I have a piece about the execution of Troy Davis which echoes a lot of the points in Paul’s superb post below. The really frightening thing about the case is that while it’s absurd to think that the state met the burden of proof that should be necessary to incarcerate Davis — let alone execute him — once he started down the path of contemporary habeas corpus law, which reverses the traditional burden of proof, he never had a chance. I’m generally not crazy about pardons as a remedy, but this is a case where the failure of the Georgia Board of Pardons and Paroles is particularly disgraceful. They can’t claim to be unaware about what we now know about the unreliability of eyewitness IDs, particularly those collected under these kind of conditions. They knew that Davis was convicted solely on the basis of extremely unreliable evidence — and allowed him to be executed anyway despite unambiguously having the power to stop it.
I think this is implicit in Paul’s argument, but another thing I’ll add is that Scalia’s image of himself as a formalist who follows the law wherever it leads no matter how unpalatable the results is purely a pose. Leaving aside the other prominent examples of Scalia’s results-oriented jurisprudence, somehow the self-congratulatory formalism that revels in people being sent to the death chamber is particularly disgusting in the wake of his proud participation in Bush v. Gore. It’s especially instructive to compare the infamous Herrera v. Collins concurrence with his opinion justifying the stay in Bush v. Gore, which among very tough competition was the most nakedly partisan and implausible of the three opinions.