Results matching “troy davis”

CNN has this story:

For the Georgia prosecutor who put Troy Davis on trial in 1991 for killing a cop and won a conviction, there were two cases being fought.

"There is the legal case, the case in court, and the public relations case," Spencer Lawton, the former Chatham County prosecutor, said. "We have consistently won the case as it has been presented in court. We have consistently lost the case as it has been presented in the public realm, on TV and elsewhere."

The Troy Davis controversy continues, as the Georgia Board of Pardons and Paroles denied clemency.

The most important document in this case is the opinion of the US District Court following the transfer from the Supreme Court and the evidentiary hearing.  To make this more accessible to the public, I have created an excerpt with links to the full opinion.

The Atlanta Post reports, "A Chatham County judge on Tuesday signed a death warrant for Troy Anthony Davis, who was convicted of killing a Savannah police officer in 1989.  The warrant sets the execution between Sept. 21 and Sept. 28. The state Department of Corrections will set the actual date. Davis has been on death row for 19 years."

Davis's claim of actual innocence resulted in a highly unusual order from the US Supreme Court, describe in this post, sending the case to a District Court to determine that claim.  Upon full hearing, the District Court found an inconvenient truth: "Mr. Davis is not innocent."  Well, inconvenient for Davis and his supporters.

With that out of the way, higher courts declined further review of a case that had already run the full gamut of reviews and then some.  This post from March describes the later action.

William Baude of Robbins, Russell has this article on SSRN on the actual innocence problem, with particular reference to the Troy Davis case.  His bottom line is that judges should not stretch existing procedures, thereby exceeding the limits of their legitimate authority.  Rather, legislatures should adjust the procedures to take better account of importance of actual innocence.

I have come to a similar conclusion in many years of litigating AEDPA.  AEPDA was a hammered-out compromise and therefore nobody's idea of an optimum solution.  It had many problems as a result.  The biggest deficiency, in my view, is that Congress cracked down too hard on the very few habeas petitioners with substantial claims of real "got the wrong guy" innocence and not hard enough on the much larger number who merely contest the sentencer's discretionary choice of sentence within the legal range for their crime.

From the 2006 election to the present, I have been content that Congress do nothing on habeas, given the grave danger that they would enact legislation moving in the wrong direction.  If the balance shifts a bit further in the next election in the same direction as the last, it may be safe to go in the water again.  We could make an actual innocence exception to the statute of limitations to match the one in the successive petition rule.  We could even make a substantive actual innocence ground of relief in capital cases.  In return, review of sentencing claims already decided by the state courts should be boosted from the present so-called "deference" standard to the Stone v. Powell rule used for Fourth Amendment claims.

Once more, with feeling, "actual innocence" in this context means "got the wrong guy."  It does not mean that the defense team dredges up a psychiatric prostitute who will swear the defendant couldn't have formed intent because he had consumed too much alcohol, sugar, or whatever.  See page 29 of CJLF's brief in Maples v. Thomas.

John Elwood at the Volokh Conspiracy points us to certpool.com, a website that tracks certiorari petitions in the United States Supreme Court.  Very cool.

As John notes, the certiorari docket isn't the whole docket.  It is, however, the source of almost all SCOTUS cases of interest in criminal law.  The exceptions are:

1.  The original docket.  Historically, this has mostly been states suing each other about water-related issues:  boundary disputes over shifting river channels, fights over the water itself (e.g., Arizona v. California, a real case that lasted longer than Dickens's fictional Jarndyce v. Jarndyce), and submerged minerals.  Zzzzzz.

Post-AEDPA, we also have a lot of death row inmates trying original habeas petitions.  Only two have gotten real action -- Felker right out of the gate in 1996 and Troy Davis in 2009 -- but those two were big news.

2.  Appeals from three-judge courts.  For a very few cases near and dear to the hearts of congressmen, we still have ye olde system of a three-judge trial court with a direct appeal to the U.S. Supreme Court.  Most common of these are reapportionment cases.  However, under the Prison Litigation Reform Act, prisoner release orders are also three-judge court cases, and that is the path that gave us the disastrous Brown v. Plata.

Every once in a while, a petitioner comes to the Supreme Court with a tale of outrageous injustice that cries out for relief, but none is available under current law.  Then when the Court learns the truth about the facts of the case the difficult question of law vanishes.  Almost 20 years ago, we had the cause celebre of Leonel Herrera, the man those barbarians in Texas were going to execute despite compelling proof of his innocence.  The inconvenient truth was that Herrera was guilty as sin.  More recently, we have had the Troy Davis case along similar lines.

Now we have the Kiyemba case, innocent people being held indefinitely by our cruel government in Gitmo.  One small problem -- our government has offered to place them in a suitable country, and they haven't accepted the offer.  Justice Breyer's statement today follows the jump.

As so often happens, today's US Supreme Court decision in Cullen v. Pinholster resolves an important question but leaves others unanswered.

Let us take the decision first.  In the language of the statute every federal habeas lawyer knows by heart, a claim rejected on the merits by the state court cannot be the basis for federal habeas relief "unless the adjudication of the claim --

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

The term "application" in paragraph (1) refers to application of the rule of law established in a Supreme Court precedent to particular facts.  What facts?  "It would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court."

Certainly this is important in terms of having the case decided with proper respect for the state court decision.  Will it also reduce the present egregious delays in capital cases?  It should.

In August 2009, the US Supreme Court took the rare step of transferring an original habeas petition to the District Court.  "Original," in this sense, means that the habeas petition was filed directly in the Supreme Court, as opposed to the usual practice of filing the petition in the District Court and appealing up the chain.

