In re Troy Anthony Davis
[update: Somehow WordPress chopped off the final three paragraphs of the post. My apologies for not catching it sooner. The restored version is below.]
With keen initial reactions to the Court’s surprise 6-2 order for an evidentiary hearing on Troy Davis’s petition for an original writ of habeas corpus by Adam Liptak (here), Lyle Denniston, (here), and Orin Kerr (here), much of the essential reaction to the order has already been had. With that stated I thought I’d explore several of the intriguing issues with the Court’s brief order, and two opinions respecting that order (Justices Stevens & Scalia).
Most notable in Monday’s Court action, in my mind, is Justice Scalia’s radical dissent that perhaps best sums up his views of the constitution in regard to criminal justice generally and capital litigation issues specifically:
This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.
Put another way, and to steal from a colleague’s thoughts, killing an innocent man would appear not to offend Justice Scalia, and, in his opinion, not offend the constitution.
I suspect, however, Justice Scalia’s colleagues disagree. I am dumbfounded that the language of the Court’s order nowhere mentions, or even alludes to, AEDPA’s section 2254’s curtailment on fact-finding and grant of relief. The Court appears rather to have ordered a de novo evidentiary hearing to be held on the factual innocence claims with Mr. Davis entitled to relief if he could simply meet a “clearly establishes petitioner’s innocence” standard.” Nowhere does the Court mention a deference to state fact-finding or limitation on the type of evidence that could be produced. Specifically, the Court ordered:
The petition for a writ of habeas corpus is transferred to the United States District Court for the Southern District of Georgia for hearing and determination. The District Court should receive testimony and make[t]he District Court should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence.
Also notable is the split in this case, 6-2. The Court’s order indicates that Justice Sotomayor took no part in the decision to order an evidentiary hearing in the case. Unlike some commentators who believe the Court was trying to avoid being unseemly 4-4 split, a 4-4 split wouldn’t mean an unseemly split, rather it would mean denial of the petition. See, e.g., Hirota v. MacArthur, 335 U.S. 876 (1948) (mem.)(gathering cases); Everett ex rel. Bersin v. Truman, 334 U.S. 824 (1948) (mem.); In re Dammann, 336 U.S. 932 (1949) (mem.); In re Muhlbauer, 336 U.S. 964 (1949) (mem.); Vladeck, Stephen I., Deconstructing Hirota: Habeas Corpus, Citizenship, and Article III. Georgetown Law Journal, Vol. 95, May 2007. The Court readily could have chosen this option if it was going to simply deny relief rather than seriously entertain granting Mr. Davis a new trial or other relief.
Finally, I suspect something rather pronounced, albeit subtle is happening here. This is no longer the Rehnquist Court scarred by the bitter fights of the 80s and early 90s on the death penalty. Five Justices now sit on the Court that weren’t there when Herrera v. Collins and its rather tepid claim of factual innocence as a free standing innocence was decided. The new line-up of the Court gets a chance to test the issue that Herrera wisely left unresolved, whether the Constitution permits a Petitioner who can show that he is factual innocent may nonetheless be executed . As Lyle Denniston notes:
The Court has never ruled on whether a credible claim of “actual innocence” justifies extraordinary remedies in federal court, when a state conviction is involved. Davis’ case may well test that issue, as it moves through the federal courts again.
Akin Gump’s SCOTUSBlog has uploaded the documents that were before the Justices — the original writ, petition for certiorari, brief in opposition, and amici filings — here.
Invariably there will be more thoughts on the subject as Mr. Davis’s case winds it way through these new legal twists and turns.
