On March 28, 2011, the U.S. Supreme Court rejected three separate requests for further legal review of the death penalty case of Troy Anthony Davis. This may mark the end of the road for Davis, whose so-called “original writ” habeas corpus petition in the Court caused quite a legal stir a couple of years ago.
Troy Davis was convicted and sentenced to death for the 1989 shooting murder of Mark Allen MacPhail, an off-duty police officer who tried to rescue a homeless man from a pistol-whipping in the parking lot of a Burger King in Savannah, Georgia. From the beginning, the case against Davis relied entirely on the testimony of nine witnesses – no physical evidence directly linked Davis to the crime, and the murder weapon was never found. The murder occurred near 1 AM, and several of the witnesses were far from the scene of the crime. Others were of people of dubious character with good reasons to lie – including Sylvester “Redd” Coles, who had been seen arguing with the homeless man, and who also admitted that he was carrying a pistol earlier that night. Seven of the nine witnesses later recanted key portions of their testimony; several new witnesses later implicated Coles, and not Davis, as the real murderer.
Davis has always maintained his actual innocence. He has already managed to survive three execution dates; in 2008, he was within two hours of being executed when the proceedings were stayed temporarily by the Supreme Court. Eventually, however, all of Davis’s state-court challenges, as well as his habeas corpus petition in federal court under 28 U.S.C. §2254, were denied; the Supreme Court declined certiorari review.
Then, in May 2009, Davis filed an exceptional habeas corpus petition directly with the Supreme Court, pursuant to 28 U.S.C. §2241. This petition, called an “original writ” petition, sought to invoke the discretionary habeas jurisdiction that has been assumed to inhere in the Supreme Court ever since the Framing. No such petition had been acted upon favorably by the Court for almost 50 years. Yet on August 17, 2009, instead of the usual routine denial of the petition, the Court instead issued an order that sent reporters (and habeas scholars) into high gear:
“The petition for a writ of habeas corpus is transferred to the United States District Court for the Southern District of Georgia for hearing and determination. The District Court should 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 Scalia dissented. He described the order as “a confusing exercise that can serve no purpose except to delay the State’s execution of its lawful criminal judgment.” Scalia noted that Davis’s trial was “untainted by constitutional defect” and asserted that, even if the district court found Davis’s new evidence of “actual innocence” persuasive, “it would have no power to grant relief.” According to Scalia:
“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. . . . Today, without explanation and without any meaningful guidance, this Court sends the District Court for the Southern District of Georgia on a fool’s errand. . . . If this Court thinks it possible that capital convictions obtained in full compliance with the law can never be final, but are always subject to being set aside by federal courts for the reason of ‘actual innocence,’ it should set this case on our own docket so that we can (if necessary) resolve that question.”
As it turns out, Justice Scalia had little to worry about. The district court held a hearing, reconsidered Davis’s new evidence of actual innocence, and – on August 24, 2010 – concluded that Davis “has failed to prove his innocence.” According to the district court:
“Ultimately, while Mr. Davis’s new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors. The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value.”
The district court therefore denied Davis’s petition for writ of habeas corpus. (Part 1 of the lengthy two-part order appears here; Part 2 is here.) And that’s the denial that the Supreme Court, on March 28, 2011, declined to review.
While this might turn out to be the end of the line for Troy Anthony Davis, it is hardly the end of the line for the issue of actual innocence that Justice Scalia essentially dared the Supreme Court to decide. And Scalia is dead right – the Court has been dancing around the issue of actual innocence, as a potential “stand-alone” constitutional claim, for more than 20 years – dating back to the 1989 Herrera decision. (See my previous blog post about the issue here.)
The very fact that the Court issued its extraordinary order, sending the “original writ” petition of Troy Anthony Davis to the district court for a hearing, demonstrates that concern among the Justices about “actual innocence” claims – especially in capital cases – remains high. So, too, does legitimate public concern about mistaken convictions – the DNA revolution, the many exonerations brought about by Innocence Projects around the country, and the enormous controversy over erroneous convictions that led to the recent abolition of the Illinois death penalty have all helped fuel such concern.
But if the concern is so great, then why does the Court continue to avoid every possible opportunity – including Herrera, House v. Bell, Osborne, Skinner, and now the Troy Davis case – to grapple with the tough question whether substantial “actual innocence” claims should be cognizable, without more, under the Constitution? This question deserves an answer.