Radley Balko found that Alan Dershowitz is also bewildered about Scalia’s anti-innocence position.

The Justice, we are reminded, believes that actual innocence is Constitutionally irrelevant if a person has been convicted in a “fair” trial. Dershowitz then asks:

Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”

Dershowitz then explores an angle I neglected in my prior post: Scalia is famously very, very Catholic — and has said in the past that he would have to resign if his duties ever conflicted with his faith. The Vatican is no fan of capital punishment, and surely must view allowing an innocent man’s execution as particularly egregious. How, Dershowitz wonders, does Scalia reconcile these positions?