Cotton Mather was the first American Judge! This Historical Fact & his use of ‘Spectral Evidence’ was the precursor to American Jurists’ proclaiming the American Law Court as above Morality! Add to this Scalia’s on ‘innocence’ as explicated by Lee Kovarsky.
Justice Scalia’s position on actual innocence issues was inseparable from his hostility to death penalty “abolition,” and he viewed abolitionists as ringleaders of the wrongful- convictions movement. Sensing the threat that wrongful executions posed to the sanctity of state criminal process, he spent his latter years on the Bench arguing that estimates of
such events were inflated. He was unable, however, to command a majority on his more controversial ideas about actual innocence in death penalty cases. Instead, his officially
expressed views appear in a “tetralogy” of auxiliary opinions: opinions concurring with judgments in Herrera v. Collins4 and Kansas v. Marsh, 5 an opinion concurring with the denial of certiorari in Callins v. Collins, 6 and an opinion dissenting from
the order granting a fact-finding transfer to a district court in In re Troy Davis. 7
Collectively, the Tetralogy captures Justice Scalia at both his most and his least effective. His sometimes-dazzling epistemological critique forced a more analytically rigorous
restatement of actual innocence doctrine. His foundational premise, however, was that the reliability of state guilt determinations was not systematically overstated. As evidence
inconsistent with that premise mounted, however, he refused to acknowledge its enormous doctrinal implications. By the time of his death, his basic epistemological insight had become the most effective weapon against the deference to state criminal
process that he had originally used it to promote.