Justice Scalia fails to address or be concerned with the fact that the appellate process is very narrow in what it allows to be considered in capital cases. He overlooks, in his assessment that new data--including DNA--is not usually allowed to bring forth a new examination of the case. Rather he suggests that the original trial by jury that resulted in a conviction based on evidence "beyond a reasonable doubt" and the appeals process that takes place in all death-penalty convictions is sufficient to ensure that innocent people are not executed.
Even for those who support the death penalty I argue that "beyond a reasonable doubt", while it plays out in movies and TV programs, assuring the viewer that all evidence has been considered, is too low a standard for something that is irreversible as an execution.
Conclusion:
DNA testing [has] established conclusively that numerous
persons who had been convicted of capital crimes (by
'proof beyond a reasonable doubt') were, beyond any
doubt, innocent.
--Judge Jed Rakoff, United States District Court
Southern District of New York
United States v. Quinones (2002)
(in Gross, 2013)
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