Blog Network

About The Bloggers


Supreme Court Ruling Revives Death Penalty Debate

The Supreme Court caught us off guard yesterday, issuing a potentially momentous order on a quiet August Monday when we would assume the justices would be off in their RVs or wherever. The court ordered a federal district judge to hear testimony on the claims of death row inmate Tory Anthony Davis that he did not murder a Savannah, Ga., police officer in 1989, as the Fulton County Daily Report explains.

The order itself is just a paragraph, unsigned. It transfers Davis' habeas corpus petition to the U.S. District Court in Georgia and instructs the court 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."

Apart from its coming in the middle of August, the order is significant for several reasons. For one, it is the first time in nearly 50 years that the court has ordered a hearing based on a petition for habeas corpus filed directly with the Supreme Court, as opposed to petitions that have come up through the lower courts. "Today this Court takes the extraordinary step -- one not taken in nearly 50 years -- of instructing a district court to adjudicate a state prisoner's petition for an original writ of habeas corpus," wrote a strident Justice Antonin Scalia in a dissent from the order in which Justice Clarence Thomas joined.

For another, it illustrates the dramatic clash among the justices in their perspectives on the death penalty. Scalia's strident dissent is met by an equally strident concurrence written by Justice John Paul Stevens and joined by Justices Ruth Bader Ginsburg and Stephen G. Breyer. "Transferring his petition to the District Court is a confusing exercise that can serve no purpose except to delay the State's execution of its lawful criminal judgment," argues Scalia. "The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing," responds Stevens.

For still another, the case represents an end run around the Antiterrorism and Effective Death Penalty Act, a 1996 federal law designed to limit death-row prisoners to one round of federal court appeals. Davis had exhausted his first round of federal appeals and was turned down by the 11th U.S. Circuit Court of Appeals when he sought permission to file a second federal appeal. So he took his case straight to the Supreme Court and found success. "Prisoners have been trying for nearly 50 years without success to get the Justices to employ this 'original jurisdiction,'" writes David von Drehle in Time. "Davis succeeded." (von Drehle does a great job explaining the interplay between this case and the AEDPA.)

Last but hardly least, the case could set the stage for a decision on an issue never squarely decided by the court -- whether the Constitution forbids the execution of a defendant who can demonstrate "actual innocence." "This court has never held," Justice Scalia wrote in his dissent, "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."

Perhaps not, but it has suggested as much, writes Adam Liptak in The New York Times. Liptak cites dictum from a 1993 decision, Herrera v. Collins, in which Chief Justice William H. Rehnquist wrote for the court, "[W]e may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional and warrant federal habeas relief."

And so Davis and his case get another chance. And perhaps he will be back before the Supreme Court yet again.

Posted by Robert J. Ambrogi on August 18, 2009 at 11:59 AM | Permalink | Comments (3)


About ALM  |  About  |  Customer Support  |  Privacy Policy  |  Terms & Conditions