I opened a giant wooden door that separated the West Courtroom of the Fifth Circuit Court of Appeals from the bare hallway that connected the room to the fresh outside air. A small man with a patchy beard waited nervously to the right. He looked like a kid wanting an autograph from his favorite quarterback. He was a representative of the Texas Attorney General’s Office. He was waiting for my colleague and mentor.
We’d just finished arguments in front of a panel of the Fifth Circuit. A few minutes prior, my mentor had argued that we were in front of the court to talk about the “most egregious violation of the sixth amendment in American history.” It was a bold claim, of course. The kind of claim that a skilled appellate litigator would always avoid if it wasn’t true. I thought that it was. Our client spent three decades in a Texas prison without a valid conviction or sentence. His case had been overturned by the Court of Criminal Appeals, the highest state criminal court in Texas. The district attorney’s office that had once sentenced him to death had been ordered by the high court to either release our client or re-try him. They chose the third rail, to just leave him in prison without doing a thing. He was a black man with a documented IQ of somewhere between 55 and 65. In layman’s terms, that made him intellectually disabled or “mentally retarded.”
My mentor argued that because the State failed to try our client over the three decades that he was in jail, the State had violated his speedy trial rights. The little man with the teenage beard argued that it wasn’t the State’s fault. He argued that our client, who was barely lucid enough to know how to tie his shoes, should somehow bring himself to trial, even though he was behind bars in the Texas penitentiary. The little man with the teenage beard argued, in the alternative, that the federal court there did not have jurisdiction to decide on the case at that time because of arcane procedural reasons that only very skilled federal appellate litigators would understand. His argument could be boiled down to a very simple stew—we didn’t do anything wrong, and even if we did, you should let the State of Texas kick this case around for two more years before we end up back in this exact same court to answer the question of whether this man’s speedy trial rights were violated.
It was all very civilized. Men in suits speaking into microphones that sent noise to men and women sitting in robes behind nice antique furniture. Others were there to argue cases that didn’t resemble ours. Some looked up from their own notes when they heard my mentor speak of the gravity of the case before us.
After we’d argued, our team exchanged the usual pleasantries.
“I appreciate you flying down here to support us,” my mentor said. I assured him that the soft poker at nearby Harrah’s was as much a draw as lending my support to our client. We were all smiles. Then there was the little man with the teenage beard. He wanted to talk so badly.
My mentor acknowledged him. The little man began to speak.
“I think I worked with a professor who now works with you at the Law Center,” he said to my mentor, referring to my alma mater in Houston.
My mentor was gracious. He’s the author of books about the death penalty. He’s secured exonerations of a handful of innocent men. He’s given a speech at the TED conference. He’s the sort of man that anyone in our field would want to meet and greet. He talked with the little man for a few seconds. I couldn’t bring myself to join in the pleasantries. I commented that my mentor was twice the man I was for even entertaining the conversation. My mentor had already been through the wars. He’d been taking on Capitol Mutts for so long that dealing nicely with another one was as natural as a politician shaking hands at a rally.
I realized something in that moment. Something beyond the fact that my mentor was immensely better than me at work and life. I realized that the differences between me and the little man with the teenage beard weren’t the sort of differences that could be bridged with a handshake and a short exchange of small talk.
When I stripped away all of the bullshit, he had been arguing to keep my mentally retarded black client in prison despite a gross violation of that man’s civil rights. Our client had been abused by the State for decades. When his case was overturned by the high appellate court, it was joined by two cousin cases where those gentlemen also received outright overturns of their death penalty cases. One of those men was black. The other was white. The black man was re-tried by the State. He was convicted a second time, and he was sentenced to death. He had since been executed by lethal injection, poison pumped into his veins until he died on the gurney like a dog. The other man, the white man, had his sentence properly commuted under the law. He was paroled in the 1990s, left to live out his years with his family. Our client had been left to rot in a prison cell despite a legal right to a new trial.
It wasn’t a game. Our differences were not small, not political. The little man with the teenage beard had ostensibly spent the weeks before the oral argument planning creative ways to keep our client in prison a little bit longer. He’d been looking for ways to work around the sixth amendment rights that our client was due as a human. In the first few minutes I knew him, when he spoke to the judges of the Fifth Circuit, he’d spun himself into knots not arguing for mundane political advances, but for the continuance of Texas’s keeping a man in a cage. The consequences of our sides were real. They came down right on the disabled head of our client.
That leads me to Antonin Scalia, the Supreme Court justice who died the day before Valentine’s Day in 2016. In the wake of Scalia’s death, opinions flowed over in my field. They flowed, too, from the average Joe not in my field. People who think like I do were just as gracious as my mentor had been to the little man with the teenage beard. They did that for two reasons. For one, they’re better than me. Perhaps most importantly, they did so because they had to.
Hilary Clinton said in a statement:
“My thoughts and prayers are with the family and friends of Justice Scalia as they mourn his sudden passing,” she said. “I did not hold Justice Scalia’s views, but he was a dedicated public servant who brought energy and passion to the bench.”
Bernie Sanders offered:
”While I differed with Justice Scalia’s views and jurisprudence, he was a brilliant, colorful and outspoken member of the Supreme Court.”
California Attorney General Kamala Harris wrote:
"In his three decades on the Supreme Court, Justice Scalia left a lasting impression on American jurisprudence. Even those of us who vigorously disagreed with his views recognized the power of his intellect."
