August 17, 2009
How many justices decided death and innocence (and original habeas) are different in Davis?
The law geek in me is having a hard time thinking about my upcoming classes because I am so taken by the Supreme Court's fascinating little ruling this morning (discussed here), which addresses the "original" habeas petition In re Troy Davis, No. 08–1443 (S. Ct. Aug. 17, 2009) (ruling available here). And, as explained below, I have lots and lots of follow-up questions.
First, consider Kent's effective comments at C&C about the Davis procedural posture:
And now, for something completely different... The U.S. Supreme Court and its individual Justices have the jurisdiction to issue "original" writs of habeas corpus -- "original" in the sense that the petitioner applies directly to the Supreme Court for relief, as opposed to applying to a lower court and then appealing the denial....
The Court used this jurisdiction in the nineteenth century to review cases it had no other way to review, but the power pretty much gathered dust in the twentieth century and, until today, in the twenty-first. Term after term, every Monday orders list has had one-liner denials of original habeas petitions.... And now comes Troy Davis.
In other words, Fed Court fanatics ought to be excited (or at least intrigued) that SCOTUS has dusted off and made use of its unique "original" powers in this case. But, dear readers, have these powers been used for good or for mischief?
Second, consider the Court's formal two-sentence ruling in Davis:
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 findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence.
By virtue of this ruling, Fed Court fanatics ought to be excited (or perhaps puzzled) that SCOTUS has ordered a US district court to receive testimony and find facts as to whether Troy Davis, based on "evidence that could not have been obtained at the time of trial," can now "clearly establish[ his] innocence." But does SCOTUS have the inherent power to make district courts do its "original" work? On the merits, does Davis has to prevail by a preponderance or by clear and convincing stanard or some other burden of proof? And will SCOTUS immediately review the "findings of fact" it has ordered or will the Eleventh Circuit take the first "appeal" in this "original" habeas matter?
Third, consider the final paragraph of Justice Scalia's dissent from the ruling in Davis:
Today, without explanation and without any meaningful guidance, this Court sends the District Court for theSouthern District of Georgia on a fool’s errand. That court is directed to consider evidence of actual innocence which has been reviewed and rejected at least three times, and which, even if adequate to persuade the District Court, cannot (as far as anyone knows) form the basis for any relief. I truly do not see how the District Court can discern what is expected of it. If this Court thinks it possible that capital convictions obtained in full compliance with law can never be final, but are always subject to being set aside by federal courts for the reason of “actual innocence,” it should set this case on our own docket so that we can (if necessary) resolve that question. Sending it to a district court that “might” be authorized to provide relief, but then again “might” be reversed if it did so, is not a sensible way to proceed.
As a matter of pure procedure, I think Justice Scalia makes some strong points. But only Justice Thomas joined his dissent.
Fourth, consider the final paragraph of Justice Stevens' concurrence in the ruling in Davis:
JUSTICE SCALIA would pretermit all of these unresolved legal questions on the theory that we must treat even the most robust showing of actual innocence identically on habeas review to an accusation of minor procedural error. Without briefing or argument, he concludes that Congress chose to foreclose relief and that the Constitution permits this. But imagine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man. The dissent’s reasoning would allow such a petitioner to be put to death nonetheless. The Court correctly refuses to endorse such reasoning.
As a matter of pure substance, I think Justice Stevens is reasonable to assert that neither Congress nor the Constitution mean to permit the execution of a once-properly-convicted, but now-obviously-innocent defendant. But only Justices Ginsburg and Breyer joined this concurrence (and we are told that Justice Sotomayor did not participate in the case).
In short, three Justices made clear via Justice Stevens' opinion that they view death as a punishment and innocence as a claim (and original petitions as a vehicle) to be different in a way that justified the Court's peculiar ruling in this case. Meanwhile, two Justices made clear via Justice Scalia's opinion that they do not view death as a punishment and innocence as a claim to be different so as to justify the Court's peculiar (and cursory) ruling in this case.
A big question then remains: what's up with the other three Justices (aka Chief Justice Roberts and Justices Kennedy and Alito)? Notably, this troika is made up of the three (swing?) Justices who established the middle-ground position that the Supreme Court adopted in the Baze lethal injection case.
