Wednesday, August 19, 2009

A Claim of Innocence

Surprising. Shocking. Highly Unusual. Extraordinary. Stunning. Those are some of the reactions (the last one's mine) to the Supreme Court's recent decision in the Troy Davis case.

As the NYTimes reports, Supreme Court Orders New Look at Death Row Case:

The Supreme Court on Monday ordered a federal trial court in Georgia to consider the case of Troy Davis, who is on death row in state prison there for the 1989 murder of an off-duty police officer.

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The Supreme Court’s decision was unsigned, only a paragraph long and in a number of respects highly unusual. It instructed the trial court to “receive testimony and make findings of fact” about whether new evidence clearly established Mr. Davis’s innocence. Justice Sonia Sotomayor, who joined the court this month, did not participate.
See also, U.S. Supreme Court orders new hearing for Troy Davis.

The SCOTUSblog explains the unusual nature of the decision, Hearing on innocence claim ordered:
The action was highly unusual, because Davis had filed what is called an original writ of habeas corpus — that is, a plea for his release, filed directly in the Supreme Court rather than in lower courts. Such claims rarely succeed. Justice Scalia noted in his dissent that the Court had not taken a similar step “in nearly 50 years.”

The action also was unusual because the Court normally does not take actions of this significance during its summer recess. The case had been ready for the Justices’ consideration near the end of their past Term, in late June, but they simply took no action at that time. There was no word on why the Court took it up again at this time, rather than waiting until a new Term had opened. The length of the two opinions released Monday, however, may have taken some time to prepare, especially with most of the Justices traveling during the summer recess.
Considering the implications of this move by the Court, the LATimes notes, Supreme Court orders new hearing for Georgia death row inmate:
In a surprising move that could indicate a more liberal stance toward death penalty appeals, the Supreme Court on Monday granted a new day in court for a Georgia death row inmate whose two-decade legal saga gained international attention after seven trial witnesses recanted their testimony against him.

The court's order was the first of its kind in nearly 50 years. The recantations have helped Troy Anthony Davis, 40, earn powerful allies in the court of public opinion, including Pope Benedict XVI and President Carter.

Davis' attorney considered the petition a long shot, but the Supreme Court instructed a federal district court to hold a hearing to determine whether Davis' innocence could be established by evidence that wasn't available in his 1991 state trial.

"The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing," Justice John Paul Stevens wrote in concurring with the order.

* * * *
Legal experts were taken aback by the rare move, which came during the court's typically sleepy summer recess. A number of experts said it could indicate that the federal justice system may be loosening its conservative position toward death penalty appeals.

Federal court rulings in recent years had been making it harder for inmates to win writs of habeas corpus, or pleas for their release. Congress also raised the bar in 1996 with the Anti-terrorism and Effective Death Penalty Act, passed in the wake of the Oklahoma City bombing.
I have followed the Troy Davis case for some time. After his last appeal was denied by the court of appeals in Atlanta, I did not have much hope for success in further avenues of appeal. As I said then, We Remain Unpersuaded: "Unfortunately, the news is not surprising. Even when the court granted the appeal, I noted in Hold On, that '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.'" With the number of conservative members on the Supreme Court, I would have expected that Davis' claim would have been denied. Luckily, I was wrong.

Of course, the decision of the Court was not unanimous. The NYTimes observed:
The decision set off a sharp debate between Justices John Paul Stevens and Antonin Scalia about Supreme Court procedure, the reach of a federal law meant to limit death row appeals and the proper treatment of claims of innocence.

“The substantial risk of putting an innocent man to death,” Justice Stevens wrote in a concurrence joined by Justices Ruth Bader Ginsburg and Stephen G. Breyer, “clearly provides an adequate justification for holding an evidentiary hearing.”

Justice Scalia, in a dissent joined by Justice Clarence Thomas, said the hearing would be “a fool’s errand,” because Mr. Davis’s factual claims were “a sure loser.”

He went on to say that the federal courts would be powerless to assist Mr. Davis even if he could categorically establish his innocence.

“This court has never held,” Justice Scalia wrote, “that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”
See also, Split Supreme Court Orders Review of Death Row Inmate's Claims That Witnesses Recanted Testimony.

Scalia & Thomas epitomize the problems of having Justices without empathy on the court. Thankfully, that was not ultimately found to be a bar for Justice Sotomayor. These two compassion-less conservatives would defer to the jury's decision on guilt -- even in a death penalty case -- despite the myriad cases where a wrongful conviction have later been established. See Two Readings of Scalia. While I understand the need to have finality in court proceeding, the considerations are obviously different when death is the penalty. As I noted before, in Hold On:
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?
Josh Patashnik of the Plank echoes this sentiment in The Troy Davis Case and Standards of Review:

But the problem is that . . . we generally don't think that level of certainty should be sufficient to put people to death. And this is a conflict between the way we think about the death penalty and the way the federal court system works in death penalty cases under AEDPA. Out of necessity, appellate courts grant immense deference to the factual findings of a trial court. You can't constantly be relitigating complex factual matters on appeal; the system would grind to a halt. Ordinarily, we're willing to tolerate the possibility that the trier of fact might have made a mistake, in order to provide some finality and preserve scarce judicial resources. In death penalty cases, for obvious reasons, people are inclined to throw such prudent procedural niceties out the window and say that the question of factual guilt or innocence should always be on the table in an equitable fashion, whether in state court or on habeas review in federal court, without stacking the deck in favor of the jury's verdict. But the system isn't set up that way.

Ultimately, the Davis case demonstrates the problems with the current law itself. In Preventing Another Troy Davis, Adam Server explains:
In the aftermath of the Supreme Court's decision to send consideration of Troy Davis' habeas case back to a federal court in Georgia for review, its worth reconsidering the law that made Davis' journey so harrowing in the first place. Despite the mountain of exculpatory evidence that emerged in the aftermath of his conviction (recanting witnesses, allegations of police coercion) and the weakness of the initial case (zero physical evidence) Davis' appeals were denied time again on legal technicalities arising from provisions in the Antiterrorism and Effective Death Penalty Act of 1996, which limited habeas petitions from prisoners sentenced to death in most circumstances.

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In this case though, what the law did was prevent a potentially innocent man from obtaining habeas relief in a case where he almost certainly deserved it. I understand the government's interest in preventing frivolous appeals from the convicted in capitol cases, but it's not in the interest of the government or society to execute the innocent, no matter what Antonin Scalia says. It's worth revisiting the habeas provisions of this law and seeing whether it can't be amended to make sure something like this doesn't happen again. Constitutional concerns about AEDPA also aren't new, even if the law has been upheld by the Supreme Court in the past.

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