Posted by Orin Kerr:
Rules Versus Justice:
In an essay in [1]Legal Affairs on judicial ethics, Judge Alex
Kozinski raises an interesting hypothetical on whether judges should
ever bend rules to reach a proper result.
[C]onsider this example: You are reviewing a criminal appeal
where a young man has been convicted of murder and sentenced to
life without the possibility of parole. You examine the record and
find that the evidence linking the defendant to the crime is quite
flimsy. The only solid proof supporting the conviction is the
testimony of an inmate who shared a cell with the defendant while
he was awaiting trial, and who swears that the defendant confessed
to the murder (a confession the defendant denies making). You read
the snitch's testimony closely and find it transparently
unconvincing.
Applying the rules of appellate review in an objective manner,
you would have to affirm the conviction. After all, the jury is the
trier of fact, and it was entitled to return a guilty verdict based
on the jailhouse confession alone. Yet what if you believe, to a
moral certainty, that the confession is a fabrication and the
defendant didn't do it? Must you affirm the conviction and let a
young man you believe is innocent spend the next 60 years locked up
like an animal in a 7-foot by 10-foot cage?
I have enabled comments. Thanks to [2]Howard for the link.
References
1.
http://legalaffairs.org/issues/January-February-2005/argument_kozinski_janfeb05.html
2. file://localhost/var/www/powerblogs/volokh/posts/1103316928.html
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