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April 16, 2009

Troy Davis gets no relief on innocence claims in Eleventh Circuit

The Eleventh Circuit today in this long per curiam opinion disposes of the legal claims of Georgia death row defendant Troy Davis.  Here is how the opinion starts:

On October 22, 2008, Troy Anthony Davis (“Davis”), a Georgia death row inmate, has filed an application with this Court seeking authorization to file a second or successive 28 U.S.C. § 2254 federal habeas petition, raising for the first time a freestanding actual innocence claim.  Davis had previously filed a federal habeas petition in the United States District Court for the Southern District of Georgia in 2001, alleging, among other things, violations of Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972), Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).  Davis now claims that his execution would violate the Eighth and Fourteenth Amendments because he is actually innocent of the offense of murder. We took the unusual step of staying Davis’s execution, which had been scheduled for October 27, 2008, and ordered the parties to submit further briefs.  Thereafter, we scheduled the case for oral argument.  Having the benefit of the parties’ briefs and after hearing extensive oral argument, we deny Davis’s application.

This ruling will surely get lots and lots of attention from all the usual death penalty suspects, which of course includes many Justices of the Supreme Court.  It will be interesting to see if SCOTUS will eventually take up this case.

April 16, 2009 at 05:45 PM | Permalink

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Comments

no concurrence from Judge Martin of the 6th Circuit... interesting

Posted by: anonymous | Apr 16, 2009 6:44:40 PM

Doug, I don't see SCOTUS taking this one up. Davis is not obviously innocent, and both the state and federal courts have given his claims a thorough review.

The other thing people should remember is that Georgia schedules executions quickly. When and if cert. is denied, the date will be set very quickly.

And once Davis is executed, his name will disappear from public consciousness.

Posted by: federalist | Apr 16, 2009 7:16:45 PM

Just like to point out, there's a ocean of difference between "Davis is not obviously innocent," and "Davis is obviously not innocent."

Posted by: . | Apr 16, 2009 7:48:45 PM

I'd have to agree with 7:48:45 on that one. Unfortunately for Davis, there's not a lot of difference legally.

Posted by: federalist | Apr 16, 2009 8:05:52 PM

Federalist wrote, "And once Davis is executed, his name will disappear from public consciousness."

This is no doubt true. And it is a sad commentary on our society - the government kills someone for supposedly doing something that he might very well not have done, and no one cares. Sad.

Posted by: Anon | Apr 16, 2009 8:13:36 PM

C & C's take:

http://www.crimeandconsequences.com/crimblog/2009/04/troy-davis.html

Posted by: federalist | Apr 16, 2009 10:46:19 PM

It is to be hoped that the Supreme Court Justices will feel obligated both to address the issue of innocence, and to respond to the impressively argued justification for judicial intervention by Judge Barkett in his dissent. Thus far we see yet again the parlous state of an appeal system which addresses only judicial procedure at the expense of the possibility of innocence. How is this conceivably in the interests of the public or of the rule of law?

Posted by: peter | Apr 17, 2009 4:41:43 AM

Does anyone know if this decision can be reviewed on cert.? The per curiam reads as if the only route to the Supremes is through an original habeas petition (or maybe they mean that that is the only route not subject to the second/successive limitations which they take to be dispositive?).

Posted by: Anon | Apr 17, 2009 9:56:14 AM

Denial of leave to file a second or successive habeas petition is not subject to cert. review (or a pet. for rehearing in the court of appeals, for that matter) under the AEDPA.

Posted by: rs | Apr 17, 2009 10:26:52 AM

rs, I believe he'd still have the right to file an original action for habeas relief

Posted by: federalist | Apr 17, 2009 10:57:04 AM

Thank you, rs. I thought that might be the case, but didn't have the Westlaw access to confirm it. (Actually, I guess I could have found the answer on the interwebs without WL. OK, I'm lazy. But thanks anyway!)

