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Troy Davis and the Meaning of ‘Actual Innocence’
Sitting on death row in Georgia, Troy Davis has won a key victory against his own execution. On Aug. 17, the U.S. Supreme Court instructed a federal court in Georgia to consider, for the first time in a formal court proceeding, significant evidence of Davis' innocence that surfaced after his conviction. This is the first such order from the U.S. Supreme Court in almost 50 years. Remarkably, the Supreme Court has never ruled on whether it is unconstitutional to execute an innocent person.
The order read, in part, "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." Behind the order lay a stunning array of recantations from those who originally testified as eyewitnesses to the murder of off-duty Savannah police officer Mark Allen MacPhail on Aug. 19, 1989. Seven of the nine non-police witnesses who originally identified Davis as the murderer of MacPhail have since recanted, some alleging police coercion and intimidation in obtaining their testimony. Of the remaining two witnesses, one, Sylvester "Redd" Coles, is accused by others as the shooter and identified Davis as the perpetrator probably to save himself from arrest.
On the night of the murder, MacPhail was off duty, working as a security guard at a Burger King. A homeless man was being beaten in the parking lot. The altercation drew Davis and others to the scene, along with MacPhail. MacPhail intervened, and was shot fatally with a .38-caliber gun. Later, Coles arrived at the police station, accompanied by a lawyer, and identified Davis as the shooter. The police engaged in a high-profile manhunt, with Davis' picture splayed across the newspapers and television stations. Davis turned himself in. With no physical evidence linking him to the crime, Davis was convicted and sentenced to death.
Jeffrey Sapp is typical of those in the case who recanted their eyewitness testimony. He said in an affidavit:
"The police ... put a lot of pressure on me to say ‘Troy said this' or ‘Troy said that.' They wanted me to tell them that Troy confessed to me about killing that officer ... they made it clear that the only way they would leave me alone is if I told them what they wanted to hear."
Despite the seven recantations, Georgia's parole commission has refused to commute Davis' sentence. Courts have refused to hear the evidence, mostly on procedural grounds. Conservatives like former Georgia Congressman and prosecutor Bob Barr and former FBI Director William Sessions have called for justice in his case, along with Pope Benedict XVI, President Jimmy Carter, the NAACP and Amnesty International.
Supreme Court Justice John Paul Stevens wrote for the majority, "The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing." Yet conservative Justice Antonin Scalia dissented (with Justice Clarence Thomas), writing that Davis' case "is a sure loser," and "[t]his Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually' innocent."
Davis has had three execution dates, and in one instance was within two hours of lethal injection. Now he will finally have his day in court. With the courageous support of his sister, Martina Correia (who has been fighting for his life as well as her own--she has stage 4 breast cancer), and his nephew, Antone De'Jaun Correia, who at 15 is a budding human rights activist, Davis may yet defy death. That could lead to a long-overdue precedent in U.S. law: It is unconstitutional to execute an innocent person.Denis Moynihan contributed research to this column.
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39 Comments so far
Show All"this Court has never held the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually' innocent."
???????????????????????????
Joe
I can't believe we need a ruling to demonstrate that it's unconstitutional to execute an innocent person. What the h-e-double hockey stick- is going on in this country?
Ben Martin August 19th, 2009 8:55 am...........Well, the lack of true freedom of the press and the fear of some of our citizens to freely express themselves....such as writing, h-e-double hockey stick, instead of "HELL"......could have something to do with it.
Unfortunately, this article tells us nothing about the meaning of "actual innocence." (The headline writer needs a clue.) Obviously Scalia meant something by putting the word "actual" in quotes, but this says nothing about that. Anyone know?
If it doesn't make sense, it just doesn't make sense. If it is such a tiny technical point that nobody can understand it, it cannot be sufficient reason to murder an innocent man in cold blood.
Joe
ricotetrazini (August 19th, 2009 9:03 am): assuming the quotation is accurately punctuated, I (an attorney) know of no reason to put quotation marks around just the word "actual."
