Death Row Prisoner Wins Hearing

Professor Deborah Denno in The Washington Post, August 18, 2009

Media Source

Death Row Prisoner Wins Hearing
Supreme Court Orders Review of Evidence in Georgia Case

By Robert Barnes
Washington Post Staff Writer
Tuesday, August 18, 2009

The Supreme Court on Monday took the rare step of ordering a federal judge to consider the innocence claims of condemned Georgia prisoner Troy Anthony Davis, who has mounted a global campaign to declare he was wrongfully convicted of murder and barred by federal law from presenting the evidence that would prove it.

The court interrupted its summer recess to order a new hearing to determine "whether evidence that could not have been obtained at the time of trial clearly establishes" Davis's innocence.

Davis has come close to execution several times since he was convicted of the 1989 killing of off-duty Savannah police officer Mark Allen MacPhail. The case has spawned a national and international following, intense interest from Amnesty International and the NAACP, and support from Pope Benedict XVI, former president Jimmy Carter and Archbishop Desmond Tutu, among others.

Monday's court decision comes at a time when federal judges have complained that a law passed by Congress in 1996 to streamline the death penalty appeals process keeps them from getting to questions of innocence raised by condemned petitioners.

In Davis's case, liberal Judge Rosemary Barkett of the U.S. Court of Appeals for the 11th Circuit criticized the Antiterrorism and Effective Death Penalty Act's "thicket of procedural brambles," as well as her court's decision that the law barred Davis from presenting what he said is newfound evidence.

"AEDPA cannot possibly be applied when to do so would offend the Constitution and the fundamental concept of justice that an innocent man should not be executed," Barkett wrote in dissent.

Davis's lawyers filed a petition directly with the Supreme Court after lower federal courts said that, because he could point to no constitutional defects in the trial he received, he could not present new evidence that would show his innocence. Davis says that since his trial, seven of Georgia's nine key witnesses have recanted their testimony against him. He claims that the man who was the key witness against him was the actual shooter.

Justice Antonin Scalia objected to the court's decision to order a new hearing, an "extraordinary step" he said the court had not taken in nearly 50 years. Joined by Justice Clarence Thomas, he called the action a "fool's errand" and a "confusing exercise that can serve no purpose except to delay the state's execution of its lawful criminal judgment."

At the heart of the issue is what federal courts are to do with claims of innocence by those convicted in state courts, when there were no constitutional violations at trial.

"This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent," Scalia wrote. "Quite to the contrary, we have repeatedly left that question unresolved."

But Justice John Paul Stevens, who countered Scalia's dissent in an opinion joined by Justices Ruth Bader Ginsburg and Stephen G. Breyer, said the "substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing."

He suggested that it would be "arguably unconstitutional" for the federal law to not provide relief for a death row inmate who has established his innocence.

Newly installed Justice Sonia Sotomayor did not take part in the decision. The judgments of the other three justices -- Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Samuel A. Alito Jr. -- were not indicated in the court's order, although presumably at least two of the three agreed with the decision to order the new hearing.

Deborah Denno, a death penalty expert at Fordham Law School, said the decision was "certainly significant" and shows that the court is "paying attention to cases on death row" in which inmates are claiming federal law restricts their ability to present new evidence.

Kent Scheidegger, a capital punishment proponent at the Criminal Justice Legal Foundation, said such claims "are quite rare," and that the court's "highly unusual action" posed no threat to the death penalty system.

Davis's lawyers believe they have established an impressive case for their client's innocence with the recantations and testimony from others that Davis was not the shooter. Scalia was not impressed, and he disputed the notion from Davis that no court has carefully considered his new claims.

"A state supreme court, a state board of pardons and paroles and a federal court of appeals have all considered the evidence Davis now presents and found it lacking," Scalia wrote.

But Stevens said that, under Scalia's argument, it would not matter how persuasive the evidence was. "Imagine a petitioner in Davis's situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man," Stevens wrote. "The dissent's reasoning would allow such a petitioner to be put to death nonetheless. The court correctly refuses to endorse such reasoning."