Posted by: Anon | Apr 17, 2009 11:18:20 AM

"Turning to the present case, we conclude that Title I of the Act has not repealed our authority to entertain original habeas petitions, for reasons similar to those stated in Yerger. No provision of Title I mentions our authority to entertain original habeas petitions; in contrast, § 103 amends the Federal Rules of Appellate Procedure to bar consideration of original habeas petitions in the courts of appeals." Felker v. Turpin, 518 U.S. 651, 660-661 (1996).

"Whether or not we are bound by [AEDPA's successive petition] restrictions, they certainly inform our consideration of original habeas petitions." Id., at 663.

Posted by: Kent Scheidegger | Apr 17, 2009 11:51:05 AM

Peter, Judge Barkett is a she, and I believe her opinion carries about as much weight with SCOTUS as Judge Reinhardt's.

Posted by: Kent Scheidegger | Apr 17, 2009 11:53:48 AM

Kent. Then it is to be hoped that the Justices are more respectful of the argument, which substantially uses precedence of SCOTUS opinion, than they are of personalities with whom they might be ideologically at odds.

Posted by: peter | Apr 17, 2009 12:56:27 PM

“I want you to know that the trauma placed on me and my family as I have now faced execution and the death chamber three times is more punishment that most can bear. Yet as I face this state-sanctioned terror, I realize one constant--my faith is unwavering, the love of my family and friends is massive, and the fight for justice and against injustice by activists worldwide has ignited a fire that is raging for human rights and human dignity....We must dismantle this unjust system, city by city, state by state, and country by country..... Never stop fighting for justice, and we will win!” Troy's own words

Posted by: peter | Apr 17, 2009 1:38:05 PM

Barkett's opinion is kind of silly. It basically boils down to "law be damned, I think he's innocent". Of course, without Barkett's checkered pro-criminal past (see, e.g., Dougan v. State, 592 So. 2d 1), she would be taken more seriously.

Posted by: federalist | Apr 17, 2009 4:09:16 PM

Federalist, you're hardly one to be making accusations about people being taken seriously based upon their past ideological affiliation. You (and your discredited ideology) are now irrelevant. Let the serious people talk, please.

Posted by: DK | Apr 18, 2009 12:45:47 AM

If Judge Barkett's opinion be silly, then I would say that silliness is a high virtue. However, I would like to go a step further and clarify what I would consider the equitable principle which should govern here. The correct standard is not "actual innocence" when the penalty is death, but rather "substantial doubt concerning guilt" which would render the verdict "unsafe for execution" -- although the level of doubt may fall well short of the standard articulated in _Jackson v. Virginia_ (1979) that no reasonable jury would find the defendant guilty beyond a reasonable doubt. Releasing a defendant who has been convicted in a constitutionally sustainable trial, or granting a new trial (which many years later may amount to the same thing, given the difficulties of rounding up witnesses, etc.), far more put in issue the state's interest in punishing those lawfully convicted than merely reducing a death sentence to life imprisonment (typically without possibility of parole in death-eligible murder cases). Thus one can and should draw a reasoned distinction between continued imprisonment and the extraordinary penalty of execution when substantial doubt has been demonstrated which yet falls short of the exacting standard for "actual innocence." The logic of Justice Harlan's concurrence in _In Re Winship_ would indicate that it is far worse to execute an innocent person than to keep confined an innocent person unless/until more compelling evidence is advanced of that innocence. The Court's remarks in _Williams v. Florida_ that jury verdicts on guilt by a six-person jury have not been used in capital cases, where the traditional 12-person body may offer an elevated level of confidence for "society's decision to impose the death penalty" (I think that's a direct quote, would also support a "substantial doubt as to guilt" standard in the unique situation of an execution. As requested, I should note that I'm a paralegal advocate involved now and then in capital appellate research and writing, and also that if I were a justice of SCOTUS, I'd add: "Adhering to my view that the death penalty in all cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments, I would vacate the death sentence in this case." Finally, we should note that Judge Barkett was expressing the same "silliness" as Chief Justice Leah Sears and two of her colleagues who dissented in a 4-3 decision of the Georgia Supreme Court denying Davis an opportunity for a new trial. Whether or not the evidence justifies a new trial, I'd say it sure justifies not killing Davis.

