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July 6, 2010

Issue spotting the legal questions in the Troy Davis case

This new AP article, which is headlined "Troy Davis case full of murky legal questions," provides a basic overview of challenging issues that a high-profile capital case continues to generate. Here is a snippet:

Thanks to an order from the U.S. Supreme Court, a Georgia death row inmate was granted a hearing to prove his innocence to a federal judge — a chance afforded no American facing execution in nearly half a century.

Now that the court hearing is over, what happens next isn't so clear. The case of condemned inmate Troy Anthony Davis is so unusual, legal experts can't even agree on what the judge can do.

Davis' fate rests with a U.S. District Court judge who heard testimony in June from witnesses who say they lied at Davis' trial. Others say they heard another man confess to the 1989 slaying of Savannah police officer Mark MacPhail. Judge William T. Moore Jr. won't rule until after he reviews legal briefs from both sides due Wednesday.

Some experts say the judge could order a new trial.  Others say the judge could make a recommendation to the Supreme Court that Davis be freed from prison. There's also a possibility the judge could find Davis innocent, yet rule he's powerless to spare Davis' life.

"There is some ambiguity," said John H. Blume, a Cornell Law School professor who specializes in death penalty appeals. "Whenever you've got something this new, that hasn't happened all these years, you're really making your best guess."

In death penalty cases, federal courts normally consider only violations of due process and constitutional rights. When a divided Supreme Court granted Davis a hearing to prove his innocence last August, dissenting Justice Antonin Scalia called it "an extraordinary step — one not taken in nearly 50 years."...

If the judge rules against Davis and the Supreme Court upholds his decision, it's likely the end of his case — though Davis could make another appeal for clemency to the Georgia Board of Pardons and Paroles. If Davis succeeds in proving his innocence, things get murkier.

Michael Mears, a John Marshall Law School professor who's defended numerous capital cases in Georgia, suspects Davis may be granted a new trial.  That's what Davis' lawyers were seeking in 2007 when his latest round of appeals started.

But Stephen Bright, a Yale Law School lecturer and veteran death penalty attorney, argues a favorable ruling for Davis would likely result in the Supreme Court ordering Georgia authorities to free Davis. A second trial, he says, would amount to double jeopardy. "We're in totally uncharted waters," Bright said. "There would be arguments all over the ballpark on it."...

Complicating things further, the legal issues before the judge don't stop with Davis' innocence or guilt. The judge has asked lawyers to weigh in by Wednesday on two broader issues that could restrict his authority.

The judge's first question: Is he prohibited from helping Davis, even if he's innocent, by a 1996 law passed by Congress after the Oklahoma City bombing that limits death penalty appeals?  Scalia argued in his dissent that the Anti-Terrorism and Effective Death Penalty Act means federal courts are powerless to overrule Georgia courts that already rejected Davis' innocence claim.

The other legal question before the judge sounds like a no-brainer, but it's a constitutional issue the Supreme Court hasn't settled. Appeals courts found that Davis received a fair trial.  If he later proves he's innocent, would it be cruel and unusual punishment to execute him?  Or would putting him to death still be constitutional because Davis received a fair trial?

"It's the kind of claim you almost have to be a lawyer to make it sound even plausible," said Robert Schapiro, a professor of constitutional law at Emory Law School. "But the Supreme Court has never held that it violates the Eighth Amendment to execute someone who is actually innocent."  Still, legal experts say they doubt the Supreme Court would have ordered a hearing for Davis if it thought the federal courts were powerless to take action.

The judge hasn't laid out what options he's considering in Davis' case, and hasn't given himself a deadline to rule. The Supreme Court has recessed until October, so the wait could be weeks if not months.

July 6, 2010 at 07:52 AM | Permalink


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"But Stephen Bright, a Yale Law School lecturer and veteran death penalty attorney, argues a favorable ruling for Davis would likely result in the Supreme Court ordering Georgia authorities to free Davis. A second trial, he says, would amount to double jeopardy. "

That's rather bizarre. Has there ever been a case were a prisoner was freed (as opposed to released pending further appeals) with a conviction still on the books?

Posted by: . | Jul 6, 2010 8:41:38 AM

I believe if they look at House v. Bell, they'll find the answer. IIRC, House contemplates either release with no new trial or being retried, depending on the strength of the innocence case.

Posted by: federalist | Jul 6, 2010 8:54:30 AM

And how about the fun 7th amendment issue for those who take such things seriously (I admit few if any take the 7th seriously). Surely this hearing has to be seen as re-examining facts found by a jury. Is Davis arguing that the district court can set aside the guilty finding using a standard less than that required for judgment notwithstanding the verdict?

Posted by: Soronel Haetir | Jul 6, 2010 2:07:01 PM

Strictly speaking, a grant of habeas relief only precludes retrial where the violation found is Jackson v. Virginia -- insufficient evidence at trial -- or the Double Jeopardy Clause itself. Of course, there are lots of other cases where habeas bars retrial as a practical matter, e.g., by excluding on Confrontation Clause grounds an essential prior statement of a deceased witness.

The Seventh Amendment applies to "suits at common law" and has no application to criminal cases or habeas corpus.

Posted by: Kent Scheidegger | Jul 6, 2010 4:23:09 PM

My memory was a little hazy in House, but I think it is odd that the Court seemed to make a distinction between a showing that the guy didn't do it and a showing that the evidence at trial wouldn't convince a jury beyond reasonable doubt. Why did it do that if the remedy were simply going to be the same? I think that there may be five votes for the proposition that if the petitioner conclusively demonstrated factual innocence on habeas that a retrial is barred.

Posted by: federalist | Jul 6, 2010 9:55:24 PM


Notice I said for those who take such things seriously. The 7th amendment says no fact tried by a jury and I believe it should be read to mean exactly that.

Posted by: Soronel Haetir | Jul 7, 2010 11:02:59 AM


You're omitting the important part: facts tried by a jury can be reaximined if it is done "according to the rules of the common law."

Posted by: Michael R. Levine | Jul 7, 2010 1:31:49 PM

Soronel, one can take the Seventh Amendment seriously and still interpret the initial phrase as limiting the scope of the entire sentence.

Posted by: Kent Scheidegger | Jul 7, 2010 1:40:01 PM

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