Actual Innocence and Capital Punishment

In an unusual action taken during the summer recess when the Court does not take normally actions of this significance, the US Supreme Court ordered that the petition for a writ of habeas corpus in the case of In re Troy Anthony Davis, 08-1443, be transferred to the US District Court for the Southern District of Georgia for hearing and determination. The Court directed the District Court to receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence. Justice Stevens filed a concurring opinion joined by Justices Ginsburg and Breyer. Justice Scalia filed a dissenting opinion joined by Justice Thomas.

In seeking relief in the case, Davis’ lawyers told the Supreme Court that the new evidence, which they claim shows his innocence, was obtained only after the trial was over, as part of the preparation for a federal habeas case. The Supreme Court’s order does not determine whether the evidence was new, appearing to leave it to the District Court to make the initial judgment about that, as well as about whether any evidence the District Court determines is new shows, upon analysis, that he was innocent of the murder for which he faces the death penalty.

Justice Scalia stated at page 2 of his dissent that:

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. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable. See Herrera v. Collins, 506 U. S. 390 (1993).

The case arises from a 1991 trail in Georgia state court where Davis was convicted in 1991 of murdering an off-duty Savannah police officer, Mark Allen MacPhail, in 1989. An article in last week’s NY Times on the increase in dissents in death row habeas corpus cases under the Anti-Terrorism and Effective Death Penalty Act (AEDPA) reported that Judge Rosemary Barkett of the United States Court of Appeals for the 11th Circuit, in Atlanta, complained of the law’s “thicket of procedural brambles.” Dissenting from a decision by her colleagues, Judge Barkett noted that seven of the nine witnesses in the Davis’ murder trial recanted their testimony. To execute Mr. Davis without fully considering that evidence would be “unconscionable and unconstitutional,” wrote Judge Barkett, who has voted in more than 200 other cases to uphold the death penalty.

The Davis case also has several other individuals implicating another man, Sylvester “Redd” Coles — the prosecution’s key witness against Davis — as the shooter. The facts of the Davis case make it one where the Supreme Court may rule favorably on the open issue of whether “actual innocence” can be the basis for granting a habeas corpus petition. Groups like Amnesty International USA and the NAACP have take a leading role in pursuing the issue of including actual innocence in death penalty appeals. Amnesty International’s video on Davis is below