Yesterday's concurring comments by Justice Stevens is here; Justice Scalia’s dissent, here.
"Supreme Court Orders New Look at Death Row Case," is the title of Adam Liptak's New York Times report.
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. The case has attracted international attention, and 27 former prosecutors and judges had filed a brief supporting Mr. Davis.
Seven of the witnesses against Mr. Davis have recanted, and several people have implicated the prosecution’s main witness as the actual killer of the officer, Mark MacPhail.
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.
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.”
That question is indeed unresolved. In a 1993 decision, Herrera v. Collins, Chief Justice William H. Rehnquist wrote for the court that “we may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional and warrant federal habeas relief.” But the showing of supposed innocence in that case, Chief Justice Rehnquist said, fell short.
Mr. Davis reached the Supreme Court by an unusually direct route, filing an original writ of habeas corpus with the court rather than appealing from a lower-court ruling. The court has granted such petitions just a handful of times in the last century, and Justice Scalia said the court had not taken the “extraordinary step” of ordering a federal trial court to adjudicate such a petition from a state prisoner in nearly 50 years.
David Von Drehle writes the must-read, "Davis Ruling Raises New Death Penalty Questions," for Time.com.
Under normal circumstances, it takes a case of national importance to rile the Supreme Court during its summer recess. But in the words of an old axiom about capital punishment, "death is different." And so, on a sleepy mid-August Monday, Aug. 17, the court — over a strong dissent — dusted off an antique tool, unused for nearly half a century, to force a new hearing into the slow-rolling fate of a Georgia death-row prisoner named Troy Davis. In the process, the court has opened up new questions about the death penalty: most crucially, how far the courts must go to ensure that an innocent person — as a wide array of politicians, former prosecutors and judges contend Davis is — is not executed.
Like most death-penalty cases, this story is maddening and convoluted. Davis was convicted in 1991 of a tawdry and pathetic 1989 murder. On a hot Savannah night almost exactly 20 years ago, Davis and two acquaintances were hassling a homeless man at a Burger King parking lot next to the bus station. They wanted his beer, and one of the bullies — either Davis or a fellow known as Red Coles — clubbed the victim with a handgun. As it happened, an off-duty police officer, Mark MacPhail, was providing security at the restaurant. When he came running to the scene, the man with the gun shot the officer to death. (Read "Will Georgia Kill an Innocent Man?")
Anyone who has ever spent a few weeks on the police beat could guess what happened next. Coles blamed Davis. Davis fingered Coles. Investigators built a case from the available materials: ambiguous ballistics, jailhouse snitches, witnesses with grudges and the often unreliable observations of the sort of folks who need a burger at 1 a.m. The amalgam was enough to persuade 12 jurors that Davis was guilty, and because the dead man wore a badge, the sentence was death.
Five years later, Congress, exasperated by the seemingly endless nature of death-penalty appeals, passed a law intended to speed the death-row journeys of prisoners like Davis. Optimistically called the Antiterrorism and Effective Death Penalty Act (AEDPA), the new law attempted to limit death-row prisoners to one set of appeals in federal court. Despite the restriction, Davis raised a variety of constitutional issues in his trip through the federal courts. Along the way, his lawyers accumulated a stack of affidavits from the motley crew of witnesses and from snitches of their own recanting their trial testimony and, in some cases, pointing new fingers at Coles. The Davis case became a morass of contradictory statements from addled witnesses, many of whom were either lying then or are lying now — or maybe both.
And:
For Douglas Berman, a law professor at Ohio State University, "the way the court 'decided' the Troy Davis case today raises a lot more questions than it answers. It also probably ensures still more litigation in the future."
Among the questions: Is the district judge advising the Supreme Court on how to handle the Davis case or is the matter now formally in the district court again? Do the three silent Justices, who signed neither opinion — Chief Justice John Roberts and Justices Anthony Kennedy and Samuel Alito — have a shared view of this unusual action? (Newly sworn-in Justice Sonia Sotomayor did not participate in the case.) Is this step a prelude to an official determination that the Constitution forbids the execution of an innocent prisoner, a seemingly obvious assumption that has never been formally declared? If so, what new filters of trial procedure and judicial review will have to be installed to reach that level of certainty and perfection? In his dissent, Scalia wrote, "This court has never held 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."
The court's August eruption highlights once again the fundamental screwiness of America's death penalty. In the marble halls of our rational humanity, we demand absolute clarity and justice. As one of the many judges who has reviewed Davis' case puts it, "I do not believe that any member of a civilized society could disagree that executing an innocent person would be an atrocious violation of our Constitution and the principles upon which it is based."
"Troy Davis will get the hearing that justice demands," is by Cynthia Tucker at her Atlanta Journal-Constitution blog.
I have nothing but sympathy for the family of the late Mark Allen MacPhail, a Savannah police officer who was shot dead in August 1989. His family members deserve justice.
But they will receive it only if the criminal justice system has prosecuted and convicted the man who actually murdered MacPhail. Troy Davis, who sits on death row for the murder, may be that man. He may not be. And that’s the problem.
Many earlier witnesses have recanted their testimony since the original 1991 trial, so it’s not clear that Davis pulled the trigger. Given the recantations, the U.S. Supreme Court was right to order a lower court to give Davis a new hearing. Yesterday, in a highly unusual ruling, the nation’s highest court ordered a federal judge in Georgia tohear new testimony and decide whether it “clearly establishes” Davis’ innocence.
That’s a very high hurdle. And, in the absence of virtually indisputable evidence such as DNA (there is none in this case), it’s unlikely that Davis can meet the test.
Still, it’s important that Davis be given the opportunity. The most compelling testimony is likely to come from Tonya Johnson, who did not testify at the original trial. She has since implicated Sylvestor “Redd” Coles, the prosecution’s star witness, who came forward to tell police that Davis had pulled the trigger. But Johnson says she saw Coles, whom she feared, come running from the parking lot where MacPhail was murdered and drop two guns behind a screen door at the vacant apartment next to hers on that August night. He seemed “panicked,” she has said.
In May, 27 former justices, judges and prosecutors filed a legal brief asking the high court to let a federal judge hear Davis’ claims. Their pleas have less to do with saving Davis than with protecting the criminal justice system from error.
"Scalia: Innocence doesn't matter," is by Vincent Rossmeier at Salon.com.
Justice John Paul Stevens was joined by Justices Ruth Bader Ginsberg and Stephen G. Breyer in supporting the order to review the case. “The substantial risk of putting an innocent man to death,” Justice Stevens wrote in his opinion, “clearly provides an adequate justification for holding an evidentiary hearing.”
Scalia vehemently disagreed with Stevens. His opinion suggested a certain callousness on the question of whether the courts should care if the state puts an innocent man to death, but he was right when he said the Supreme Court has never ruled whether an individual's "actual innocence" necessitates the involvement of a federal court in a state conviction. Scalia wrote in dissent, "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.” He also said that Davis' appeal would be a “a sure loser” once it was examined again.
Earlier coverage begins here; more on the 1993 Supreme Court ruling in Herrera v. Collins, from Oyez.
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