Based on past votes in tough capital cases, I'd guess that Justice Alito found Justice Scalia's opinion attractive, and that Justice Kennedy was drawn to Justice Stevens' opinion. But neither put their names on an opinion. And, because I suspect that the Chief Justice's vote may have been influenced mostly by how the Davis case would reflect on the Court as an institituion, I have a strange feeling that he may have been centrally involved in the decision to punt this matter to the district court.
August 17, 2009 at 01:01 PM | Permalink
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Amazing what the court felt was necessary to do here - while at the same time still clinging to the fiction that the procedural administration of the death penalty is not deeply - and constitutionally - flawed post-AEDPA.
How many other similar cases of "past-due" innocence claims did they pass on where there wasn't this level of publicity?
Posted by: Samuel | Aug 17, 2009 1:22:06 PM
what's up with the other three Justices (aka Chief Justice Roberts and Justices Kennedy and Alito)?
Putting five names on an opinion makes a majority, and four names would look like a binding plurality. That's why Stevens' concurrence only drew two other Justices at this stage of the proceedings.
Posted by: JC | Aug 17, 2009 1:27:43 PM
JC: What exactly is a "binding plurality" and are you saying that some Justice(s) who agreed with Justice Stevens left his name off that opinion simply to avoid creating this "binding plurality"?
Posted by: Doug B. | Aug 17, 2009 1:50:53 PM
"But does SCOTUS have the inherent power to make district courts do its 'original' work?"
"The Supreme Court ... may transfer the application for hearing and determination to the district court having jurisdiction to entertain it." 28 U.S.C. §2241(b).
Posted by: Kent Scheidegger | Aug 17, 2009 1:53:36 PM
I didn't phrase that very artfully. I think Kennedy, Roberts and Alito are all probably inclined to agree with Stevens' concurrence, at least with respect to whether or not freestanding claims of innocence are a cognizable ground for relief. If Stevens' concurrence had been joined by five Justices, it would look like a precedent-setting determination by a majority of the Court that freestanding claims of actual innocence are viable under the Constitution. If four Justices had joined it, it would start looking somewhat similar to a four-vote plurality opinion in a regular case on the merits. It would still just be a concurrence with respect to an order, of course, but a fourth vote might be viewed by some as a determination on the merits of the underlying constitutional question by a controlling plurality of Justices. I think Kennedy, Roberts and Alito would each resolve that question in favor of freestanding claims of innocence, but none of them would want to give any impression that the order today has settled the issue.
Posted by: JC | Aug 17, 2009 2:30:20 PM
There are a couple of real issues here:
1) The affidavits are likely to be as good as Davis' case gets. (Unless the guy who hasn't recanted does so or if Coles confesses, neither of which seems likely.) If the recanters testify, it's likely that their claims of police pressure etc. will be undermined, and it's likely that the tactics of Davis' lawyers will become an issue. So if the affidavits are as good as Davis' case gets, shouldn't the federal courts butt out, since the Georgia courts (and parole board) have given Davis' claims a lot of judicial attention.
2) Isn't this case "all or nothing" for Davis? I don't think he can get a new trial--freedom or death, it would seem to me.
Posted by: federalist | Aug 17, 2009 2:43:07 PM
"neither Congress nor the Constitution mean to permit the execution of a once-properly-convicted, but now-obviously-innocent defendant"---but who makes that call of "actual" or even "obvious" innocence? Why is not a judicial system's call on that final? How does it become a federal question (and if so, why is it limited to death-penalty cases--why aren't all newly discovered evidence claims simply federal claims (or are they?).
(I am a state (appellate) prosecutor).
Posted by: tab | Aug 17, 2009 3:09:34 PM
Kent, the full text of 28 U.S.C. §2241(b) that you've left out suggests to me that SCOTUS must first (and formally?) "decline to entertain an application for a writ" to do this kind of transfer. And since the Court's "opinion" does not cite 2241(b), I wonder if this statutory authority is being invoked. Moreover, if it is, what then gives SCOTUS authority in the next sentence to direct the district court as to what sort of evidence is "should" consider?
