Supreme Court orders a hearing for Troy Davis
(Cross-posted from Blog for Democracy)
Today the Supreme Court shocked nearly everyone by granting relief on a direct habeas corpus petition for the first time in 50 years. The Court ordered that the U.S. District Court for the Southern District of Georgia hold an evidentiary hearing on Troy Davis' claim that he is actually innocent of the murder for which he was convicted and sentenced to death. This means that for the first time a trial court will actually be able to hear the live testimony of those seven recanting witnesses, rather than trying to decide their credibility based solely upon affidavits. For the last three years, all that I and the others fighting for Davis have asked for is that the evidence of his innocence be reviewed in open court. It will finally happen.
Justice Stevens' concurrence explaining the rationale for the decision is here, while Justice Scalia's somewhat nasty dissent is here. But the two competing opinions essentially boil down to this: Stevens and those who voted to order the evidentiary hearing believe it is essential to prevent a potentially innocent man from being executed. Scalia thinks execution of an innocent man is not a constitutional problem, as long as he got a trial and appeal. I suspect that fundamental ideological dispute will eventually have to be resolved by the SCOTUS in a future appeal of this case, but for now Davis will get his day in court and his execution by the State of Georgia will be stayed indefinitely. It is a good day.
Update: SCOTUSBlog has a comprehensive writeup about the decision that includes the interesting news that 5 justices had to vote to issue this Order. Generally 5 votes are needed for a decision but only 4 are needed to grant Certiorari to hear a case, so I had been wondering if this Order required 4 or 5 votes. Given that Stevens, Ginsburg and Breyer concurred while Scalia and Thomas dissented, with Sotomayor not taking part in the vote, that means that 2 out of the 3 silent justices (Kennedy, Roberts and Alito) must have supported granting the evidentiary hearing. Kennedy would not be a surprise, but both Roberts and Alito have been fairly tough law and order types during their tenures on the bench, so neither one seems an obvious choice to grant such extraordinary relief. However, if I had to guess I would say Alito was the fifth vote. He probably felt that there was no harm to letting a Court actually examine the evidence, particularly if there's a good chance that the evidentiary hearing still will not end with Davis being set free.
5 comments:
I read Scalia's dissent and am a little confused. As a non-lawyer, it didn't read to me as particularly nasty - minus the snide footnote declaring some of Steven's arguments as beneath comment. It also didn't appear to me that his point was that execution of an innocent man isn't a constitutional problem but rather that the district court really couldn't do anything about the problem - if there is one - and that the SCOTUS should just take on the issue itself, if review is truly necessary. Which is what you're predicting will happen, right?
What am I missing?
Oh and please ignore the Steven's v. Stevens' typo - curses to all people with pre-plural names.
It's probably just a matter of me being more familiar with what Scalia has said in other cases in the topic, so when he cites to those cases I can tell what he is getting at.
But he also specifically said:
“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 then cited several cases, including Herrera v. Collins in which Scalia wrote in concurrence that the execution of the "actually innocent" is not a Constitutional violation sufficient to support a habeas corpus petition.
As for the tone, maybe it just read as particularly disdainful to me because he was so pointed towards Stevens, and because dissents from this sort of Order are fairly rare.
But you are right, I think the Supreme Court will end up with this issue back in its hands. I believe that Stevens et al want to have a full factual record on the evidence of actual innocence before them when the dispute does arise. If they were to take the case now, the facts of those recanting witnesses would potentially not properly be before the Court because they have never been made a part of the lower court record. While the 11th Circuit and the Georgia Supreme Court have referred to the affidavits, etc. they have specifically cited the strange procedural posture in which these recantations occurred. By ordering an evidentiary hearing, essentially the reviewing appellate courts and SCOTUS will have a full factual record similar to a trial with transcripts of testimony and the ability for the prosecution to cross-examine the recanting witnesses, etc.
There is an open question whether the District Court can order habeas relief in this case. It is not as cut and dried as Scalia makes it out to be. But even if the district court decides after the evidentiary hearing that it can't order relief, it will have grown the factual record for appeal, which is still important.
Oh. :)
http://savannahnow.com/node/769584
today is the 20th anniversary of the murder
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