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Troy Davis Goes to SCOTUS


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.


Are the vanishingly small chances helped at all by the GA Supreme Court's 3/4 split and the Chief Justice's dissenting remarks?

Immediate skepticism of Davis's "innocence claim" is warranted, where his request to the Georgia State Board of Pardons and Paroles was for commutation of his death sentence to life without parole. Moreover, the GA Supreme Court dissenter was skeptical of Davis's "innocence claim", but was of the opinion that Davis should have been afforded an opportunity to present the evidence supporting his "innocence claim" through live testimony instead of affidavits. It looks like the Georgia State Board of Pardons and Paroles afforded Davis that very opportunity, and have unanimously determined that commutation to life without parole is not warranted. See http://www.pap.state.ga.us and follow the link to the Troy Davis decision.

What is "innocence" for purposes of Herrera? I think that's an interesting question. Would a defendant be "innocent" if he merely negated the prosecution's evidence such that no reasonable person would convict or does he affirmatively have to prove "he didn't do it".

House v. Bell certainly points in the negation direction, which is certainly problematic in that case.

Moreoever, what of additional evidence of the prosecution? For example, let's say Mumia Abu-Jamal made a serious claim of innocence. Would prosecutors, in trying to deny him a new trial, be allowed to introduce evidence that he admitted his guilt after trial?

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