If not hinky, this ruling still feels like a rushed punt. Many will likely praise the outcome, but I will keep wondering about the process.
Posted by: Doug B. | Aug 17, 2009 3:15:46 PM
tab, I think you raise an interesting point--whether you agree with the outcome or not, it's clear that Georgia has given Davis' claims a lot of care.
"If not hinky, this ruling still feels like a rushed punt."
I agree with that assessment. There are no real instructions to the District Court. Nothing on appealability; nothing on whether Davis can be required to testify.
Posted by: federalist | Aug 17, 2009 3:24:33 PM
The statute reads:
"The Supreme Court ... may decline to entertain an application for a writ of habeas corpus and may transfer the application for hearing and determination to the district court having jurisdiction to entertain it."
If the district court is without power to hear a second or successive habeas petition, then wouldn't the district court be without "jurisdiction to entertain it." It seems to me that the better approach is embodied in Justice Scalia's idea that the Court, if it really desired to issue original relief to Davis, should have kept cognizance of the action.
The Court possibly had in mind its practice to appoint special masters in cases under its original jurisdiction between the states. I think the appointment of a special master for fact-finding, perhaps a respected senior district judge with capital experience like Richard Matsch from Colorado, would have better procedure.
I'm not an attorney (though, I often joke that if my son's outpost of SUNY grows a law school, I might get in as a reverse legacy).
Posted by: Edmund Unneland | Aug 17, 2009 3:32:45 PM
Federalist - Can you be a state(appellate) prosecutor and not be an attorney? Just trying to make sense of your two previous posts.
I am just an interested citizen.
Posted by: moonsha | Aug 18, 2009 6:12:21 PM
Just speculating (isn't that what everyone else does here?), but might this seemingly obscure "procedural order" be a harbinger of the Court's willingness to eventually reconsider Herrera itself and maybe allow habeas courts to give serious consideration to well-supported innocence claims? The fact that Roberts and Alito sided (albeit silently) with the majority could be of major significance here. Sotomayor could also, quite possibly, be interested in revisiting Herrera.
Prof. Stan Adelman, Albany Law
Posted by: Stan Adelman | Aug 19, 2009 12:15:27 PM
Most disturbing in the order of the Supreme Court is the dissent of Scalia and Thomas who appear to have no problem with the execution of an innocent man. Would they just wash their hands like Pointius Pilate?
Posted by: Michael R. Levine | Aug 19, 2009 1:01:12 PM
Not an attorney, just an interested citizen with concern for justice for the 27 year old victim with a 7 week old child. It's one thing to order a hearing back in the lower courts but, insofar as claims of "actual innocence" based on recanted statements and testimony impacted by years and pressure from Amnesty, Bob Barr, William Sessions, the Pope, and former President Jimmy Carter, and who knows what else..etc,, that would be an irresponsible fiction. Scalia is right in saying it is a "fool's errand" and that the SCOTUS should just as well examine all evidence and make a decision themselves as to Davis' "actual innocence." But I guess that would entail thinking about MacPhail's broken and bloody teeth lying on the sidewalk and Davis asking for Coles' shirt in preparation for a case of mistaken identity.
Posted by: Anthony | Aug 22, 2009 8:31:15 PM
WHERE ARE OUR AMERICAN RELIGIOUS LEADERS HIDING ?
~ THE LOUD LAUGH OF SATAN WAS HEARD IN THE PEOPLES HALLS OF U.S. CONGRESS AND AMERICAN RELIGIOUS LEADERS HAVE TURNED THEIR HEADS,CLOSED THEIR EYES AND SHUT THEIR EARS IN FEAR ~
THIS OLD WORLD ORDER OF ABUSE AND NEGLECT OF OUR POORER AMERICANS NEEDS ENLIGHTENED POLITICAL MINDS AND HEARTS TO VIEW GOD DIFFERENTLY THEN $$$…. NO MATTER WHAT THEIR POLITICAL PARTY AFFILIATION ???
