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AEDPA, Innocence, and the Davis case

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Update: The Georgia Board of Pardons and Paroles has granted a 90 day stay. Announcement here; order here.

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In the case of Troy Davis, scheduled to be executed in Georgia tomorrow (see today's News Scan) the claim is being made that the Antiterrorism and Effective Death Penalty Act of 1996 prevented the federal courts from hearing his evidence of innocence. The story in the Atlanta Journal-Constitution, for example, says, "Courts have declined to hear Davis['s] new evidence, in part because of a federal law aimed at expediting seemingly endless death penalty appeals." This article in the Washington Post goes even farther, claiming AEDPA is "[a]t the heart of Davis's difficulties...." There is just one small problem with this claim. It is false.

The Eleventh Circuit ruling can be found at 465 F. 3d 1249 or on Findlaw. The court noted that there are two contexts in which actual innocence is raised in capital cases on federal habeas corpus. Id., at 1251. One is the so-called Herrera claim. That is the claim that the Supreme Court took up but then dropped in Herrera v. Collins, 506 U.S. 390 (1993) that a sufficient showing of actual innocence should produce federal habeas relief even in the absence of any claim of procedural error. The reason the high court dropped the issue is Herrera was that once they got past the defense spin and looked at the real facts, it was apparent that Herrera was guilty as sin. They haven't needed to reach the issue since.

Davis did not make an Herrera claim. See 465 F.3d, at 1251. The only purpose for which he claimed actual innocence was to pass through the "Schlup gateway." This is the rule, articulated in Schlup v. Delo, 513 U.S. 298 (1995) that a sufficient showing of actual innocence would allow the federal court to reach the merits of claims that the petitioner failed to present to the state court and can no longer present there. The usual rule is that the federal court cannot reach these "defaulted" claims.

In Davis's case, the Federal District Court went ahead and decided the claims despite the default, and it decided they had no merit. The Court of Appeals therefore held that Davis "cannot be heard to complain that the test for achieving a desired result was not applied, or not applied correctly, when the desired result was, in fact, obtained." 465 F.3d, at 1253. This decision would have been exactly the same if AEPDA had never been enacted. The Court of Appeals applied Schlup, which predates AEDPA. Passing through the Schlup gateway does not lead directly to relief but only to a hearing on the merits. Under Schlup, there is no need to consider evidence of actual innocence if the court gives the petitioner everything he would have gotten had he made the showing. No harm, no foul. Davis did not get a hearing on innocence under Herrera for the simple reason that he did not make a Herrera claim.

On the merits, the Eleventh Circuit proceeded to decide the questions of law de novo, with no mention of the deference standard of 28 U.S.C. § 2254(d). That standard only applies to cases decided on the merits in state court. Again, the case was decided exactly as it would have been had AEDPA never been enacted. The three claims were decided on the basis of Supreme Court precedents, all of which predate AEDPA.

As of this writing, the case is before the Board of Pardons and Paroles. If the claims of a realistic doubt about identity of the perpetrator are valid and not just another snow job (and we've seen plenty of those), the Board should grant a reprieve long enough to resolve the doubts. If the doubts can't be resolved, the sentence should be commuted.

This case is a valid basis for a discussion about how to handle doubts of identity in the clemency process. The attempt to use the case to attack AEDPA based on a misrepresentation of the federal courts' decisions, however, is just another cynical disregard of the truth.

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