Posted by: Margo Schulter | Apr 18, 2009 7:12:24 PM

Ms. Schulter, surely you realize that a federal court in a habeas case is in a different position from a state court looking at a case.
.
DK, go soak your head.

Posted by: federalist | Apr 18, 2009 9:06:41 PM

Immersing my head in the deep and refreshing currents of Anglo-American jurisprudence, I'll offer federalist a quick reply. Certainly a federal habeas court is constrained by considerations of federalism and comity that put it in a very different position than a state court. When overturning a state conviction on "actual innocence" grounds is the issue, _Jackson v. Virginia_ accordingly imposes an exacting test. My point in this death penalty case, where "substantial doubt of actual guilt" should render execution unconstitutional under the Eighth and Fourteenth Amendments, is that a 4-3 split in a state court on permitting motion toward a new trial is one objective index that the case is too close for comfort from an Eighth Amendment viewpoint as regards execution. _In favorem vitae_ "in favor of life" is a maxim that can justify a federal court in overturning a death sentence when federalism would require upholding the underlying conviction.

Posted by: Margo Schulter | Apr 19, 2009 12:59:22 AM

The Georgia Board of Pardons and Paroles evaluated the claim of actual innocence after stating that they would commute the sentence if they had any doubt of guilt. Then they denied the commutation. Their policy is to not issue an opinion explaining their reasons. I think they should reconsider. Public confidence would be enhanced with a careful explanation of the evidence by a body unhindered by the procedural limitations of postconviction review by courts.

http://www.crimeandconsequences.com/crimblog/2008/09/troy-davis-and-the-georgia-par.html

Posted by: Kent Scheidegger | Apr 19, 2009 1:29:49 AM

Kent. You know as well as anyone that in most states, the boards of pardons and paroles rarely exercise the power they have to commute in capital cases. There appears to be considerable confusion in fact, on the part of their constituent members, as to exactly what their role is supposed to be. It is certainly not to determine guilt or innocence - but to ensure that truly, only the "worst of the worst", who have demonstrated no capacity for reform or capacity to successfully integrate into the general prison population, are executed. These boards should not be viewed as a failsafe against wrongful conviction! That should be the role of the courts - a role that, post-trial, is performed extremely poorly as I have pointed out before. It is not sufficient for appeals courts simply to review due process in terms of legal procedure etc. Where a life is at stake, the consideration or review of new or questionable evidence should be of at least equal importance and without time limit. However, that is not to say that the boards should not be required to account fully for their decisions, which in places such as Texas, appear merely to rubber stamp the position of the state prosecutors. Better still of course, follow the examples of New Jersey, New Mexico, and others before them, and abolish capital punishment entirely.

Posted by: peter | Apr 19, 2009 7:49:00 AM

Federalist wrote: "Ms. Schulter, surely you realize that a federal court in a habeas case is in a different position from a state court looking at a case."

What does this even mean? The questions raised in a habeas case are federal constitutional questions. It is the federal judiciary's responsibility to interpret, apply, and enforce the federal constitution. Federalism and comity in federal habeas was interposed by conservative jurists (and later unconstitutionally heightened by a conservative Congress dominated by a Southern party) as a means to thwart enforcement of the US Constitution, particularly the post-Civil War 14th Amendment. The doctrines of federalism and comity have no place in a federal habeas corpus court, and now that the Southern party's political power has been diminished, responsible representatives should restore the supremacy of the federal constitution and the federal judiciary's role in interpreting and enforcing it.