WHEN WILL OUR WEALTHY ELITE AMERICANS ABATE THEIR ASSAULT ON POORER AMERICANS WITH THEIR MONETARY CONTROL OF OUR IVORY TOWER U.S. CONGRESSIONAL LEADERS OF THE NEW WORLD ORDER ???
THERE ARE NOT MANY MORE DISTRACTIONS LEFT WHICH ARE AVAILABLE FOR OUR WEALTHY ELITE AMERICANS TO HIDE BEHIND IN NOT TAKING PROPER CARE OF ALL OUR AMERICANS IN A HUMANE FASHION !!!
RALPH NADER ATTEMPTED TO EDUCATE AMERICAN VOTERS ABOUT U.S. CORPORATE POWER IN AMERICA AND HOW THEY CONTROL OUR CONGRESSIONAL PEOPLE THROUGH THEIR POCKET BOOK (POLITICAL DONATIONS). * WITHOUT THE DOUGH $$$ THESE U.S. CONGRESSIONAL LEADERS OF THE FREE WORLD DO NOT GET RE~ELECTED TO CONGRESS.*TO STAY IN POLITICAL OFFICE IN AMERICA,ONE HAS TO BARTER YOUR VOTES IN CONGRESS AND REPRESENT POWER INTERESTS IN RETURN FOR THE BUCK$.
POORER AMERICANS HAVE NEVER HAD THE $$$ LOBBY TO INFLUENCE THIS CORRUPT POLITICAL CONCEPT (of horse trading political votes for political contributions) TO ACHIEVE PROPER HEALTH ~CARE OR LEGAL REPRESENTATION FOR ALL OUR MIDDLE ~ CLASS AND WORKING POOR AMERICANS.
AMERICAN IVORY TOWER U.S.CONGRESSIONAL LEADERS OF THE FREE WORLD HAVE PASSED FEDERAL LEGISLATION IN WASHINGTON DC TO SPEND 50 BILLION AMERICAN TAX $$$ ON THE INTERNATIONAL FIGHT AGAINST AIDS OVER THE NEXT FIVE YEARS WHILE THEIR OWN AMERICAN CITIZENS ARE BEING TOLD BY THIS SAME U.S.CONGRESS THAT NATIONAL HEALTH CARE AND PROPER LEGAL REPRESENTATION FOR MIDDLE CLASS AND WORKING POOR CITIZENS IS UNAFFORDABLE.
*** 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 !!!
~Poorer Americans Nationwide only get 400 million $$$ per year for legal representation allocated them by CONGRESS~
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.
*It is a known fact that our average Middle Class and Working Poor Americans without proper legal representation in all of our American Courts of law lose their legal cases to the better financed who are able to afford lawyers.
Lawyers For Poor Americans is now actively in the hunt for International Countries and Leaders Worldwide to help raise 5 Billion Dollar$ for our slighted poorer Americans who have had their own American Congress turn their backs on their desperate needs in not affording them proper legal representation.
Troy Davis and Mumia Abu ~ Jamal are 2 perfect examples of American citizens who never had proper legal representation or defense investigations afforded them by our U.S. Congressional Leaders Of The Free World in their initial criminal trials in (Georgia and Pennsylvania) who might very well have to pay the ultimate price of possibly being completely innocent and falsely executed in the near future. These two poorer Americans are among tens of thousands of legal cases nationwide that never were afforded proper legal representation or proper defense investigations at their initial trials……**We the public really have no idea if these men are innocent or guilty until they both are given fair legal representation at their new future trials.
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 ??
This is the first of many www International pleas by Lawyers For Poor Americans for other leaders and countries to help raise the needed monie$ to correct these blatant injustices that have been inflicted on poorer Americans for the last few decades. Lawyers For Poor Americans has many other written articles that can be viewed with any www search engine by our name or our telephone number.
Lawyers For Poor Americans is a www lobby group of volunteers that sing out about the decades old neglect,abuse and injustices being inflicted on our poorer Americans that have become Crimes Against Humanity issues for the International World Court to investigate.
Posted by: LAWYERS FOR POOR AMERICANS | Sep 9, 2009 4:31:32 PM