TROY DAVIS CASE: BRUTAL SCALIA DISSENT UNITES CONSERVATIVES AND LIBERALS AGAINST EXECUTIONS IN THE FACE OF INNOCENCE LEDGER EDITORIAL SAYS;

""THIS COURT HAS NEVER HELD," JUSTICE SCALIA WROTE IN HIS DISSENT ON THE DAVIS DECISION, "THAT THE CONSTITUTION FORBIDS THE EXECUTION OF A CONVICTED DEFENDANT WHO HAD A FULL AND FAIR TRIAL BUT IS LATER ABLE TO CONVINCE A HABEAS COURT THAT HE IS 'ACTUALLY' INNOCENT."

CONTRAST THAT CRASS ASSESSMENT WITH THE APPROACH TAKEN IN AN OPINION WRITTEN BY JUSTICE JOHN PAUL STEVENS, AND JOINED BY JUSTICES RUTH BADER GINSBURG AND STEPHEN G. BREYER: "THE SUBSTANTIAL RISK OF PUTTING AN INNOCENT MAN TO DEATH CLEARLY PROVIDES AN ADEQUATE JUSTIFICATION FOR HOLDING AN EVIDENTIARY HEARING."

THE ORDER FOR A HEARING DOESN'T OVERTURN THE CONVICTION OR SENTENCE, AND WHETHER DAVIS CAN PROVE HIS INNOCENCE REMAINS TO BE SEEN. BUT AT LEAST A COURT WILL LOOK AT THE ADDITIONAL EVIDENCE AND, WE HOPE, CONGRESS AND THE SUPREME COURT WILL EVENTUALLY MAKE CLEAR THAT JUSTICE AND THE CONSTITUTION DON'T ALLOW FOR AN "ACTUALLY INNOCENT" PERSON TO BE EXECUTED."

EDITORIAL: THE LEDGER;

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Background: (Wikipedia); The Troy Davis case concerns the case of Troy Anthony Davis, a former sports coach from the U.S. state of Georgia, who was convicted and sentenced to death in 1991 for the August 19, 1989 murder of off-duty Savannah, Georgia police officer Mark MacPhail. Throughout the trial and subsequent appeals, Davis maintained his innocence, claiming he was wrongfully convicted of the crime as a result of false identification. After the trial and first set of appeals, seven of the nine prosecution eyewitnesses who had linked Davis to the killing recanted or contradicted their original trial testimony, claiming police coercion and questionable interrogation tactics. The witness who first implicated Davis and has remained consistent, Sylvester "Redd" Coles, was initially a suspect in the crime. Coles was seen acting suspiciously the night of MacPhail's murder and has been heard boasting that he killed an off-duty police officer. There is only one witness who did not recant his testimony and is not himself a suspect in the murder, but he made an in-court identification of Davis two years after the crime.Davis opponents say Coles came back to the scene of the shooting with a female after police arrived. Davis changed clothes (even asking Coles for a shirt later) and fled to Atlanta with his sister. Davis has repeatedly asked the courts to examine the new exculpatory evidence, but so far has not been successful in persuading a majority of judges to grant him a new trial or conduct a hearing in which the recanting eyewitnesses could be cross-examined to determine the credibility of Davis’ innocence claims. In October 2008, Davis filed a second Habeas petition in the 11th Circuit Court of Appeals on the grounds that it was the first time Davis was presenting a free-standing innocence claim and that no court has yet held an evidentiary hearing on the exculpatory evidence of recanted testimony. On 16 April 2009 the three-judge panel denied Davis' petition on procedural grounds by a 2-1 majority. Amnesty International has strongly condemned the refusal of U.S. courts to examine the innocence evidence, and has organized rallies and letter-writing campaigns to persuade the Georgia and Federal courts to grant Davis a new trial or an evidentiary hearing. Many prominent politicians and leaders, including President Jimmy Carter,[6] Pope Benedict XVI, Nobel laureate Archbishop Desmond Tutu, Presidential candidate Bob Barr, and former FBI Director and judge William S. Sessions have called upon the courts to grant Davis a new trial or evidentiary hearing. On 17 August 2009, the U.S. Supreme Court, over the dissenting votes of two justices, ordered a federal district court in Georgia to consider and rule on whether new evidence "that could not have been obtained at the time of trial clearly establishes [Davis'] innocence."