The petitioner was Troy Davis, and the Court's action is described in this post.  Davis claims he is innocent of the crime for which he was sentenced to death, and he has a chorus of supporters.

The Court's action raised a lot of unsettled questions about how the restrictions in the Antiterrorism and Effective Death Penalty Act of 1996 apply to original petitions in the Supreme Court.  There are also issues about whether a strong claim of actual innocence by a death-sentenced inmate might render some of those restrictions unconstitutional as applied.  After the District Court denied the petition, there were further issues as to how that decision might be reviewed.

I noted in that prior post:

I suspect the swing votes on the Court are hoping the District Court comes to the same conclusion as the Georgia Board of Pardons and Paroles [that Davis is truly guilty] but, unlike that board, writes a thorough explanation of why. Then the case can go the way of Herrera [v. Collins, 506 U.S. 390 (1993).]

That is what happened.  A year after the transfer order, as noted in this post, the District Court found "Mr. Davis is not innocent."

Today, the high court denied three attempts to seek further review: No. 10-950, a purported direct appeal from the District Court, is "dismissed," along with denial of a habeas petition and "common law writ of certiorari."  In No. 10-949, the Court denies certiorari, declining to review the Eleventh Circuit's decision.  In No. 08-1443, the Court denies the same original habeas petition it transferred to the District Court in the first place.

What do these unexplained orders tell us about habeas procedure in such cases?  Not much.  The facts have trumped procedure in this case.  Troy Davis is guilty, so the Court is not going to use the case to tell us what happens in cases of actual innocence.

Update:  Lyle Denniston has this post at SCOTUSblog.  He notes there were no dissents to any of today's orders.

SCOTUSblog's "Petitions to Watch" list for tomorrow's US Supreme Court conference is here.  Among the cases listed is the very interesting Stoval v. Miller, 10-851.

Under 28 U.S.C. §2254(d)(1), a federal court can overturn a state court decision on habeas corpus if it is "contrary to, or was an unreasonable application of, clearly established Federal law, as determined by the Supreme Court ...."

What happens if (1) an intermediate state appellate court correctly applies US Supreme Court precedent, then (2) the US Supreme Court overrules that precedent and substitutes an entirely different rule, and then (3) the state supreme court denies discretionary review?  Neither state court decision can be fairly said to be contrary to US Supreme Court precedent at the time of the decision.  Appellate courts are not expected to be clairvoyant, and state high courts are not required to grant discretionary review for error correction.  Still, the change occurred while the case was still in the state court system.  The pre-AEDPA Teague doctrine would have applied the new rule in this circumstance.

The underlying substantive question is what constitutes a "testimonial" statement for the purpose of Crawford v. Washington's revamped version of the Confrontation Clause.  How about the suicide note of the defendant's co-conspirator and triggerman?  I'll bet Justice Scalia will say yes, and Justice Thomas will say no.  Not sure about the others.

Also on the list are two petitions by cause celebre Troy Davis, whose "actual innocence" case is now significantly handicapped by a District Court finding of fact that "Mr. Davis is not innocent."

Police Seek Shooting Suspect in Oregon:  Nigel Duara of the Associated Press reports that David Anthony Durham, 43, is suspected of shooting Lincoln City Police Officer Steven Dodds during a traffic stop before fleeing into the nearby woods.  Durham's records show a 1999 misdemeanor prostitution charge and citations for speeding in 2000.  According to family and friends, he had been acting strangely since he and his girlfriend ended their relationship.  Local schools have been closed while police search for the suspected shooter.

Troy Davis Seeks Another High Court Appeal:  The Associated Press reports that Georgia death row inmate Troy Anthony Davis is asking the Supreme Court to overrule a federal judge's decision that the additional evidence presented by Davis was not sufficient to disprove his guilt for murdering a police officer.  In 2009, the Supreme Court granted Davis' request for a hearing to review new evidence he claimed proved he was wrongly convicted of shooting Savannah Police Officer Mark MacPhail in 1989.  Eyewitnesses identified Davis as the shooter, but there was no physical evidence linking him to the crime.  His defense now argues that the federal judge denied them the opportunity to present witnesses who would have identified someone else as the murderer.  Since 2007, Davis has been spared from execution three times, and has become a cause-celebre among death penalty opponents.

Georgia Murderer Facing Execution:  Rhonda Cook of the Atlanta Journal Constitution reports how 27-year-old fitness instructor Julie Love's disappearance in 1988 received national attention after she ran out of gas and decided to walk home.  Now almost 23 years later, Emmanuel Fitzgerald Hammond is awaiting execution for Love's murder. Hammond, with his cousin and girlfriend, spotted Love as she was walking along a street in the Buckhead district, and asked Love if she needed a ride.  When she refused, Hammond got out of the car and hit her over the head.  After his cousin raped her, Hammond shot Love in the face with a shotgun and dumped her body.  Love was missing for over a year until Hammond's girlfriend, Janice Weldon, led investigators to her body.  Hammond is scheduled to die by lethal injection today. 

Florida looks to Texas for Advice on Cutting Prison Costs:  Bill Kaczor of the Associated Press reports that Florida is looking to Texas for help in cutting prison costs without appearing to be lenient on crime.  In 2007, Texas's strategy of putting low risk, non-violent offenders on probation and parole and providing rehabilitation programs in certain cases saved the state $2 billion in prison costs.

Those of you who follow Doug Berman's entertaining Sentencing Law and Policy will see that a hue and cry is being raised about the Davis opinion.  This was to be expected.  As I have noted there:

The abolitionist refrain about Troy Davis's "innocence" is identical in its shrill, superior and indignant character to the same claim they made about Roger Keith Coleman. And it's identical in one other respect as well, to wit, it's identically false.