Avowed death penalty opponent Sister Helen Prejean wrote:
“I'm very saddened to hear about the death of Supreme Court Justice Antonin Scalia. Although we didn't always agree, we were both Christians and were united on those essential principles. My thoughts and prayers are with Justice Scalia and his family.”
Even President Obama offered his thoughts on the value of Scalia’s “service” to the public. I have immense respect for the people that offered these opinions. I have even more respect for the pressures that made them contribute to needless hagiography rather than telling the truth. There’s no reason to make margaritas in celebration of Scalia’s death. Celebrated civil rights lawyer Clarence Darrow once said, “All men have an emotion to kill; when they strongly dislike some one they involuntarily wish he was dead. I have never killed any one, but I have read some obituary notices with great satisfaction.” His is my sentiment. I disagree strongly with anyone who frames differences with Scalia as “political” ones. It’s reductionist and revisionist, reducing important moral imperatives down to little more than questions that could be resolved in many ways. The problems with Scalia were bigger than that.
The Constitution of the United States is not a legal document. The people who interpret it are making legal distinctions off of the document, and the people who argue using it are making legal arguments based upon it. But it is not a legal document. It’s a moral document. It’s a founding principle that gives equal rights to all men, regardless of race, religion, class or station. It’s a document that understood how important it was to protect certain moral truths from the whims of politics. The Sixth Amendment exists because the founders recognized that a fair trial wasn’t something to be left to voters, who are prone to getting things very wrong a few times before they get things right. The Fifth Amendment is there because the right of non-incrimination shouldn’t be left to a guy who just discovered the criminal justice system when he stumbled upon Making a Murderer just before Christmas. That anyone believes they have “political” differences with Antonin Scalia is proof enough that his visage is worth truthful dissection.
I differed most with Scalia on the death penalty and the treatment of condemned people. Today, I’ve watched as fellow criminal defenders have posted pictures of the justice, and even as some lamented the harsh treatment of the justice. One broke down her opinions as a mere “disagreement” on ideological grounds. She acted as if her and Scalia agreed on the importance of educating our children, but disagreed on the proper way to do it. That’s a political disagreement. With Scalia, it’s much deeper than that.
I’m friends with Anthony Graves, the 12th man ever exonerated off of death row in Texas, the 138th exonerated nationally. He’s a black man who was sentenced to death for a mass child murder that he knew nothing about, only after prosecutors hid evidence, coerced witnesses, and manipulated the jury in the media. He was exonerated only after 18 years in custody. He suffered immensely, enduring solitary confinement, missing out on birthdays, Christmas mornings, and Easter egg hunts with his children. That he’s now out and using his voice to change the world does not make up for the wrong that was done to him. My friend petitioned the Supreme Court to take up his case after his appeals were denied in state court and the lower levels of the federal system. As in most death penalty cases, the Supreme Court declined to take up my friend’s case. Antonin Scalia left my friend to die. He didn’t care.
And why would he? Scalia once famously declared:
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. 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 the uninitiated, the justice was saying, in effect, that the constitution is no barrier to executing a man who is actually innocent so long as that death sentence has been obtained in a nominally “legal” manner. He had other death penalty opinions that stood out, too. In 1994, Justice Harry Blackmun wrote an opinion questioning the constitutionality of the death penalty. Scalia responded by picking out what he perceived to be the worst of worst in death penalty cases. He picked Henry Lee McCollum, writing that McCollum’s case was a great example of why the death penalty was still necessary. He wrote:
“For example, the case of an 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!”
McCollum walked off of death row in 2015 after DNA evidence proved his innocence. So much for Scalia’s model case. You see, Scalia was prone to pronouncements that amounted to little more than demagoguery. His statements contributed to decades of operation of the machinery of death, which took lives in brutal state-sponsored murder.
Of course he didn’t stop at the death penalty. He dissented in Lawrence v. Texas, standing short in his belief that states should be allowed to jail gay people for having sex. His most recent headlines came when he suggested in an affirmative action case that black men might be better off at “less advanced schools,” where they might do better.
To cloak these moral distinctions as “political differences” is disingenuous. It’s the sort of stuff that will allow an Antonin Scalia monument to be erected somewhere in honor of his “passion” or “service” in the decades to come, as the younger public is duped into believing that his opinions were just the product of a different kind of legal reasoning. Since when did adjectives like “passionate” become a good thing without context? A man who is passionate about causing pain isn’t one to celebrate. In fact, it would have been better if he’d pursued his agenda with far less passion. The “service” of a man who dedicated his career to marginalizing the already marginalized is not a service we should honor. That man would have been better off choosing a high-dollar law firm, where he could have marshaled his considerable legal skills in favor of money before running himself into the ground.
Death does not wash away the stench of planned cruelty. Scalia holds more moral responsibility for his decisions than the average villain. His weren’t in-the-moment mistakes made under pressure. They were calculated judgments made after hours, days, and weeks of reflection. They were opinions written with the greatest of care.
To reduce these opinions, and these differences to the unmoving label of “political” does a disservice to the pain his decisions brought to actual human beings. Like the little man with the teenage beard, Scalia’s actions weren’t without a victim. When he wrote of the death penalty, he directly weighed on my friend Anthony and plenty of others, too. When he ruled in Lawrence, he laid the groundwork for much of the hate that’s made assaults on gay men and women a thing that we must tackle in 2016. If you call these political differences, as if they’re just different methods of solving a problem, you demonstrate a stunning lack of understanding that when Antonin Scalia spoke and wrote, his words carried unique power that often led to death, added to prejudice, and threatened to set America back a hundred years.
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