a citizen’s journal by Thomas Nephew

No more “bites at the apple” for Troy Davis

Posted by Thomas Nephew on April 17th, 2009

Amnesty International reports:

Today, the 11th Circuit Court of Appeals denied Troy Davis’ petition to file a second habeas petition in Federal district court. The decision is here. The vote of the three-judge panel was 2-1. The Court did extend Davis’ stay of execution for 30 days to give him a chance to file a habeas corpus petition with the US Supreme Court.

Mr. Davis is convicted of murdering a Savannah policeman — but many of the witnesses have recanted, saying they were essentially badgered into identifying Davis from photospreads that that didn’t feature an alternative suspect.  There is no physical evidence linking him to the crime.  For details of the case and — if you’re convinced, as I am, that he’s innocent — a way of contacting the Georgia Board of Paroles, visit Amnesty International here.

The 11th Circuit’s decision was, Judges Dubina and Marcus argued, largely governed by the AEDPA or “Antiterrorism and Effective Death Penalty Act” of 1996.*  As Lyle Denniston of SCOTUSBlog wrote in 2005,

The 1996 law was expressly intended by Congress to sharply curtail the right of state prison inmates, under federal habeas, to challenge their state convictions and sentences. A key section of AEDPA bars a federal court from granting any habeas writ on an issue that was raised in state court, unless the state court decision “was contrary to, or involved an unreasonable application, of clearly established federal law, as determined by the Supreme Court of the United States.”

The law was passed overwhelmingly after the Oklahoma City bombing — establishing a pattern of abusing terrorist attacks for secondary purposes that was to neither Congress’s, the White House’s, the Democrats’, nor the Republicans’ credit.  As the court’s ruling noted,

…a common theme found throughout the congressional debates was the desire to prevent habeas petitioners from having successive “bites at the apple.”  See 141 Cong. Rec. S7803, S7877 (1995) (statement of Sen. Dole) (“By imposing filing deadlines on all death row inmates, and by limiting condemned killers convicted in State or Federal court to one Federal habeas petition — one bite of the apple — these landmark reforms will go a long, long way to streamline the lengthy appeals process . . . .”); 141 Cong. Rec. S16892, S16913 (1995) (statement of Sen. Feinstein) (“[T]his bill provides habeas petitioners with ‘one bite at the apple.’ It assures that no one convicted of a capital crime will be barred from seeking habeas relief in Federal court[.]”); 141 Cong. Rec. S7803, S7809 (1995) (statement of Sen. Kennedy) (“The proposal to limit inmates to one bite at the apple is sound in principle.”); 141 Cong. Rec. S7803, S7832 (1995) (statement of Sen. Biden) (“The vast majority of us . . . want to and have been trying for years to change the old system to limit the time in which a petition can be filed and to limit the number of petitions that can be filed. So essentially you get one bite out of the apple.”).

(Emphases from the world’s greatest deliberative body added.) The two justices also argue that Davis’s claim of innocence is not compelling, but revealingly lead with the notion that witness recantations themselves ‘upset the society’s interest in the finality of convictions.’ They also (unnecessarily by their own arguments, but again quite revealingly) take refuge in arguing that the substance of the recantations is insufficient to establish innocence … when the point ought to be that the constitutional, justice-driven burden ought to remain on establishing guilt — feckless 1996 legislation notwithstanding.

In her dissent, Justice Barkett sees it differently:

Simply put, the issue is whether Troy Anthony Davis may be lawfully executed when no court has ever conducted a hearing to assess the reliability of the score of affidavits that, if reliable, would satisfy the “threshold showing” for “a truly persuasive demonstration of actual innocence,” thus entitling Davis to habeas relief.  [...]

The majority takes the position that we cannot permit Davis to bring his evidence before the district court because our discretion to do so is constrained by AEDPA. But AEDPA cannot possibly be applied when to do so would offend the Constitution and the fundamental concept of justice that an innocent man should not be executed. [...]

(Emphasis added.)  As that last sentence suggests, the stakes could not be higher for all of us in this case, not “just” a black man in Georgia accused of killing a policeman.  We, the people of the United States, are reduced to watching a lone circuit court justice lose an argument with two colleagues

  • that a claim of innocence is cognizable constitutional claim,
  • that the Constitution forbids the execution of an actually innocent person, and
  • that habeas relief must be available to an actually innocent person.

If you think in your innocence — so to speak — that those propositions are the law of the land, think again, and start paying attention to this case. Troy Davis’s execution is stayed for 30 days to allow him to appeal to the Supreme Court. But that court has already sent back the case to the Circuit Court once. I’m afraid Troy Davis is not long for this world — and thereafter, nor are the claims of fairness over finality in our legal and judicial systems.

* Text of AEDPA here (.PDF, 107!! pages); the relevant US code involved in today’s ruling is § 2244. Finality of determination.

One Response to “No more “bites at the apple” for Troy Davis”

  1. » Blog Archive » The horse sings: In re Troy Anthony Davis Says:

    [...] penalty in Georgia for the murder of a Savannah policeman that he may well not have committed, gets another bite at the apple after all.  The New York Times reported yesterday that the Supreme Court ordered a federal trial [...]

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