Let's face it. Troy Davis's "innocence" was, in the abolitionist eye, never going to be a product of evidence. The district court's opinion could have gone on for 1000 pages and it would have made no difference. Davis's "innocence" has become an urban myth of the abolitionist Left, much in the way that George Bush's "complicity" in arranging the 9-11 attacks has become a Leftist myth. Davis's innocence must be assumed, no matter what the balance of the evidence or the care taken to parse it, because that assumption is the necessary predicate to slam the United States as a rogue country that willy-nilly executes people for the fun of it, especially if they're black.

This mindset is related to, though not exactly the same as, the one that insists OJ didn't do it. OJ was acquitted (by the criminal jury, although not the civil one), so he's not an adjudicated murderer, no doubt about that.  But is he the guy who stuck in the knife? No serious person -- except those who're serious about hating the country -- thinks he wasn't.

Again, to a certain turn of mind, these episodes have long since stopped being cases and started being icons. They are the Religion of the Left. That's the reason debates with abolitionists go nowhere. You can argue facts, but you can't argue religion.

Bill Rankin reports in the Atlanta Journal-Constitution:

A federal judge on Tuesday emphatically rejected condemned inmate Troy Anthony Davis' claims that he was wrongly convicted of killing a Savannah Police officer in 1989.

In a 174-page order, U.S. District Judge William T. Moore Jr. said Davis had failed to prove his innocence during an extraordinary hearing this summer ordered by the U.S. Supreme Court.

"Ultimately, while Mr. Davis' new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors," Moore wrote. "The vast majority of the evidence at trial remains largely intact, and the new evidence is largely not credible or lacking in probative value."

*                                    *                               *

Moore did answer one question posed by the U.S. Supreme Court. He found that executing an innocent person would violate the Eighth Amendment's ban against cruel and unusual punishment.

"However, Mr. Davis is not innocent," Moore wrote.

For those who have been around the death penalty debate for a while, there is a sense of deja vu about all this. Eighteen years ago, the Supreme Court took up the case of Herrera v. Collins, 506 U.S. 390 to address the monumental question of whether a strong case of actual innocence was sufficient to block an execution, even though there was no claim that any violation of federal law or the Constitution occurred in the the trial. Once they got their hands on the case, though, the Supreme Court discovered an inconvenient truth: Herrera was guilty as sin. "Oh, never mind."

Homebuyer Tax Credit for Inmates:  As noted in Steve Erickson's post earlier today, over the past year our government gave about $9 million of your money in the form of homebuyer tax credits to 1,295 prison inmates, including 241 who are serving life terms.  AP writer Stephen Ohlemacher reports that an Inspector General at the Treasury Department found that roughly 14,100 people fraudulently took $27.7 million in tax credits as first-time homebuyers, in one case 67 people took the credit for supposedly buying the same home.  None of the inmates took the credit on a joint return, eliminating the chance that a spouse actually did purchase a home. 

Innocence Hearing in Davis Case:  The U.S. District Court in Savannah heard argument and reviewed evidence today from attorneys representing condemned cop-killer Troy Anthony Davis.  Last August the U.S. Supreme Court ordered the lower court to hear Davis' claims that he did not murder Savannah police officer Mark Allen MacPhail in a Burger King parking lot 29 years ago.  A story by Bill Rankin in today's Atlanta Journal Constitution reports that for the hearing the high court required that the evidence presented  "clearly establish" Davis' innocence.  In his dissent to the order, joined by Justice Thomas, Justice Scalia called the hearing a "fools errand" because Davis' innocence claim is "a sure loser."  Anti-death penalty groups have been holding vigils in Savannah and Atlanta in support of Davis.  For the record, Officer MacPhail, the 27-year-old father of two, was off duty when he heard cries from a homeless man being pistol whipped in a Burger King parking lot.  As MacPhail ran to the victim's aid, he was shot three times by a man identified by witnesses and other evidence as Davis.

Habeas corpus petitions filed directly in the U.S. Supreme Court -- as opposed to asking them to review denial of a petition by a lower court -- used to be a zero-chance proposition. After the Troy Davis case, discussed here, we can't say it's zero any more. It's almost zero. The Court today denied the original habeas petition of Khristian Oliver. Michael Graczyk has this story on the execution for AP.

For more background, there is this story yesterday by Christy Wooten in the Nacogdoches Daily Sentinel.

Anticipating a Decision in Arkansas' Lethal Injection Case: Four Arkansas death row inmates, Don William Davis, Jack Harold Jones Jr., Terrick Nooner, and Frank Williams Jr., are challenging the constitutionality of Arkansas lethal injection process.  Associated Press writer Jim Salter reports that an attorney for the four inmates argued to the Eighth Circuit Court of Appeals that even with the new methods in place, the state's lethal injection procedure can cause pain and suffering. (oral arguments found here)  After last years Supreme Court ruling in Baze v. Rees, opinion found here, Arkansas prison officials introduced thorough procedures, to ensure that the inmates do not suffer.  Arkansas is not the only state that has legal challenges involving lethal injections.  A lawsuit in Missouri claims that Missouri cannot carry out lethal injection procedures correctly.  Reginald Clemons execution was scheduled for June, but the Eighth Circuit granted an indefinite stay without giving a reason.  Other death penalty states are waiting for the outcome of this case.  It is not expected for weeks.

