Good, and frankly rather surprising and unexpected, news on the case of Troy Davis has emerged. The Supreme Court has just ordered a new look at his case:
The Supreme Court on Monday ordered a federal trial court in Georgia to have a fresh look at the case of Troy Davis, who is on death row in state prison there for the 1989 murder of an off-duty police officer. The case has attracted international attention, and 27 former prosecutors and judges filed a brief supporting Mr. Davis.
Seven of the witnesses against Mr. Davis have recanted their testimony, and several people have implicated the prosecution’s main witness as the actual killer of the officer, Mark MacPhail.
The Supreme Court’s decision was unsigned and only a paragraph long, but was nonetheless highly unusual. It instructed the trial court to “receive testimony and make findings of fact” about whether new evidence clearly establishes Mr. Davis’s innocence.
Unfortunately Scalia basically used this as an opportunity to argue that innocent death row inmates have no actual right to not be put to death. Thankfully, Justices Stevens, Ginsburg and Breyer disagree with that ludicrous and terrifying assertion.
That said, presenting evidence which clearly establishes innocence is a much more difficult threshold to meet than presenting evidence that introduces reasonable doubt. Innocence can be very, very hard to prove, even when you are actually innocent. So, I’m glad that the court has given Troy Davis some kind of opportunity here. I also feel that it’s still unlikely to end well for him, despite the reasonable doubt that seems very likely to be present. And, of course, I can’t help but note my feeling that we wouldn’t be at risk of putting an innocent man to death at all if the government was not in the business of murdering convicts in the first place.
What do you think about the latest development? Can anyone who knows a lot more about the law than I do better explain what exactly this means for Troy and his case?
I don’t know much about American law, so I will defer to your opinion that this is not great. But it’s something. Much more than I expected.
Supreme Court death penalty jurisprudence is really interesting, in my opinion, because of the way the rules are applied differently (IMO) to avoid upholding a death sentence when good post-conviction lawyering has resulted in some justices having a reasonable doubt as to whether the person actually committed the crime. IMO this is what happened in Kyles v. Whitley, and it sounds like Troy Davis is headed in the same direction. My very uninformed guess – a few years down the road the Court finds some way to hold the death sentence unconstitutional but the conviction constitutional and sends it back for resentencing to a life sentences. Most of the justices can’t stomache the executon of someone they think very well might be innocent (Scalia is obviously not in that group – but he may be the only one actually willing to say it doesn’t matter if the person is actually innocent, if the process was constitutional then he/she should be put to death). They don’t seem to have the same problem with life in prison withough parole.
Scalia is offering what seems to be the legal version of Pat Buchanan’s remark, when he was asked about the possibility of an innocent person being executed: “Surgeons lose patients on the operating table all the time. What’s the big deal?”
Scalia’s opinion on this case gave me one of those brief, sharp urges to move to some other country.