"Actual innocence" refers to innocence in fact, not just the absence of evidence establishing guilt beyond a reasonable doubt. The term is used in the context of a defendant who was convicted; the defendant may be actually innocent despite having been convicted. Actual innocence can be deduced when the known facts compel the conclusion that the defendant didn't do it, whereas a defendant could be found not guilty if the facts in evidence were insufficient to prove guilt beyond a reasonable doubt.
Accordingly, claims of actual innocence always arise in cases where evidence that was not admitted in a trial that resulted in conviction (recantations, newly discovered DNA evidence or witnesses, etc.) would compel a different outcome if admitted in a new trial. In contrast, most convictions that are reversed are reversed because the evidence that WAS admitted at trial either shouldn't have been, or didn't allow deduction of guilt beyond a reasonable doubt.
Scalia's statement is so nonsensical that it's probably a waste of time to try to figure out why he used the quotation marks this way (again, assuming he was accurately quoted).
Scalia is on the Supreme Court to force the law to obey big money, and cite the US Constitution as an excuse, no matter how convoluted the justification.
The mainstream media typically mix up the terms innocent and not guilty in legal affairs. They also frequently confuse the words prison and jail. Scalia used the word "fair" to describe a trial in which most of the evidence was coerced, and the DA and the police were working for the killer (albeit unknowingly in most, but perhaps not all, cases).
I'm not so sanguine as others seem to be about this. To me, the significant phrases are (my emphasis): "evidence that COULD NOT have been obtained at the time of trial CLEARLY ESTABLISHES petitioner's innocence"
Now, it seems to me that the district court could easily choose to say that the current testimony about police coercion etc COULD have been obtained back then --it wasn't, but it could have been.
And, of course, the recantations and lack of other evidence only casts great doubt on the conviction, it doesn't "clearly establish" Troy's innocence. That very instruction --that he has to present evidence that "clearly establishes" his innocence seems to turn on its head the hundreds of years of Anglo-American jurisprudence that say it's not up to the defendent to prove innocence, it's the prosecution's job to offer enough solid evidence that there can be no reasonable doubt about the defendent's guilt.
Mairead (August 19th, 2009 9:41 am): Good comment. From what I've seen, seven, not all, of the damning witness statements have been recanted or modified so that they don't support conviction as strongly as the original statements, if at all. New evidence that someone else did it seems limited.
To me, the case should turn on insufficiency of the evidence, not actual innocence. But the Supreme Court seems to have phrased their order using actual innocence, as if they expected there might be additional exonerative evidence.
Your point about burden of proof is well taken and collateral to the above. Especially in death penalty cases, to require evidence that clearly establishes actual innocence is very disquieting. Those who would execute Davis if he fails to establish actual innocence proceed on the theory that once you get convicted under the "beyond a reasonable doubt" burden and lose all direct appeals, you have to prove actual innocence, and even at that, it has to be with evidence that couldn't have been brought forward during trial. I think if a defendant can raise reasonable doubt in habeas corpus hearings, using any new evidence, that ought to be sufficient to at least reverse a death sentence.
[This comment was revised after its original posting.]
Ever since Colbert's emcee turn at Bush's White House Correspondent's Dinner, I've had a soft spot for Scalia. The camera went to Antonin once and he was so heartily laughing his ass off that I couldn't help but think he was at least human. Add to that the fact that he and Justice Ginsburg enjoy each other's company. Yet there is a really creepy aspect to this man's brain. As for Thomas... he's just an evil idiot.
Greg R August 19th, 2009 10:06 am......I've seen Hyenas laugh (likely on a higher evolutionary level than Scalia) and that did not make them human. What WILL make Scalia human is his resignation. Please submit it NOW!
"Legalism" - hiding one's conscience behind the letter of the law - prevails in conservative thought when living human beings are concerned.
That is the source of all the talk concerning whether the constitution should be followed literally or if it is a living "amendable" document.
Once again there is a possibility that a terrible precedent will be set in Georgia as the Georgia courts may very well hold up thier original conviction and perhaps still demand the execution of Troy Davis.
It is time for the citizens of Georgia to rise up and demand that the State does a complete overhaul of their entire judicial system beginning with the local law enforcement agencies and right up to the judges and legislators. This Kafkaesque joke referred to as "justice" in Georgia is an example of how corporate America is succesful in promoting their agenda; draconian laws, mandatory sentencing, commissions to judges (from corporate prison developers) for giving the accused excessive sentences, fear mongering and racism. It's tine that Georgia shakes this ugly reputation of being a backward, unjust and unfair place to live.