Most Wanted Fugitive Steals Video Games: Lee County's most wanted fugitive, Daniel Larson, 32, was caught after allegedly trying to stealing about $120 worth of Nintendo DS games from Walmart.  Fort Meyers, Florida News-Press writer Evangelia Ganosellis reports on Larson's attempted theft to support his 15-year-old heroin habit.  Larson has an long criminal history including his 1999 and 2004 convictions for armed robbery with a deadly weapon, and his 1999 conviction for kidnapping.  Larson's criminal history has landed him on Lee County's most wanted list.  Before Larson's attempt to steal video games, he was arrested September 5 on larceny charges, but used a fake ID to secure his release.  Sgt. David Velez said that "if you got arrested tomorrow, you could say 'Wilma Flintstones,' and we'd book you under that name."  Larson faces charges of violating pretrial supervision, larceny, resisting a property recovery retail merchant, using a false identification that adversely affects others, forgery of a public record certificate, and violating parole.   

DNA Advancements Brings Hope To Rape Victim: The FBI's Child Abduction Rapid Deployment (CARD) has picked up the 19-year-old rape and abduction case of Jennifer Schuett.  It hopes to retest DNA evidence that was considered too small to test before.  CNN writer Mayra Cuevas-Nazario reports on a young woman's story of survival after she was abducted from her Dickson, Texas apartment on August 10, 1990, raped and left for dead.  Part of the reason that CARD picked Schuett's case is that she survived.  FBI Special Agent Richard Rennison says, "[t]his is the only [case] that I can think of that the victim has suffered some traumatic injuries and survived."  Investigators gathered evidence from the field where Schuett was found 19 years ago.  It includes, the underwear and pajamas Schuett was wearing, as well as a man's underwear and T-shirt.  In 1990, the clothes were tested, but the sample was to small to get conclusive results.  Once the FBI gets the DNA results back, they will run it through their database to see if they can find a match.  The FBI is offering a $10,000 reward for information leading to a break in the case.

Homeless Sex Offender Challenges Alabama Law: Part of an Alabama state law, requiring sex offenders to give a verifiable address to be released from prison, was struck down as unconstitutional by a Montgomery Circuit Court.  Montgomery Advertiser writer Markeshia Ricks reports that several homeless sex offenders have sought to have their charges for non-compliance with the law dismissed as violating their rights.  The law at issue is the Alabama Community Notification Act, which requires incarcerated sex offenders to provide a verifiable address of where they will be for 45 days after their release.  If they do not comply, the offender is immediately taken to county jail.  Attorney General Troy King says that the law is very broad, they could give the address of a park bench if they wanted.  He does not believe that being homeless is a good reason to make a sex offender exempt from the law.  Over the past few years, Alabama passed a lot tougher sex offender laws because it had become a safe haven for sex offenders.  Sheriff D.T. Marshall says that he is fine with the tougher laws for sex offenders, but along with passing the laws, the state should provide the funding to enforce them.  Law enforcement currently doesn't have the man power or the funding to keep up. King knew that there would be legal challenges when his office started pursuing tougher sex offender law laws, but "It comes down to the protection and safety of the children of Alabama," he says.           
 

During the debate over the nomination of Sonia Sotomayor to the Supreme Court, we reviewed her AEPDA opinions and noted them to be generally thoughtful and balanced. However, we cautioned that she had nearly zero record on the death penalty as a judge, and that her signature on a repugnant PRLDEF memo was a concern.

Right out of the gate, Justice Sotomayor joined the dissent when the Supreme Court denied a stay to Jason Getsy. This is not good. Unlike the Troy Davis case, which got the headlines recently, there is no doubt that Getsy is guilty as sin of murder for hire. There is no good reason to stay his execution. The claim that there is something unconstitutional about the fact that the man who hired him got off for less -- as a result of Confrontation Clause limits on evidence in the latter's trial -- should not make any person of sense even pause. Ohio's lethal injection procedure is as good as the one upheld in Baze v. Rees. (Maybe better -- the Ohio team has had more practice.)

Curiously, while four justices dissent from the denial of a stay, no dissent is noted from the denial of certiorari. Under the "rule of four," the four stay-dissenters could have granted certiorari, and one of the others probably would then have provided the fifth vote for a stay. Kind of odd, but no explanation is given.

David Savage has this article in the LA Times. Jesse Holland reports for AP.

Update: Long-overdue justice in this case was finally carried out at 10:29 EDT. AP story is here. 

Update 2: This follow-up AP story by Andrew Welsh-Huggins describes the execution, noting that a check for consciousness and rechecking the shunts after the first drug is part of the protocol.  The absence of those checks from the Kentucky protocol was the primary basis of Justice Ginsburg's dissent in Baze v. Rees: "Kentucky's protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs."

An "Emerging Criminal War on Sex Offenders:"  Corey Rayburn Yung maintains a blog called SexCrimes and has posted on his new SSRN article titled, The Emerging Criminal War on Sex Offenders.  Yung's article reviews America's history of criminal wars, focusing primarily on the War on Drugs, and establishes three characteristics of a criminal war: marshaling of resources, myth creation, and exception making.  He believes that federalizing sex offender policy through the Adam Walsh Act has "elevated law enforcement to a nascent criminal war on sex crimes."  Doug Berman also has a link to the article at Sentencing Law and Policy.

Serving Life in Iowa:  Yesterday, Doug Berman posted an article from the Des Moines Register on Sentencing Law and Policy.  The article, by William Petroski, details how in Iowa "life means life."  According to Petroski, and a Sentencing Project study, "Iowa is one of the most difficult states in the nation for an inmate serving a life sentence to gain release."  Petroski contributes this to the "uneasy truce over capital punishment: Iowa lawmakers have repeatedly rejected the death penalty, but only because 'life means life' for the most serious crimes...."  So, while many seek to decrease Iowa's population of lifers, Iowa continues to impose life sentences for its most heinous crimes.  Iowa's growing number of lifers are apparently part of a national trend. Throughout the United States, more than 140,000 individuals are incarcerated with life sentences.  In addition, state legislators have stepped up their fight against crime by expanding which crimes result in life sentences, restricting parole and increasing the use of life sentences without parole.  Iowa is one of six states where all life sentences are imposed without automatic provisions for parole.  Petroski writes that Iowa is considering changing the law to allow for parole.  One state representative, Clel Baudler, a Republican and retired state trooper, has said he is willing to consider the possibility of having the Legislature expand parole provisions for lifers, but only if capital punishment is included in the debate.