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The barbaric possibility of wrongfully executing a person in the face of powerful evidence of innocence has prompted a powerful editorial by the Ledger (Lakeland, Florida, in support of the Supreme Court's decision in the Troy Davis case - and against Justice Scalia's brutal dissent.

"An unusual alliance of conservatives and liberals - joined by capital punishment proponents and opponents - persuaded the U.S. Supreme Court to issue a rare order," the editorial begins.

"The court's order, which only Antonin Scalia and Clarence Thomas opposed on the record, allowed fundamental constitutional principles to prevail over deference to state law and a flawed federal act," the editorial continues.

"The order, issued last week, requires a federal district court in Georgia to "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."

The justices in the majority also posed a question that hasn't been directly answered by the nation's highest court: Is it unconstitutional for a state to execute an inmate unless a court has reviewed "claims of actual innocence" that surface after the trial?

This question is not only important in Georgia, but in Florida and other states that provide for capital punishment.

Troy Anthony Davis was convicted in Georgia of the 1989 fatal shooting of a police officer in Savannah. He was sentenced to death in a trial court. Both his conviction and sentence were upheld by higher state courts in Georgia.

FORMER CONGRESSMAN HELPS

Since Davis' conviction, seven of the witnesses who testified against him recanted and several people have pointed to the prosecution's main witness as the killer.

Recanted testimony is often unreliable, but there is evidence that the police and prosecution focused solely on one suspect - Davis. And the witnesses' post-trial statements were strong enough to persuade 27 former prosecutors and judges to file a brief pleading for a court hearing to assess the reliability of the testimony in Davis' favor.

In response to separate motions filed by Bob Barr - a former Republican congressman and one-time federal prosecutor - and organizations such as the NAACP, the Supreme Court ordered a lower court to hear the testimony that emerged after Davis was convicted.

Barr's motion is notable because when he was a member of the U.S. House he helped write the federal law governing death-penalty appeals. The federal appeal court for the 11th Circuit cited the law - the Anti-Terrorism and Effective Death Penalty Act of 1996 - in denying Davis a hearing on the recanted testimony.

Barr has stated that the appeal court "misread" the act. Even though the act was intended "to stop the unfounded-and-abusive delays in capital cases," Barr said, "nothing in the statute should have left the courts with the impression that they were barred from hearing claims of actual innocence like Troy Davis'."

The passage of time will make it difficult for the federal district court to assess the validity of the new evidence in Davis' favor.

'THICKET OF PROCEDURAL BRAMBLES'

In the meantime, Congress should revisit the Anti-Terrorism and Effective Death Penalty Act to:

Untangle what one federal judge called its "thicket of procedural brambles."

Provide explicit authority for judges to order the examination of relevant evidence before a state sanctions an execution.

Unfortunately, because the act is ambiguous and the Supreme Court justices don't have precedents to guide their decisions, there is wide room for interpretation.

"This court has never held," Justice Scalia wrote in his dissent on the Davis decision, "that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."

Contrast that crass assessment with the approach taken in an opinion written by Justice John Paul Stevens, and joined by Justices Ruth Bader Ginsburg and Stephen G. Breyer: "The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing."

The order for a hearing doesn't overturn the conviction or sentence, and whether Davis can prove his innocence remains to be seen. But at least a court will look at the additional evidence and, we hope, Congress and the Supreme Court will eventually make clear that justice and the Constitution don't allow for an "actually innocent" person to be executed."

The editorial can be found at:

http://www.theledger.com/article/20090824/NEWS/908245005?Title=Death-Penalty-Appeal-Supreme-Court-Seeks-Truth

Harold Levy...hlevy15@gmail.com