It’s hard to argue against Lee Kovarsky‘s position that DNA fingerprinting offers a cognitive method so powerful that no sane person, not even a judge, can honestly ignore all the discoveries made through its application. It’s likewise impossible to accept Justice Scalia’s insistence that decades-overdue DNA-based exonerations are evidence that “the system works.” He sounded like a defeated dogmatist resorting to the magic circular argument.
Worse, one of Scalia’s polemical concurrences, from 1994, included a blunder of epic proportions. Arguing against Hugo Blackmun’s blanket opposition to the death penalty, Scalia cited…
…the case of the 11-year old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina, No. 93-7200, cert. now pending before the Court. How enviable a quiet death by lethal injection compared with that!
Kovarsky points out that McCollum, sentenced to death for his allegedly leading role in this gang rape and murder, was exonerated in 2014, when another man’s DNA was found on a cigarette butt found next to the victim’s body. That other man lived one block away from the crime scene and had three prior convictions for rape and assault. At the time of the rape/murder of which McCollum was convicted, that other man was already a suspect in another rape/murder; three weeks later he raped and strangled yet another woman.
It would be easy to defend Scalia by suggesting that he did not mean McCollum specifically but, rather, the true perpetrator: “Whoever did it deserves death.” The problem is, it wasn’t what Scalia – in deference to the trial court – claimed it to be. There was no proof that the girl was raped by four men. The suspect’s confession said so, but it was not corroborated by any other evidence. McCollum was a mentally retarded 19-year-old with “an IQ between 60 and 69 and the mental age of a 9-year old,” as Justice Blackmun noted in his indirect riposte to Scalia. The young man wrote down his “confession” during an interview with a police officer, without a lawyer or a friendly adult present.
Perhaps false confessions were not well understood in 1994, when Scalia penned his now-infamous concurrence in Callins and when (four months later) the Supreme Court denied certiorari to McCollum. Even so, any reasonable person with an IQ above room temperature would have detected a red flag of no mean proportions. Any sensible, impartial observer would have suspected that the detainee simply took dictation from the officer.
In other words, an influential Supreme Court justice relied on a thoroughly unreliable – fantastical, hallucinatory, oneiroid – account of a crime stamped as authoritative by state courts. Laundered through the legal system but not to the point of bleaching the red flags.