CrimProf is Back With a Post on Peoria's New Crime Fighting Tactic:  Thanks to Orin Kerr, Volokh Conspiracy, and Doug Berman, Sentencing Law and Policy, for alerting us to the return of CrimProf Blog, hosted by the criminal law faculty at the University of San Diego.  In one of today's posts, CrimProf links to a Wall Street Journal article by Carrie Porter, reporting on Peoria, Illinois' "new, low-budget way to fight crime."  Peoria's officers are parking the "Armadillo," an old Brinks truck covered with video cameras, in neighborhoods where drug dealing has made the area unlivable.  Officers will drive the truck to the offending house, knock on the occupants' door, and inform them that a nuisance report had been filed.  He will then leave the truck out front.  Sometimes the occupants will move out within 24 hours of Armadillo's arrival.  The Armadillo works simply because it is such an eyesore.  Jim Pasco, executive director of the National Fraternal Order of Police, states, "A police car is not a particular stigma, but if people see that thing in front of your house, they know something bad is going on in there."  More proof that public shaming can deter bad behavior....

"Don't Appoint a Special Prosecutor for CIA Interrogators:"  That's the advice of Robert Alt on NRO's Bench Memos, and the conclusion of a WebMemo by Todd F. Gaziano and Robert Alt at the Heritage Foundation.  Last Monday, the LA Times and our Blog Scan reported that Attorney General Eric Holder was expected to appoint a prosecutor to look into the alleged abuse of detainees during CIA interrogations.  Alt and Gaziano argue that the President and the Attorney General should not "pass the buck" of the criminal investigation to a special prosecutor.  Arguing for oversight and political accountability, Alt and Gaziano conclude: "[t]he Attorney General must be the one who personally authorizes any criminal investigation and subsequent trial. He, with the President, must also bear the responsibility for any direct or collateral results of such an investigation.  Additionally, the Attorney General should be directly responsible for any negative impact such an investigation and trial will have on the intelligence community and the willingness of that community to carry out all lawful acts in support of America's defense."

More Discussion on Troy Davis:  Orin Kerr discusses the Troy Davis case over at  Volokh Conspiracy.

And now, for something completely different...

The U.S. Supreme Court and its individual Justices have the jurisdiction to issue "original" writs of habeas corpus -- "original" in the sense that the petitioner applies directly to the Supreme Court for relief, as opposed to applying to a lower court and then appealing the denial.

It was settled early, in a case related to the Aaron Burr plot, that the Supreme Court can issue such writs despite the Marbury limitation if the writ is appellate in practice even though original in form. That is, if the petitioner seeks a de facto review of a decision of a court, as opposed to the unilateral decision of the executive to lock him up, then he doesn't have to fit within the very limited category of cases where the Constitution gives the Court original jurisdiction.

The Court used this jurisdiction in the nineteenth century to review cases it had no other way to review, but the power pretty much gathered dust in the twentieth century and, until today, in the twenty-first. Term after term, every Monday orders list has had one-liner denials of original habeas petitions.

Only once in the time I have been doing Supreme Court work (since 1987) has the Court seriously considered an original habeas petition and written an opinion. That was in Felker v. Turpin, 518 U.S. 651 (1996), the first case on the constitutionality of the then-brand-new Antiterrorism and Effective Death Penalty Act of 1996. The Court did not resolve whether original writs in the Supreme Court would be subject to the same restrictions Congress placed on the usual district-court application, but it said it would be guided by them nonetheless. It denied Felker's petition, and he was executed shortly thereafter.

Another issue the Court has never resolved is whether a free-standing claim of actual innocence, unconnected to any constitutional violation at the trial, states a claim for relief in federal habeas corpus. The Court considered the question in Herrera v. Collins, 506 U.S. 390 (1993), but once it took a good, hard look at the facts, it realized that Herrera's innocence claim was such complete garbage that it would have been denied under any conceivable standard.

And now comes Troy Davis.

Will Melendez-Diaz Affect Parole in Texas?: Scott Henson writes at Grits for Breakfast that a post  by R.J. MacReady at Texas Court of Criminal Appeals blog has him wondering if Melendez-Diaz v. Massachusetts could change how Texas courts view confrontation in cases involving business records and parole revocation certificates.  MacReady's post focuses on Justice Scalia's ruling that "business records that satisfy the hearsay definition of a business record aren't necessarily immune from a Confrontation Clause objection[.]"  This is a problem, because earlier this year, Smith v. Texas held that business records are not "testimonial" under Crawford v. Washington, because, in MacReady's words, they "contained sterile recitations of the fact of revocation rather than a detailed description of the cause."  MacReady and Henson both believe that the decision in Smith is suspect now that Justice Scalia has stated business records may be considered "testimonial" if they were prepared specifically for use in court.

Supreme Court Yet to Rule on Troy Davis:  Wall Street Journal Law Blogger, Ashby Jones, reports that the U.S. Supreme Court has "kicked the can" on the cert petition of death-row inmate Troy Davis.  In other words, the U.S. Supreme Court, went on summer recess without deciding whether it will consider Davis' appeal for a new trial.  The U.S. Supreme Court stayed Davis' execution last September, denied his appeal, and sent the case back to the Eleventh Circuit.  The Eleventh Circuit eventually rejected Davis' request for a new trial.  Jones reports that the Supreme Court will reconsider the appeal next fall.