Posted by: DK | Apr 19, 2009 1:40:10 PM

"Kent. You know as well as anyone that in most states, the boards of pardons and paroles rarely exercise the power they have to commute in capital cases."

In most states, clemency is considered only after multiple rounds of both state and federal review. Cases that warrant clemency rarely survive those reviews. In California, the state I am most familiar with, none of the cases in the post-Furman era have even been close calls.

"These boards should not be viewed as a failsafe against wrongful conviction! That should be the role of the courts - a role that, post-trial, is performed extremely poorly as I have pointed out before."

It was none other than Earl Warren who said that actual innocence was not even a ground for habeas relief, much less the purpose of the proceeding. In my humble opinion, a failsafe for cases of wrongful conviction is indeed one of the main purposes of executive clemency.

Posted by: Kent Scheidegger | Apr 20, 2009 6:17:41 PM

Kent.
"Clemency is an act of grace , proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts ...."
John Marshall, Chief Justice of the United States Supreme Court (1833)
In its 2004 ruling, the California Ninth Circuit Court of Appeal said that Stanley Williams' "good works and accomplishments since incarceration may make him a worthy candidate" for an act of executive clemency.

In one petition I saw, 80,000 people in 2005 took the trouble to record their disagreement with the California Board of Pardons and Paroles, and the Governor, both of which declined an appeal for clemency in spite of the guidance given by the federal court of appeal. The guidance was rare enough of itself. That the "executive" should then ignore it was and remains one of the most disgraceful decisions ever recorded - short of those where actual innocence was a real possibility, and in the case of Troy Davis, where actual innocence is a probability.
"In my humble opinion, a failsafe for cases of wrongful conviction is indeed one of the main purposes of executive clemency."
If this is the case, I would be interested to see a list of such acts of clemency, granted on this basis and where the courts had not already accepted actual innocence, by boards of pardons and paroles in cases of capital conviction. I would also be interested to see what guidance you would give them in making such a decision.

Posted by: peter | Apr 21, 2009 2:43:17 AM

In the case of Crips founder "Tookie" Williams, it would have been a disgrace to cave in to the Hollywood-orchestrated campaign on behalf that multiple murderer. "Guidance" from the Notorious Ninth is entitled to little, if any, weight.

I don't have a list of clemencies based on the possibility of innocence, but the Spirko case of residual doubt clemency has been discussed both on this blog and at C&C.

Posted by: Kent Scheidegger | Apr 21, 2009 1:07:17 PM

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*** WEALTHY ELITE AMERICANS (WHO ARE ONLY 1% OF OUR USA POPULATION) SADLY ALSO CONTROL HOW OUR U.S.CONGRESS SPENDS THEIR BUDGET TRILLION$ AND HAVE OBVIOUSLY FOUND MORE WORTHY INTERNATIONAL CITIZENS THEN OUR OWN DESPERATE AND NEEDY POOR TO ASSIST !!!

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Middle Class and Working Poor Americans are unable to afford proper legal representation in their Civil, Criminal and Family Courts of law all across America causing tremendous hardships nationwide,but these great minds and callous hearts in our American Congress have found others Worldwide more needy then their own citizens who are being falsely incarcerated,wrongfuly executed,losing their homes or apartments,losing child custody or visitation with their children etc� Not being afforded proper legal representation by our U.S. Congress has created a total breakdown of the American judicial system for our poorer Americans because the our U.S. Courts punish all of us little people if we are not assisted with proprer legal counsel.

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Improper murder trials and needless deaths due to the lack of healthcare take place in Third World Countries all the time. *** Why should average Middle~Class and Working Poor Americans in the Wealthiest Country Of The World be treated as if they are living a Third World Life Style ??

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lawyersforpooreramericans@yahoo.com
424-247-2013

Posted by: LAWYERS FOR POOR AMERICANS | Sep 9, 2009 4:35:12 PM

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Posted by: z-wave | May 11, 2012 12:39:42 PM

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