Hold On

Via The Quaker Agitator, is news of the latest decision to hold off putting Troy Davis to death, yet again.

I've written about the case of Troy Davis before, The Quality of Mercy, the Georgia man who has been on death row for 17 years for the murder of a police officer. With compelling questions raised about his guilt or innocence, shortly before he was scheduled to be executed, the US Supreme Court issued a stay, Death is Final.

As noted by SCOTUSblog, Davis’ lawyers urged the Supreme Court to issue a definitive ruling that the Eighth Amendment creates a right of an innocent person not to be executed. The appeal also sought a new hearing to present the new evidence in an effort to spare his life. However, last week the Court declined to take up the appeal, Court clears way for Davis execution, and he was again scheduled for execution this Monday.

A new round of appeals was filed, asserting that the constitution mandates that his claims of innocence be heard before he is put to death, Lawyers launch new appeal effort. For the third time, Davis has successfully put off his date with death.

The Court of Appeals issued the stay on Thursday, Court issues stay of execution for Troy Davis:

On Wednesday, Davis asked the 11th Circuit for permission to pursue a new federal habeas corpus petition — in which an inmate claims he is unlawfully incarcerated. The Antiterrorism and Effective Death Penalty Act of 1996 requires a federal appeals court to approve such a request before such a new lawsuit can be filed.

“Upon our thorough review of the record, we conclude that Davis has met the burden for a stay of execution,” the court said in an order issued by Judges Joel Dubina, Rosemary Barkett and Stanley Marcus.

The judges called the stay “conditional” and said they want to hear more from Davis’ lawyers and state attorneys.

Davis must clear two difficult legal hurdles to win a new round of appeals.

First, he must show that his lawyers could not have previously found the new evidence supporting his innocence no matter how diligently they looked for it. And he must show that the new testimony, viewed in light of all the evidence, is enough to prove “by clear and convincing evidence that…no reasonable fact finder would have found [him] guilty.”

The 11th Circuit added a twist. It asked the parties to address whether Davis can still be executed if he can establish innocence under the second standard but cannot satisfy his burden under the first, due-diligence question.

Unfortunately, despite this news, the remaining hurdles that Troy Davis still faces are still overwhelming. Although there is much evidence that brings his conviction into question, even getting approval to hold a hearing where such testimony would be considered is difficult. The legal standard that must be met before a hearing would be permitted is exceedingly stringent.

Barry Scheck, co-Director (and founder) of the Innocence Project, explains, Troubling Questions Surround Troy Davis Execution Set for Monday, the legal conundrum that imperils Davis' ability even to be heard:

What most people don't know is why Davis can't get a full hearing on the new . . . post-conviction evidence of innocence.

The recantation of a witness alone does not and should not automatically result in a conviction being vacated -- recantation evidence is treated with caution by courts because, after all, the witness is saying he or she once lied under oath, so how can one be so sure they are not just lying again? Nonetheless, many wrongful convictions have been overturned because a recanting witness, testifying in person and under oath before a judge, is found to be credible and the reason for the recantation - often a claim that the original trial testimony was coerced - is found to be persuasive. But in Georgia the recanting witnesses don't get to testify because the state's courts have created an extraordinary Catch-22 rule -- the "purest fabrication" doctrine - that arbitrarily denies evidentiary hearings even when extremely persuasive recantation affidavits have been submitted.

The "purest fabrication" doctrine means that post-conviction hearings don't have to be held to evaluate the credibility of recanting witnesses unless the defendant can show, by extrinsic proof before the hearing is held, that the original testimony was absolutely false.

NPR also recently discussed the issues and hurdles involved in the Troy Davis case.

As a lawyer -- someone who parses words for a living -- I can tell you that the standard required by the term "purest fabrication" is nearly impossible to meet from a legal perspective. I've spent plenty of time negotiating the use of "best" vs. "reasonable" efforts language in corporate agreements, so I can attest that word usage in the law can be significant. What may seem to be a simple statement to a non-lawyer is often laden with meaning in a legal setting.

And yet, when a life is at stake, it is unconscionable to impose a standard that impairs the ability to get at the truth. I am somewhat heartened by the fact that the Court of Appeals requested that the parties address the question whether a person who may be able to establish innocence may nonetheless be denied an opportunity to establish his innocence because of a procedural requirement.

In other words, are we as a society willing to permit an innocent man to die merely to satisfy some legal rule that may prevent the truth from ever being discovered? And if so, what does that say about us?