Ricci May Indicate Larger Battles Ahead:  At NRO Bench Memos, Ed Whalen comments on  Stuart Taylor Jr.'s post on The Ninth Justice.  Both Whalen and Taylor believe that the Supreme Court's unanimous rejection of the Sotomayor-endorsed Second Circuit position (that disparate racial results alone justified New Haven's decision to dump the promotional exam), and the different stances taken by the Ricci's dissenters and the Second Circuit, are "important and revealing."  (Whalen's post is available here). Taylor, in particular, focuses on the different stances taken by Justice Ginsburg's dissent and the Second Circuit panel.  He writes that while both "risk converting disparate-impact law into an engine of overt discrimination against high-scoring groups across the country," Justice Ginsburg "at least required the city to produce some evidence that the test was invalid."  The Sotomayor panel did not even require that.  Taylor worries that if the Second Circuit's panel decision had been adopted by any of the Justices, the logic would "provide irresistible incentives for employers to abandon any and all tests on which disproportionate numbers of protected minorities have low scores."

When It Comes to Sentence Enhancement, Who is a Fraud Victim?:  At Sentencing Law and Policy Doug Berman provides a link to a National Law Journal article addressing the circuit courts' failure to consistently answer that very question. In the article Sheri Qualters reports that last Friday, the First Circuit held that judges should count people who are reimbursed for financial losses from criminal schemes as victims when deciding whether to increase a defendant's sentence.  The Eleventh Circuit has reached a similar conclusion.  Apparently, however, other circuit courts have decided the issue the other way.  Berman believes that the U.S. Sentencing Commission should resolve these discrepancies.  He does not believe it is necessary for the U.S. Supreme Court to take up the issue.  

Supreme Court Term Summary: Kristina Moore at SCOTUSblog posts Akin Gump annual term summary memo. The memo analyzes voting patterns of the Justices.  No surprise: Justice Kennedy cast the deciding vote in 18 of the 23 5-4 decisions.

Politics of a Judicial Nomination:  Yesterday, David Stras posted "The Politics of the Sotomayor Nomination" at SCOTUSblog to inform readers "of what they can expect from the remainder of the confirmation process..."  Stras' post provides an outlook on the nomination process that is slightly different from earlier SCOTUSblog posts.  For example, he writes, "I believe that the Ricci case could be a stumbling block for Sotomayor[,]" because race has been injected into the evaluation process, and because "racial discrimination is an issue that resonates with the American public and if the lower court decision is shown to be outside the mainstream...then it is an aspect of her jurisprudence that... will be explored during the confirmation hearings."  Joel Jacobsen also comments on the nomination at Judging Crimes.  He writes that Judge Sotomayor's experience as a trial judge is more important than her race, ethnicity or gender.

Judge Sotomayor on Crime and Race:  At Sentencing Law and Policy, Doug Berman posts on Michael Doyle's McClatchy Newspaper article that reports Judge Sotomayor is not soft on crime.  According to McClatchy News, from a sample of 90 criminal law related cases heard by Judge Sotomayor since January 2002, she has "sided with the government 65 times and prisoners and defendants 25 times."  At National Journal Online, Stuart Taylor Jr. reports on Tom Goldstein's study of  97 race-related cases that Judge Sotomayor has decided while on the Court of Appeals. While Goldstein concluded it was "absurd to say that Sotomayor allows race to infect her decisionmaking[,]" Taylor thinks "[o]thers may look at the same cases and draw different conclusions."

Bob Barr on Troy Davis:  At Volokh Conspiracy, Jonathan Adler reports on Bob Barr's Op-ed in today's New York Times.  In the Op-ed, the former Republican Representative asks the Supreme Court to grant the habeas petition of Georgia death row inmate Troy Davis.  Our recent posts on Davis can be found here, here, and here.  

The Eleventh Circuit, which had previously stayed the execution of Troy Davis in Georgia, today denied relief in this 2-1 opinion. On the question of whether Davis is actually innocent, the majority opinion says:

Davis has not presented us with a showing of innocence so compelling that we would be obliged to act today. Rather, the record, including all of the post-trial affidavits, is, at best, tortured and difficult. Indeed, the Georgia trial court and Georgia's Supreme Court have twice parsed through all of this evidence and determined that it was insufficient to establish Davis's innocence. In addition, the Georgia State Board of Pardons and Paroles held a hearing,questioning every witness Davis's attorneys presented to support their allegation that there was doubt as to Davis's guilt; studied the voluminous trial transcript, the police investigation report and the initial statements of all the witnesses; had certain physical evidence retested and Davis interviewed; and ultimately concluded that clemency was not warranted.

Our review of the record is wholly consonant with the repeated conclusions of the state courts and the Board of Pardons and Paroles. 

AP reports that the Eleventh Circuit has issued a stay in the Troy Davis case, previously discussed in these posts:

The Troy Davis Stay
Troy Davis and the Georgia Parole Board
Troy Davis Goes to SCOTUS
Residual Doubt and Commutation
AEDPA, Innocence, and the Davis case

Cooey Executed After Supreme Court Rejects Obese Argument: An article from CNN News reports that an Ohio death row inmate Richard Cooey was executed today after the Supreme Court rejected his last-minute plea that he was too fat to be executed. Cooey and a then-17-year-old accomplice were convicted of the brutal murders of Wendy Offredo and Dawn McCreery, students at the University of Akron. The students were subjected to 3½ hours of rape, torture, stabbing and fatal bludgeoning.

