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.