Procedural justice, requiring such things as warrants and proof beyond a reasonable doubt and prohibiting such things as double jeopardy, must apply to the guilty and the innocent alike to prevent substantive injustice from being done to the innocent. That it is better that 100 guilty men go free than that 1 innocent suffer remains a necessary and fundamental principle of justice. Nullifying procedural or evidentiary rules is a different and more problematic proposition than nullifying substantive laws.

I would have replied earlier, but my blogging software doesn’t do a good job of notifying me of comments from commenters whose comments I’ve previously approved.

If I understand you correctly, you are saying that a judge must, if he is convinced that a law is unjust, apply the law as he believes justice requires rather than as the legislature has written it.

I wonder if you would agree that this should cut against criminal defendants just as much as it cuts in their favor. For example, say a search is done without a warrant and no exceptions to the warrant requirement apply. But the police had sufficient probable cause to get a warrant had they asked for one anyway, and the Defendant seems like a really bad guy. Surely justice requires that the illegally-obtained evidence by admitted. Right?

Or say a person is found not guilty of a crime. But then new evidence surfaces that proves they did something really bad. Surely a judge shouldn’t let a rule like double jeopardy prevent justify from being done. I mean, in this case, justice requires him to be punished for the bad thing he did. Right?