Supreme Court Denies Death Row Inmate Troy Davis' Appeal: Washington Post staff writers William Branigin and Jerry Markon report that today the Supreme Court refused to hear an appeal by Troy Davis facing execution for the 1989 murder of a police officer. Today's order clears the way for Georgia to proceed with the execution of Troy Davis, three weeks after the high court granted him a last-minute stay.

Sex Offenders Must Register Their Online Information: An article from the Newsday by Juliann Vachon reports that social networking sites such as MySpace and Facebook can now trace and expel potential sexual predators under a new law requiring sex offenders to submit all identifying Internet information along with home addresses. Under the law, signed yesterday by President Bush, registered sex offenders must submit all e-mail addresses, instant messenger names or other online identifiers for inclusion in the National Sex Offender Registry. Under the law, sex offenders not providing all Internet information can receive the same penalty as those who fail to register their home address - up to 10 years in prison.

Woman Found Guilty, Gets Life In Slayings Of 4: A story by Dale Lezon from the Houston Chronicle reports that although Christine Paolilla claimed her former boyfriend fired fatal gunshots at four young people five years ago, the former Clear Lake High School student from Houston, TX, was convicted of capital murder and sentenced to life in prison on Monday. Paolilla was found guilty in the deaths of her friends, Rachael Koloroutis and Tiffany Rowell, both 18; and in the killings of Rowell's boyfriend, Marcus Precella, 19; and his cousin, Adelbert Sanchez, 21. Paolilla received an automatic life sentence because she was 17 at the time of the killings.

The U.S. Supreme Court orders list is available here. One civil case was taken up. Among the denials was the controversial Georgia capital case of Troy Davis, previously noted here, here, and here.

The Blogs Are Alive With The Sound of Opening Arguments: With the first Monday in October came opening arguments at the United States Supreme Court, as well as several blog posts reporting on its activities. SCOTUSblog has a post reporting on today's activities at the Court, along with a link to today's transcripts and an analysis of oral arguments in Altria Group, et al., v. Good, et al. (07-562). Denniston also provided a post discussing today's Orders from the Court, and how the Court did not address Troy Anthony Davis’ appeal today. Dan Slater at Wall Street Journal Blog posted on the Altria argument, as well as Justice attendance an the annual Red Mass. And over at NRO, Jonathan Adler provides a preview of cases the Court will hear this term. At the end of his post Adler notes the Court has only accepted 53 cases for the term. According to Adler, the Court is likely to accept "at least a dozen or two more in the coming weeks." Without a lot of high profile cases on this year's docket, Adler reports this "is likely to be a relatively quiet year on the Court."

The Pace of Executions Post-Baze: Doug Berman has a post discussing the Death Penalty Information Center's (DPIC) report on executions in the United States after last term's decision in Baze v. Rees. Berman finds it "remarkable" that post-Baze states have executed prisoners at an average rate of about four executions per month, and "that we have not seen any post-Baze increase in executions even though the Baze case led to a halt of all executions for over six months." Berman's post also states that the DPIC report shows only Texas and Ohio with more than one upcoming set execution date.

Free Access to Sage Journals: Psychology and Crime News reports that Sage Journals will provide free access to all of its online journals through October 31st. All a reader needs to do is register first. Psychology and Crime News recommends that readers take a look at the newest issue of Criminal Justice and Behavior a special on “Pseudoscientific Policing Practices and Beliefs" for articles on criminal profiling, as well as a "critique of the FBI’s programme to introduce Critical Incident Stress Debriefing for its agents."

Last week the Supreme Court announced that it had granted review of 10 cases, 7 of them criminal, from the "long conference" preceding the opening of the term. Today, the Court issued the opening orders list of the term. As expected, there are no additional grants of review for full briefing and argument. A few cases are sent back to lower courts for reconsideration in light of intervening decisions, and a very long list are simply denied.

There are a few cases that were neither granted nor denied, and they presumably are rescheduled to be considered again at another conference. These cases are interesting enough to the high court to be worth a second look. From the cases on SCOTUSblog's Petitions to Watch list, the following criminal and related cases have apparently been relisted:

Hust v. Phillips, No. 07-897 (from USCA9): Personal liability of prison librarian for not letting an inmate use a binding machine for his cert. petition, despite the fact that the rules of the court do not require binding. A simple staple will do for an "in forma pauperis" petitioner.

San Francisco v. Rodis, No 07-1376 (from USCA9): Personal liability of police officers for mistakenly arresting a person for use of a $100 bill believed to be counterfeit but actually genuine.

Owens v. Kentucky, No. 07-1411 (from SC KY): Frisk of companion of arrestee, an issue related to the pending case of Arizona v. Johnson, No. 07-1122, CJLF brief here.

Patrick v. Smith, No. 07-1483 (from USCA9): Sufficiency of evidence in shaken baby death case.

Mercier v. Ohio, No. 08-17 (from SC OH): Probable cause for search of auto passenger's purse.

Davis v. Georgia, No. 08-66 (from SC GA): The controversial claim-of-innocence capital case, previously noted here.

Update: Some of the denials of certiorari are mentioned in this AP story and Lyle Denniston's post at SCOTUSblog. No biggies.

New Hampshire Poll: Support For Death Penalty In Cop Killing: An article from the Boston News reports that a new poll shows more than half of New Hampshire residents believe the death penalty is an appropriate punishment for someone who murders a police officer. The poll comes as the state prosecutes two capital murder trials, including one that involves a police officer's death. Death penalty experts say polls taken during the course of high profile prosecutions tend to show greater support for the death penalty than those taken at other times. But the numbers represent a shift since the last time public opinion on the death penalty was measured.

