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The Troy Davis Stay


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.


But arent't there issues arising from "full explanations"? First of all, clemency is traditionally a matter of grace, which means, of course, that no explanation is needed. So these boards are probably not institutionally equipped to write bullet-proof explanations of why they made their decisions. Additionally, concepts of "innocence" and proof thereof are necessarily going to be different for courts and layment on these boards. For example, Governor Wilder, when considering Roger Coleman's execution relied on a failed lie detector test. Courts would obviously be loath to do that and almost certainly would be tempted to second-guess the decision by the board that was based in part on a failed lie detector test. Moreover, what if the board simply doesn't believe the convict's protestations of innocence? A board would have to be very very careful about relying on that--since courts are very very hesitant about making an affirmative conclusion (i.e., that the guy is guilty) from disbelief of a statement (i.e., "I didn't do it.") However, in the real world, disbelief of an explanation or denial leads to the conclusion that what was denied actually happened. Finally, how is evidence supporting guilt but that was not offered at trial supposed to be taken into consideration. News reports indicate that Mumia Abu-Jamal has admitted killing Danny Faulkner to a journalist. Would a board be justified in relying on testimony like that? I would think so, but courts would have issues with that.

Once boards start writing down their reasons, those reasons will become a target for defense attorneys, who will seek stays so that those reasons can be evaluated by courts. Also, let's not forget that, as things stand now, convicts are incentivized to testify in front of these boards. If reasons for decisions are required to be given, and those reasons start routinely being attacked when innocence is asserted, there will be little reason for the defendant to subject himself to questioning by the board. Instead, the defendant's lawyers can simply go on offense against the state's evidence with no worries about having to play defense. They get that at trial, not at a clemency hearing.

Courts are currently micromanaging the execution process, and I would argue that the micromanagement has been an abject failure--more scarce judicial resources are being wasted, and murderers are able to drag out appeals even longer. States have written down detailed procedures which have become the target for picayune litigation in front of gullible courts (e.g., the initial complete lack of skepticism about the Lancet study). Why in the world shouldn't we expect similar exercises if parole boards start writing detailed explanations of why they reject an innocence claim? I, for one, cannot believe that boards or governors do not take their duties with respect to clemency and innocence with the utmost seriousness. Deference is the order of the day.

Kent has a valid point that the judicial branch may ultimately decide there is no jurisdiction to review executive branch parole decisions of this type. On the other hand, federalist has a valid point that detailed explanations by parole boards will invite "picayune litigation by gullible courts." One solution may be to encourage state courts and prosecutors to let these so called innocence claims play out at state level post-conviction proceedings, thereby avoiding latter day drama before an executive branch board composed of quasi-political bureaucrats from the corrections industry.

I think part of the issue here is "who decides" and the deference to the decision maker. To a certain extent, of course, if federal courts are simply going to start reviewing freestanding innocence claims, then it doesn't really matter what the boards/governors do. The courts will come up with some standards for determining what constitutes innocence and start ordering new trials. The standards would probably look like Schlup/House, and will likely metastasize like Strickland has.

But that would create serious problems. Given how things tend to go, there would likely be inexorable slippage, and federal courts could routinely be involved in Kevin Cooper-like litigation, at least in death cases. While I am sure that would be ok with some, that would be a mess.

If on the other hand, federal courts are going to, as a practical matter, look to the reasoning behind a resolution of an innocence claim in order to determine whether to get involved, then, inexorably, the reasoning is going to matter. I think the post admits as much, as it states that the lack of reasoning in the Davis denial could have influenced the stay decision.

The upshot, I think, is that if we start having governors/parole boards making written findings, those findings are going to be a target, and I don't think Woodard will immunize the decision from challenge. Once you grant that there is a liberty interest in a proceeding, and that liberty interest is your life, then there will be a push to have process. It's a very very easy argument to make that a death row inmate has a due process right to have the parole board look at his innocence claim thoroughly and to require that a written explanation, if given, explain with thoroughness why it rejected the claim--after all, "there is a life at stake". Moreoever, and I am not a litigator, but if courts start looking at the adequacy of an explanation, they, inexorably are going to start looking at the merits.

Of course, all of this takes place with the backdrop of an innocence claim. It's not a leap to see clemency hearings on innocence becoming a heads I win, tails we fight again situation. And having detailed written findings, I think, creates the possibility of making that a reality.

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