The horse sings: In re Troy Anthony Davis
Posted by Thomas Nephew on August 19th, 2009
As Nell mentions in a comment at the prior post, there’s great and surprising news: Troy Davis, who faces the death 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 court to consider Davis’s case, with a view to “whether new evidence clearly established Mr. Davis’s innocence.”
This site, many others (especially Mick Arran’s), and Amnesty International have all rehearsed the grounds to believe that Davis is innocent — in the colloquial sense — of the crime he was convicted for. Seven of nine witnesses against him have recanted their testimony, citing police pressure to identify Davis as the killer; one of the other two is a prime alternative suspect; no physical evidence ties Davis to the murder.
What seems to be at issue is whether this amounts to enough to reconsider (let alone overturn) the verdict of a criminal trial. But what is really at issue is whether Congress can force the judicial branch — in this case, through the 1996 “Antiterrorism and Effective Death Penalty Act” (AEDPA) — to blindly follow its rules in determining that, or instead hold…
- 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.
…to re-list my own summary of the issues dissenting judge Rosemary Barkett identified in the last hearing of this case. While overturning a guilty verdict reached via due process is and should be difficult to do, it seems to me ignoring the all but complete collapse of a case should be difficult to do as well — even after a verdict.
To repeat the charge to the district court, the Supreme Court ruling states that “[t]he 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” (emphases added).
It seems to me this is a more hopeful situation than either Mick Arran or Robert (in another comment at the prior post) suppose it to be. While the framing of the question would seem to turn the usual presumption of innocence on its head (as Robert notes), it at least doesn’t necessarily change the definition of legal innocence, which remains “guilt not proven beyond a reasonable doubt.”
On that score, Mick suggests that “[w]hether a new trial will be granted, then, rests on whether or not the judge will consider the recantation of potentially perjured testimony on the part of witnesses coerced by police to be “new evidence”.” But while Mick is right that “the only new evidence is that the old evidence was bogus,” … that might be good enough. That’s because the Court didn’t actually ask for “new” evidence, it asked for evidence that couldn’t have been obtained at the time; absent mind reading skills, of course perjured testimony can’t be recognized as such at the time.
So it seems to me a district court may reasonably follow this decision’s instructions and find that seven of nine pillars of the prosecution’s case have been washed away, establishing reasonable doubt and legal innocence; the Court seems to emphasize that in this case, at least, it is incorrect to “[assume] as a matter of fact that petitioner Davis is guilty of the murder of Officer MacPhail … even though seven of the State’s key witnesses have recanted their trial testimony.” But enough of my Perry Mason impression. For better informed analyses of the legal implications, see publius and Lee Kovarsky (at ‘Obsidian Wings’), bmaz (at ‘emptywheel’), Josh Patashnik at The New Republic, and/or Lyle Denniston (at ‘SCOTUSBlog’).
A couple of final observations: I’m not familiar with such things, but the structure of the decision seems unusual to me in that (after leading with the decision and instructions to the district court), the body actually leads with a rebuttal to a dissent by Justice Scalia: “JUSTICE SCALIA’s dissent is wrong in two respects. First, he assumes as a matter of fact that petitioner Davis is guilty of the murder of Officer MacPhail. He does this even though…” I wonder if this decision began its life as a dissent, and something in it brought either Alito or Roberts aboard (possibly even both).
That something may have been Stevens’s own admirably concise writing, or his reference to Judge Rosemary Barkett’s stirring dissent back in April (which I read and recommend), apparently one of many decrying the AEDPA in general and the intolerable likelihood of executing an innocent person such as Troy Davis in particular. The Barkett dissent is alluded to a few words later:“no court,” state or federal, “has ever conducted a hearing to assess the reliability of the score of [postconviction] affidavits that, if reliable, would satisfy the threshold showing for a truly persuasive demonstration of actual innocence,” 565 F. 3d 810, 827 (CA11 2009) (Barkett, J., dissenting) …”
I wouldn’t have thought it possible a week ago, but I think Troy Davis may well get a new trial, and may be found not guilty soon thereafter. At least I can hope it. The title of this post alludes to one of my favorite little fables:
[A] thief who was caught at his thievery [was] sentenced by the laws of his land to be executed. As he was being taken away so that the sentence could be carried out, he managed to gain the attention of the king and made a bargain with him. The bargain was this: in one year he would teach the king’s favorite horse to sing hymns. The other prisoners watched the thief singing to the horse day after day and laughed at him. “You will not succeed,” they told him, “no one can.” To which the thief replied, “I have a year and who knows what might happen in that time. The king might die. The horse might die. I might die. And maybe the horse will learn to sing.”
Category: Post. Tags: aedpa, death penalty, troy davis.
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August 20th, 2009 at 1:26 pm
[...] 20, 2009 · Leave a Comment Thomas Nephew at newsrack thinks there may be more hope in the Supreme Court’s language than I do, and he has a point. [...]
August 20th, 2009 at 1:35 pm
I thought your post was pungent enough (as usual) to justify a reply, and it went on longer than a comment ought to be so once again an attempt to comment here turns instead into a new blog post. It’s here if you want to read the whole thing but what it boils down to is that I don’t disagree with you legally. Politically, however, it’s a whole different ballgame and much less optimistic than a decision based on rational legal reasoning would be. Not to put too fine a point on it, Georgia’s legal eagles aren’t particularly rational, not about the Davis case at ant rate.
August 21st, 2009 at 10:41 am
You make good points — politically, it sounds like an uphill battle in Georgia, though there’s also been interested and sympathetic coverage there. I also now wonder about the strength of one of my own points. Like the amateur I am, I may have been doing some wishful thinking about “innocent” vs. “not guilty.” Though I think the evidence of false testimony still ought to be admissible under the Supreme Court’s instructions, it might not suffice for the District Court to direct a new trial, given the remaining 1 (or 2) witnesses against Davis.
August 21st, 2009 at 10:42 am
Incidentally, I’m writing from an Internet cafe in Maine — if I don’t respond to comments, it’s because I’m not on the net as often for the next week or so.