It’s been a sad few weeks for the American system of justice. Most recently, the constantly deified (at least on TV) role of police and parole officers has suffered an irreparable blow, when it was discovered that a convicted sex offender had been able to hide his kidnapped victim for 18 years in his Antioch, CA back yard, all while fathering two children upon her. Incredibly, the whole crew (one cannot bear to call them a family) have been living in this northern California suburb beneath the eyes of neighbors, parole officers, and visiting police, without once having been noticed by authorities. Phillip Garrido, who kidnapped 11-year-old Jaycee Dugard 18 years ago, openly ranted and raved, most recently at UC Berkeley’s campus, and never once, until days ago, aroused the suspicions of the local constabularies. Indeed, in 2006 some budding Inspector Colombo actually answered a neighbor’s complaint (she had seen the girls back there, and called 911) and visited the Garrido home, but never inspected the series of tents and fenced-in shanties in the back yard, where the women were hidden. Not aware the man was a registered sex offender, the officer only allowed as how Garrido might have to face a building code violation for the backyard mess; never calling the building inspector, of course.
Most shocking of all, Garrido’s parole officers actually met with the parolee several times a month and visited his home regularly for spot checks, but never once thought to inspect the back yard where his victims were secreted. Talk about keystone cops. And it gets worse (making one wonder: who are the fools that become parole officers?) At some point, Garrido took to visiting the UC Berkeley campus, where he would rant about God to the undergraduates. He then met with a UC Berkeley police officer to apply for a permit to hold a campus event he called “God’s Desire.” The police officer, Lisa Campbell, (the one bright spot in this otherwise sordid tale) noticed that the two girls Garrido had with him, whom he called his daughters, appeared “robotic.” After another meeting, Campbell had Garrido checked on the computer, found that he was a registered sex offender, and called his parole officer to alert him to the children.
Now here is where one would think parole officers would jump. But astonishingly, the officer to whom Campbell spoke tried to make excuses: Garrido had no children, he said, perhaps the girls were his grandchildren! Still, the call had to be dealt with, so the parole office called Garrido in—and he showed up with his wife, his abductee, now 29, and the two children, aged 11 and 15. With the evidence now tossed into their laps, even Keystone Cops couldn’t ignore it any longer, and the case broke, the backyard shanties and playgrounds were uncovered, and Garrido and his wife were taken into custody. The whole panoply of police power is now aroused and humming, promising justice. But what can justice possibly mean to Jaycee Dugard, a prisoner and rape victim since she was 11, or her two daughters, one or both of whom have probably been violated as well? And what are we to make of such stunning incompetence on the part of police and parole officers? What do these people do when they’re not napping?
The case of Troy Davis perhaps gives us a clue. What police officers do is bring the hammer of justice down, without mercy, upon those who fit their profile of criminal. They find “witnesses” to convict those against whom there is no evidence. Davis, that is, was fingered—by Sylvester “Redd” Coles, for one; a man most now say actually committed the crime—for killing a Georgia police officer. Eight other witnesses also said Davis, a black man, had done the deed. Despite the lack of evidence tying him to the murder, he was convicted, and sentenced to death. But, and it is an enormous BUT, seven of those eight witnesses have, since the trial, recanted their testimony. For example, Jeffrey Sapp, one of the recanting witnesses, said in an affidavit:
“The police…put a lot of pressure on me to say ‘Troy said this’ or ‘Troy said that.’ They wanted me to tell them that Troy confessed to me about killing that officer…they made it clear that the only way they would leave me alone is if I told them what they wanted to hear.” (from Amy Goodman, “Troy Davis and the Meaning of ‘Actual Innocence,’” commondreams.org.)
Recantations notwithstanding, the Georgia parole commission refused to commute Davis’ sentence, while Georgia courts have refused to hear the new evidence alleging Davis’ innocence.
On August 17, however, the Supreme Court heard the Davis case, and voted, 7 to 2, to order the District Court in Georgia to “receive testimony and make findings of fact as to whether evidence that could have been obtained at the time of trial clearly establishes [Davis’] innocence.” Supreme Court Justice John Paul Stevens wrote for the majority, “The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.”
One would think. One would hope that any jurist, any court, any law officer would be similarly reluctant to put an innocent man to death, that delaying the man’s execution and holding a hearing would be a no-brainer. But one would be wrong. For sitting on this Supreme Court are two justices, Antonin Scalia and his puppet, Clarence Thomas, who seem to have no such qualms, or even qualms about making their lack of qualms known, and strongly dissented. For them, mere innocence is no defense; or, to put it in the legalese Scalia loves to pen, there is “considerable doubt that ‘actual innocence’ is constitutionally cognizable”. Here are the great Scalia’s words:
This Court [i.e. the Supreme Court of the U.S.] 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.
For Scalia and Thomas, in other words, Davis had his trial, and that’s all he has coming to him. The Constitution of the United States, and therefore the Supreme Court of the United States, has, and never should have any truck with soft-headed concerns like “actual innocence.”
We have heard this kind of thing from Justice Scalia before, notably when he engineered the false election of George W. Bush in 2000 by simply foreclosing the right of the Florida courts to re-count the ballots. Mere accurate vote counts, he judged, had nothing to do with it. This, however, is the first time we have heard asserted in the highest court in the land that innocence has nothing to do with the law, or with constitutional protections, or with stopping the state from wrongful murder.
When we put these two cases together, then, the implications are dire. If Jaycee Dugard cannot count, for eighteen agonizing years, on parole officers or police officers to make routine checks to discover her plight, if Troy Anthony Davis cannot rely on innocence as a defense, but only on cops and judges and Supreme Court Justices to be diligent in agreeing to kill him, what kinds of protections can anyone—save only wealthy bankers, torture lawyers, corporate flim-flam artists, and political hacks—expect from the American system of justice? Sadly, the answer seems to be none; for to expect more, to expect rationality or intelligence or due diligence, or, god forbid, compassion, is to expect blood from a stone.