Most U.S. Supreme Court cases begin as a petition asking the high court to review the decision of a lower court. It is also possible, though, to file an original habeas corpus petition in the Supreme Court. Such petitions are still indirect, or "collateral," reviews of the conviction and sentence, but they don't fit with the Supreme Court's usual way of doing things, and it generally rejects them with one-line orders. The only reason to file one, in most cases, is that all the other ways have already been tried without success.
Nine years ago, the Supreme Court took the highly unusual step of taking up the original petition of Troy Davis. He claimed he was actually innocent of the murder for which he was about to be executed. He said he had compelling evidence of innocence, and the claim had never been heard. The Supreme Court transferred the case to a district court to hear the evidence, as described in this 2009 post.
The district court duly took up the case, heard the evidence, and a year later found that Davis's supposedly compelling evidence was "smoke and mirrors." See this 2010 post. After another year and further last-minute machinations, Davis was finally executed. See this 2011 post.
Now comes Daniel Clate Acker, who has filed an original petition, No. 18-6086, claiming actual innocence. Is this another Troy Davis case? There is one big difference. Acker has already had a thorough hearing on his innocence claim.
The federal district judge's decision is Appendix F to Acker's petition, beginning on page 28 of the PDF Appendix file. Judge Marcia Crone found:
Combining the elements of Petitioner's threats to kill Ms. George; his admitted anger at her shortly before her death; the fact that he hit her during the events leading up to her death (also admittedly, not for the first time); Mr. Young's testimony that contradicts and virtually destroys Petitioner's story of picking Ms. George up off of the road, but instead has Petitioner pulling Ms. George out of the truck and laying her along the road in front of the truck before getting back in the truck and driving off; Dr. DiMaio's testimony that someone jumping or being pushed from a moving vehicle would "tumble" across the highway, dissipating the energy of the fall, and yet in Ms. George's case it was clear that she had been run over and the massive injuries of being run over were the cause of her death; and the fact that the prosecution did include the possibility of death by blunt force trauma alone during presentation of evidence and in closing arguments, the Court arrives at the conclusion that a reasonable jury would be more likely than not to convict Petitioner of capital murder. Specifically, that if a reasonable jury were presented with this evidence, rather than the predominant evidence of strangulation previously presented, that jury would more likely than not convict Petitioner of intentionally running Ms. George over with his truck and killing her.In the Question Presented, Acker's counsel says there are two compelling reasons to grant the petition. The second is:
Second, since this Court decided Herrera v.Collins, 506 U.S. 390 (1993), there has been confusion regarding the standards for actual innocence, new technology has added greater significance to these claims, and there are compelling reasons under the Eighth Amendment to recognize a free-standing actual innocence claim since Herrera was handed down.
But Acker has the same problem Herrera had. In that case, the Supreme Court took up the case to decide on the question of a compelling but "free standing" claim of actual innocence, i.e., an innocence claim not tied to any procedural error. After the Court took up the case and took a hard look at the evidence, it decided this was not the right case to decide that question. Herrera's claim was so weak that he could not meet any standard they might announce. Justice O'Connor said in her concurring opinion:
The record overwhelmingly demonstrates that petitioner deliberately shot and killed Officers Rucker and Carrisalez the night of September 29, 1981; petitioner's new evidence is bereft of credibility. Indeed, despite its stinging criticism of the Court's decision, not even the dissent expresses a belief that petitioner might possibly be actually innocent. Nor could it: The record makes it abundantly clear that petitioner is not somehow the future victim of "simple murder," post, at 446 (dissenting opinion), but instead himself the established perpetrator of two brutal and tragic ones.
This case does include a twist that one of the prosecution's two asserted causes of death is not true. That hardly makes a compelling claim for a fundamental miscarriage of justice, though.
Given the district court findings in this case, I think it is highly unlikely that the Supreme Court will take the rare step of entertaining an original habeas corpus petition.
Update (9/27): The Court denied the request for stay and petition for writ of habeas corpus.
