Well, we finally seem to have an oddly explicit answer to the until-now kinda-sorta-maybe rhetorical question raised once by Mr. Justice Scalia.
The U.S. Supreme Court on Tuesday cleared the way for Troy Anthony Davis’ execution, declining to enter a contentious debate as to whether the condemned inmate was the real killer of a Savannah police officer in 1989. The court, without explanation, refused to hear his appeal even though seven of nine key prosecution witnesses have recanted their testimony since the 1991 trial. Just three weeks ago, the high court had halted Davis’ execution with less than two hours to spare.
Davis should find out soon when he will be put to death. It is the third time he has faced the prospect of execution in little more than a year. The next step is for a Chatham County judge to set a time frame in which Davis’ execution can be scheduled by the Department of Corrections.
Davis’ claims of innocence attracted international attention, with Pope Benedict XVI and former President Jimmy Carter among those challenging the fairness of his execution. Davis was condemned to die for the Aug. 19, 1989, killing of Savannah Police Officer Mark Allen MacPhail. The 27-year-old father of two, working off duty, was shot dead after he responded to the cries of a homeless man being pistol whipped in a Burger King parking lot.
The officer’s mother, Anneliese MacPhail, expressed relief at the high court’s decision. “Especially for my grandson and my granddaughter,” she said, referring to the slain officer’s two children, now adults. “We can now settle down.”
MacPhail, 75, does not expect “closure” if Davis is executed. “There is no such thing,” she said. “We will always be thinking about Mark. At least we won’t have to go to court. We will have some peace.” She does not plan to attend the execution, although two of her four remaining children want to witness it. “It doesn’t give me any satisfaction to watch that,” she said. “I still have anger in me, and I’m afraid I would say something.”
Davis’ sister, Martina Correia, was furious . “I don’t even know what to say,” Correia said. “I wonder why I’m still a U.S. citizen sometimes.” Correia told her brother of the high court’s decision. “He said, ‘It doesn’t make any sense. What do I have to do?’ to convince a court that he is innocent,” Correia said.
Davis’ mother, Virginia Davis, 63, said police charged the wrong man. “The real killer is walking around Savannah, bragging about what he’s done,” she said. “If they kill Troy, they have God to answer to. They don’t have the Davis family to answer to.”
Larry Cox, executive director of Amnesty International, which has supported Davis’ appeals, also condemned the decision. “It is disgraceful that the highest court in the land could sink so low when doubts surrounding Davis’ guilt are so high,” Cox said. “Faulty eyewitness identification is the leading cause of wrongful convictions and the hallmark of Davis’ case.”
Since Davis’ trial, seven key witnesses recanted their testimony. Others also have come forward implicating another man who was with Davis at the scene. Eyewitness testimony formed the backbone of the prosecution’s case. The murder weapon was never found, and there was no DNA evidence or a confession....
LEONEL TORRES HERRERA, PETITIONER v. JAMES A. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, No. 91-7328, [January 25, 1993]
Justice Scalia, with whom Justice Thomas joins, concurring.
We granted certiorari on the question whether it violates due process or constitutes cruel and unusual punishment for a State to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be "actually innocent." I would have preferred to decide that question, particularly since, as the Court's discussion shows, it is perfectly clear what the answer is: There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction. [...] Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. [...] I nonetheless join the entirety of the Court's opinion,including the final portion (pages 26-28)--because there is no legal error in deciding a case by assuming arguendo that an asserted constitutional right exists, and because I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution [n.1] lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today's opinion requires would fail to produce an executive pardon....
In Contempt » Archive » Deadly Silence: an interesting statement about the person who would be president presumptive.
To be fair, I don't think Obama's silence on the case is about race, really; it's about being so damn busy that the case probably isn't even a blip on his radar. But even if it were, I kind of doubt he'd say much right now.
It is perhaps worth nothing that the opinion with which Scalia was agreeing is that Mr Herrera was not, in fact, entitled to a new trial or a commutation of his sentence, or any remedy whatsoever, because "the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus." In other words, discovering new evidence of actual innocence does not get you a day in federal court to force the state to consider your case. And given that the state has a vested interest in not showing actual error in the justice system, and in protecting its conviction rates, it seldom wants that anyway.
The interesting thing is that Scalia is rather angry at his fellow justices for declining to reach the issue that was actually brought before them, whether or not the Constitution prohibits the execution of an innocent person if the death penalty verdict was correctly reached. I suspect the justices did not want the court to go on record with an even more explicit "yes, of course" to that question; it would undermine confidence in the system to say that the system is perfectly happy to execute a person known to be innocent as long as the state dotted all the I's and crossed all the T's correctly in the course of the trial.
The interesting thing about the Davis case is that it would seem to allege, at the least, "an independent constitutional violation" of the sort mentioned in the Herrera case opinions. Surely witnesses alleging that they were threatened and suborned by the police constitutes such a violation, or ought to. Surely witness suppression and threatening and perjury are exactly the sorts of independent constitutional violations that should trigger a review; do they not impede the right to a fair trial and due process? Leave aside the issue of cruel and unusual punishment; very technically speaking, it's no more cruel for the innocent than the guilty, it seems. If possibly suborned witnesses and perjury do not constitute exactly that sort of violation, what does? It's also baffling that apparently, there's a lower threshold for review of improper imprisonment than errors of fact that would lead to execution -- "...federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution--not to correct errors of fact...."
I do not understand the law, I certainly do not.
Posted by iain at October 20, 2008 04:56 PM