Conyers Calls For Death Penalty For Child Murderers: Scott Ryan reports from WWJ Newsradio that Detroit city council president Monica Conyers is calling for Michigan to reinstate the death penalty, following the weekend murder of a four-month old baby. Conyers told WWJ that she wants to see justice and feels that child murderers in Michigan should be put to death. Sunday's shooting death occurred at the Premier Apartments on Lahser. The baby was shot in the head after gunmen sprayed bullets into the picture window of his mother's apartment.

Calif. Laws Crack Down On Sex-Offender Teachers: AP writer, Juliet Williams, reports that Gov. Arnold Schwarzenegger has signed two bills making it tougher for teachers who commit sex crimes to remain in California's public schools. The new laws close loopholes in California's teacher licensing system that had allowed some teachers accused or even convicted of serious crimes to remain in the classroom. It will allow the state to revoke licenses from teachers who plead no contest to certain sex crimes or drug offenses without waiting for a discretionary review that can sometimes take two or three years. The results of investigations into teacher misconduct will be available for five years instead of being sealed after one year, as they currently are.

Testimony Ends In 25-year-old KFC Murders In Texas: According to a story by AP writer, Michael Graczyk, a witness testified Monday about the night of September of 1983 when five people were abducted from a Kentucky Fried Chicken restaurant in a van driven by a white man and carrying three people wearing KFC uniforms. The five victims - four KFC employees and a friend - were found shot to death along a rural road about 15 miles from the restaurant the next day. James Rowe testified as defense attorneys began their case in the capital murder trial of Darnell Hartsfield. It was long one of Texas' oldest unresolved mass murder cases. Hartsfield faces life in prison if convicted of the five capital murder counts. Prosecutors chose not to seek the death penalty.

A High Court ruling in the Troy Davis case is expected on October 6, according to a story by Atlanta Journal Constitution reporter Bill Rankin. The Court stayed Davis' execution on September 23, two hours before it was to be carried out. Davis was sentenced to die for the 1989 murder of a 27-year-old police officer who came to the aid of a homeless man Davis was pistol-whipping in a Burger King parking lot. The father of two did not have time to draw his gun and was shot three times. The Court could lift the stay on Monday, October 6th, or agree to reconsider Davis' claims questioning his guilt which had been reviewed and rejected by the Georgia Supreme Court and the lower federal courts.

Robbie Brown has this story in the NYT on the Supreme Court's stay of execution for Georgia death row inmate Troy Davis. Yours truly is quoted near the end:

Kent Scheidegger, a death penalty expert at the Criminal Justice Legal Foundation in California, called the Supreme Court’s intervention “not usual but not too rare either.”

“I’m not terribly surprised,” Mr. Scheidegger said. “This fellow has enough of a claim of innocence that many people say he’s innocent.”

The inherent problem with newspaper quotes is that quotee has absolutely no say on which of his statements on a case makes it into the paper. The reporter works the statement he chooses into the story, and the editor has the final call. In this instance, my criticism of the Georgia Board of Pardons and Paroles for not giving an explanation of its review and conclusions, noted here, didn't make the cut. The Board was the right forum to evaluate this claim, and if it had issued a full explanation for its conclusion this stay might very well have been denied.

Update: "Federalist" asks in the comments if an explanation would open the door to judicial scrutiny of the clemency decision. I believe a majority of the present Court would endorse the position of the lead opinion in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998) and shut down such challenges.

The Georgia Parole Board issued this press release Monday on the Troy Davis case. The full text is also quoted after the jump, in case they remove the page linked here.

It's good that they made an exception to their "no comment" policy, but they did not go far enough. In capital cases with claims of actual innocence, an explanation should be the rule, not the exception. Further, the explanation should go into detail as to why the board does not believe the inmate is actually innocent. The right way to do it was illustrated by Gov. Pete Wilson of California in the Thomas Thompson case. We appended this explanation to our brief in Calderon v. Thompson, 523 U.S. 538 (1998), and the Supreme Court noted it. See id., at 547-548, 552, 556.

The Georgia Board should do the same, as should the clemency authority in any case of this type. There aren't enough of them that this would be a significant burden, and it is very bad for public confidence in the system to have one side saturating the media with claims he is innocent while the people who properly decided that question are virtually mum on their reasons for rejecting it.

UPDATE. The CJLF brief in Calderon v. Thompson is available here.

The Maryland Death Penalty should "stand as written, and be used more often to serve the citizens" writes Paul Highbarger in an Op Ed in today's Baltimore Sun. Governor Martin O'Malley has received legislative authorization to appoint a commission to study the state's death penalty and recommend changes to what Highbarger calls "one of the nation's most restrictive" capital punishment laws. He calls the commission a complete waste of time and money and a tool the Governor is using "to force his own personal beliefs on the state."

Protesters in Atlanta marched Thursday in opposition to the execution of Troy Anthony Davis, who was sentenced to death for killing an off duty police officer during a violent crime spree in 1986. An AP story in today's Atlanta Journal Constitution barely mentions the murder victim, and does not note that on the night of the murder Davis shot another man in the face and was pistol whipping a second victim when Officer Mark MacPhail intervened and was killed. Our post from Tuesday provides the background on this case.

The Adam Walsh Act passed by Congress in 2006 to transform the patchwork of uncoordinated state sex offender registries into a nationally linked system to keep track of sex offenders was not much more than a photo-op according to this Fox News piece by Charles D. Stimson and Andrew M. Grossman of the Heritage Foundation. While the agency created by the act has issued guidelines to upgrade and conform state registries, the funding promised to help offset the related costs has not been authorized. Just this year, Congress cut funds for the program by two thirds and some states are backing off of implementation or opting out.