AFFIDAVITS RECANTING TESTIMONY OR STATEMENTS GIVEN IN THE TROY DAVIS CASE:
Kevin McQueen
The truth is that Troy never confessed to me or talked to me about the shooting of the police officer. I made up the confession from information I had heard on T.V. and from other inmates about the crimes. Troy did not tell me any of this... I have now realized what I did to Troy so I have decided to tell the truth... I need to set the record straight.
Monty Holmes
I told them I didn't know anything about who shot the officer, but they kept questioning me. I was real young at that time and here they were questioning me about the murder of a police officer like I was in trouble or something. I was scared... [I]t seemed like they wouldn't stop questioning me until I told them what they wanted to hear. So I did. I signed a statement saying that Troy told me that he shot the cop.
Jeffrey Sapp
I got tired of them harassing me, and they made it clear that the only way they would leave me alone is if I told them what they wanted to hear. I told them that Troy told me he did it, but it wasn't true. Troy never said that or anything like it. When it came time for Troy's trial, the police made it clear to me that I needed to stick to my original statement; that is, what they wanted me to say. I didn't want to have any more problems with the cops, so I testified against Troy.
Dorothy Ferrell
From the way the officer was talking, he gave me the impression that I should say that Troy Davis was the one who shot the officer like the other witness [sic] had ...I felt like I was just following the rest of the witnesses. I also felt like I had to cooperate with the officer because of my being on parole ... I told the detective that Troy Davis was the shooter, even though the truth was that I didn't see who shot the officer.
Darrell "D.D." Collins
After a couple of hours of the detectives yelling at me and threatening me, I finally broke down and told them what they wanted to hear. They would tell me things that they said had happened and I would repeat whatever they said. ...It is time that I told the truth about what happened that night, and what is written here is the truth. I am not proud for lying at Troy's trial, but the police had me so messed up that I felt that's all I could do or else I would go to jail.
Larry Young
I couldn't honestly remember what anyone looked like or what different people were wearing. Plus, I had been drinking that day, so I just couldn't tell who did what. The cops didn't want to hear that and kept pressing me to give them answers. They made it clear that we weren't leaving until I told them what they wanted to hear. They suggested answers and I would give them what they wanted. They put typed papers in my face and told me to sign them. I did sign them without reading them.
Antoine Williams
They asked me to describe the shooter and what he looked like and what he was wearing. I kept telling them that I didn't know. It was dark, my windows were tinted, and I was scared. It all happened so fast. Even today, I know that I could not honestly identify with any certainty who shot the officer that night. I couldn't then either. After the officers talked to me, they gave me a statement and told me to sign it. I signed it. I did not read it because I cannot read.
Robert Grizzard
I have reviewed the transcript of my testimony from the trial of Troy Davis... During my testimony I said that the person who shot the officer was wearing a light colored shirt. The truth is that I don't recall now and I didn't recall then what the shooter was wearing, as I said in my initial statement...
Michael Cooper
I have had a chance to review a statement which I supposedly gave to police officers on June 25, 1991. I remember that they asked a lot of questions and typed up a statement which they told me to sign. I did not read the statement before I signed. In fact, I have not seen it before today. ...What is written in that statement is a lie.
Benjamin Gordon
I just kept telling them that I didn't do anything, but they weren't hearing that. After four or five hours, they told me to sign some papers. I just wanted to get the hell out of there. I didn't read what they told me to sign and they didn't ask me to.
Thank you for this post.
I was recently in a bank behind the tellers windows doing some service work on their equipment when the teller next to me was held up.
I was not even aware of what was going on until AFTER it happened and they started putting up the yellow tape.
I remember glancing up once or twice while the suspect there but little of what he looked like was retained. I was not even certain of the color of his jacket or whether he had a mustache.
Eye Witness testimony is not all it cracked up to be and Coerced eye witness testimony is all too easy to obtain.
