The debate in Kansas v. Marsh between Justice Scalia and Justice Souter regarding wrongful convictions has received considerable attention in the blogosphere. As Doug Berman notes, the debate was odd and off-topic in a case where the question presented dealt only with the penalty phase and not the guilt verdict. Two other cases decided this term, House and Holmes, actually did address issues related to actual innocence. Why didn't Justice Souter raise his complaints in these cases? Maybe he thought it would have seemed even stranger to raise them in cases where the defendant won a new trial or hearing from the Supreme Court and the problem was being effectively addressed.

As Ward Campbell noted in a comment to an earlier post here, Justice Scalia may have gotten much of his ammunition from the amicus brief of California and 14 other states filed in the House case. That brief is available here.