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Troy Davis Thrice Denied

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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.
However, he writes, "that does not necessarily mean that all nine Justices agreed with the outcome.   In fact, two Justices, Stephen G. Breyer and Ruth Bader Ginsburg, had joined in a comment in August 2009 that there was in this case 'a substantial risk of putting an innocent man to death.' "

Yes, but that was before the hearing.  If they did not believe that the hearing and the District Court findings had resolved the issue, would they not be writing again to explain whether they concur or dissent in the disposition and why?  Denniston writes, "A majority of the Court apparently was not persuaded that there was a sufficient flaw in the way Judge Moore approached the case."  I think it is highly probable that none of the nine Justices was persuaded.  It is hard to believe that any would be silent in a case with this high a profile if they still believed Davis is innocent.

Greg Bluestein has this story for AP.

1 Comment

It's hard not to be cynical about this case. I think Davis unquestionably guilty. Though it's not admissible evidence, one would think that an innocent witness to a capital murder would speak up about the real killer right away--instead, as Davis did, of getting convicted and waiting a decade to say what happened. I know that snitches get stitches, but it's hard to believe that someone would swallow a bogus conviction to satisfy some street code.

But I don't think that the Court's decision has a whole lot to do with Davis' innocence per se. The fact is that even if Davis is innocent (about the same likelihood that the Mets are going to win the Series this year), there's nothing that will ever prove it. Thus, the Court has no real skin in the game. So tossing this case is a costless exercise. And Davis will likely be executed.

Compare that with the Skinner case. Skinner had a chance to get evidence tested at trial. Skinner filed a last minute claim, and the Court granted cert., and tossed the case. Ridiculous. But there is the possibility that DNA testing could cast Skinner's case into doubt, so the Court isn't going to risk that. Or what about Maples. He's obviously guilty, and how often does a death row inmate have both lawyers blow him off? Not too many. But the lobby cranked up, and the Court decided to give Maples a chance.

Seems to me that the issue is more about appearances than justice. And although I don't think that the execution of a murderer is that big a deal, appearances shouldn't matter, but I think it obvious that they do.

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