Troy Anthony Davis is scheduled for execution in Georgia a week from now for the murder of police officer Mark Allen MacPhail. Prior posts here, here, and here. He has applied to the U.S. Supreme Court for a stay of execution, according to this post on SCOTUSblog by Lyle Denniston. According to Lyle, "The key issue his appeal raised is whether the Court will rule — in a way it has only assumed previously — that it is unconstitutional to execute a person who is innocent of the crime, and has substantial evidence to support that claim." What the Court actually said in Herrera v. Collins, 506 U.S. 390, 417 (1993) (emphasis added), was:
We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold.
The Court also made pretty clear that the right place to consider last-minute, free-standing claims of innocence is executive clemency. Georgia has done exactly that. In this order, the Board stayed the execution to hear the innocence claim, stating, "The members of the Georgia Board of Pardons and Paroles will not allow an execution to proceed in this State unless and until its members are convinced that there is no doubt of the guilt of the accused...." The subsequent denial implies they are now convinced.
So what are the chances that the Supreme Court will grant review to reconsider a fact-intense claim that has already been carefully considered by the body that the Court has said is the right one to consider it? Vanishingly small.