Tuesday, August 18, 2009

Legal v. moral: SCOTUS supports Troy Davis

For the nine justices of the Supreme Court of the United States, the end of June, when their vacations begin, is almost as red-letter a day as the first Monday on October, when their caseload begins. Which is to say, when it usually begins.

But this lazy summer, the Supremes made an exception, with a rare summertime ruling that resets the countdown clock for a man convicted of a murder he may not have committed — and also begins, at the highest level, the judicial refutation of the idea that new evidence in a death-penalty case is an inconvenient thing.

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Almost 20 years to the day after the murder of which he was convicted, Troy Anthony Davis has earned a new opportunity to save his own life, again.

After years of nonstop exposure in the media, and, more recently, a relentless barrage of grassroots protests spearheaded by Amnesty International, the Supremes voted on Monday 6-2 (Justice Sonia Sotomayor hasn’t been seated yet), to order a Georgia federal district court to consider and rule on whether new evidence "that could not have been obtained at the time of trial clearly establishes [Davis'] innocence."

“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,” read the ruling.

The court agreed to remand the case despite the utterly predictable dissenting votes of two justices, Antonin Scalia (who wrote the dissenting opinion) and Clarence Thomas.

Years after Davis’ conviction, a Congress more enamored of efficiency than the truth passed the Antiterrorism and Effective Death Penalty Act (AEDPA). The AEDPA, which limited death-row prisoners to one bite of the appellate apple — one set of appeals in federal court — was, at the end of the day, meant to be the light-rail train that moved death-row inmates like Davis to their final destinations on the execution gurneys, and to do as quickly as possible.

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In their dissent, Scalia and Thomas stood hard by the principles of AEDPA, and seemed to suggest that, boiling it all down, hey, sometimes an innocent person has to be killed in the furtherance of orderly application of justice overall.

Scalia wrote, "This court has never held 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."

Scalia noted that the Supremes were ordering a district court judge to hold a hearing that, according to Congress, the judge is not allowed to convene.

But in a wonderfully articulated, mercifully brief majority opinion, Justice John Paul Stevens went upside Justice Scalia’s head, in the process smartly distilling the inescapable problem with capital punishment in the United States; its potential for error; and the likelihood for tragedy built into the judicial system’s insistence on finality over fairness:

“Justice Scalia’s dissent is wrong ... First, he assumes as a matter of fact that petitioner Davis is guilty of the murder of [off-duty Savannah police] Officer [Mark] MacPhail. He does this even though seven of the State’s key witnesses have recanted their trial testimony; several individuals have implicated the State’s principal witness [Sylvester “Red” Coles] as the shooter …

“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. …

“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.”

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In plain language, or plainer than Justice Stevens, the Supreme Court’s opinion effectively discounts the idea that a court’s punishment after a finding of guilt must be exercised no matter what; that the potential of new facts exonerating a defendant in a death-penalty case does, and should, automatically be ignored or invalidated by the drive for judicial closure.



As you might expect, the Supremes out-of-season decision has raised questions, many of them hinging on how far the courts should go to ensure that innocent people aren’t executed. There’s something intrinsically cynical about even asking that question. If the courts are, ultimately, the guardians of justice in our society, it makes sense that the proven potential for injustice by those same courts can’t be overlooked when it’s discovered.

Douglas Berman, a law professor at Ohio State University, told Time Magazine that “the way the court 'decided' the Troy Davis case … raises a lot more questions than it answers. It also probably ensures still more litigation in the future.”

And that’s no doubt true. As approved by Congress, the AEDPA specifically prohibits district judges from ruling further in the Davis case. What happens to future such cases in the face of AEDPA guidelines? It’s a thorny and potentially intractable issue.

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But we’re not frightened by the prospect of more litigation in such a case. The matter of Troy Davis may be legally known as Davis vs. the State of Georgia; what it’s becoming is a case of Spirit of Law vs. Letter of Law, and that’s a contest always worth debating. In the spirit of the law is the absolute pursuit of justice; we’re seeing how that pursuit may well be antagonistic to the letter of the law, the law as written.

So be it. The Supreme Court’s decision on Monday upholds a sound principle: that a good story, or a seemingly solid conviction, should never get in the way of the facts that may — or may not — support the validity of that story, or that conviction.

That responsibility to get it right in death-penalty cases shouldn't be superseded by a law passed by Congress, a law whose main intent is to speed people toward execution on an ASAP basis. It might satisfy the letter of the law, but it fails to uphold the spirit of the law. It might be legal, but it's not moral.

The case of Troy Anthony Davis returns to Georgia. As it makes its way through the system at the district-court level, we shouldn’t expect any less attention paid both to the case itself and what its outcome means for every American.

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