Let’s say that you are put on trial for a murder that you didn’t commit. And then let’s say that you are convicted of that murder. And let’s say that you appeal your conviction but the conviction is upheld because the judge, lawyers, and jury in your case all acted appropriately. The facts and testimony made it look like you were guilty, but you weren’t. It wasn’t the fault of the justice system that you were convicted, but the fault of a cruel twist of fate.

That can happen. I am sure it has happened many times.

So, imagine now that you are put on death row. And while you are awaiting your execution, the witnesses at your trial begin to recant their story. Eventually, seven of the nine key witnesses against you recant their testimony. New people come forward and implicate one of the witnesses against you as the true murderer.

In this circumstance, would it be Constitutional to execute you. If you are Antonin Scalia, it might very well be.

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.

I think Scalia is arguing that the Supreme Court is under no obligation to grant a reprieve to an innocent man if that man was convicted in a fair trial. But, in this case, most of the key witnesses say that they gave false testimony. How fair is that? It may be true that the prosecutor didn’t knowingly introduce false evidence and that the judge conducted the trial according to the law and that the jury followed their instructions to a tee. But the trial wasn’t exactly fair when it was filled with perjurers, now was it? And even under this reading of the law, how could it be Constitutional to execute a man you believe to be innocent?

How did this guy get confirmed unanimously to the court? Naturally, Clarence Thomas joined Scalia in this dissent. But the court has granted a hearing and this man may yet avoid execution.