for the Court,” Alito granted. “But it leads to better results, and it gives the losing side the satisfaction of knowing that at least its arguments have been fully heard.”
What we do not have here are two heartless jurists who don’t care if an innocent man is put to death. What we do have are two finicky justices reprimanding their colleagues for slacking off and for failing to show the state of Louisiana proper respect.
“There is room on our docket to give this case the careful consideration it deserves,” Alito asserted.
If careful consideration keeps Wearry behind bars for years more, it also upholds Alito’s idea of the dignity of the legal process. So why be impetuous.