Anyone who trusts the STATE to kill people in death penalty cases is an idiot. The cops and the DA's are crooked as hell. They make up and plant evidence all the time. You cannot expect a jury to see through the lies and false evidence. Mostly poor people get the death penalty. that's reason enough to never impose it again.
Then there's Mumia, Leonard Peltier and all the others who have been framed and are on death row or in prison. Law enforcement officers who knowingly extract false testimony from witnesses so that cases can be quickly closed are criminals and should be prosecuted.
For killing a Georgia cop? No doubt a thug, thief and maybe killer himself.
The only time we should execute people is if they rape or kill children, and their DNA and own confession convict them.
Kill an adult.......do time.
Kill, rape a child, a baby........get turned into fertilizer.
FreeTroy.
Capital punishment should be stopped! I believe that a majority of Americans agree. It is just one more public issue about which opinion is shaped by media in which ownership is being progressively consolidated by fewer owners, who are financed by corporations with agendas the media is used to propagate. We need to reinstate the "Fairness Doctrine" and make it law. However, there is no way that a possibly innocent person should be executed. If Capital Punishment IS the law of the land, ANY grain of doubt should be investigated. There was an instance in Texas, I believe where DNA Could have exonerated a person, and he was executed anyway without first checking the DNA.
If pro-lifers were as vocal about the life ended by capital punishment as they were about the life ended by abortion, their voice added to the voices of anti-death penalty group would be undeniable. Troy Davis needs a new trial, with reliable witnesses, and decent legal help, and if they find that he had been railroaded previously, those who did it need to face criminal charges, and reparations need to be paid. Any time the state or fed wrongly convicts, reparations need to be paid. Any time a person is charged, and found not guilty, reparations need to be paid and legal fees reimbursed.
I have been an attorney for thirty years. Scalia is a scab on the face of justice, as is his toady, Thomas.
Scalia also wrote that Gitmo detainees aren't actually 'people.'
But he hunts with Dick Cheney, so obviously he's fair and impartial...
we should encourage many 'public servants' to go hunting with Dick...
so, if he's innocent, he would not only be allowed to live, he would be released, right?
alex 123 your at the wrong site. the racial hatred web site
is two ip sites down the street next to or owned by the fixed news clowns.i have a neighbor like you and he's one of the
most disliked people in town and we have some real winners.
so lighten up and try to unlearn all that cracker honkie
shit you learned from mommie daddy and the toothless
crazy old man next store! you know that corporations keep
people like you busy with racial bullshit while they have
their hand in your health care,wallet and every other
aspect of your life but your so fixated on hate that
you can't even notice. its a shame because there's so
much you could learn and share like food books culture
that you would be transformed forever in a truly
beautiful way that unless you live in a truly jethro
town could make you a cool guy to have around.troy
clearly has been railroaded in a typical southern
murder state way.its an eye for an eye till every
ones blind.these are the folks that" want their
country back" take it back please!
THE ONE EYED MAN IS TRULY KING HERE!
Don't feed the trolls...
I don't think it is correct for the author to state: "the Supreme Court has never ruled on whether it is unconstitutional to execute an innocent person." Herrera v. Collins 506 U.S. 390 (1993) is a Supreme Court of the United States opinion stating: "Our federal habeas cases have treated claims of 'actual innocence,' not as an independent constitutional claim, but as a basis upon which a habeas petitioner may have an independent constitutional claim considered on the merits, even though his habeas petition would otherwise be regarded as successive or abusive. History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency."
Good comment, and with respect, I don't give a shit about traditional remedies. If he is innocent LET HIM GO.
what's complicated about that?
Nietzsche (August 19th, 2009 11:35 pm) -- The real question was posed in a movie recently: Why does everything have to be so complicated? That's a deep philosophical question.
Oh man... Why did we ever leave the trees...
Short answer is that it doesn't have to be, but that also has consequences which I think most folks would rather avoid.
FREE TROY.
Readers might like to also consult an old column of mine discussing Justice Scalia's reasoning:
http://www.nolanchart.com/article4079.html
--
Dan Clore
Smygo: News & Views for Anarchists & Activists:
http://groups.yahoo.com/group/smygo
Eyrie of the Arch-Anarch:
http://www.nolanchart.com/author341.html
clore (August 19th, 2009 9:52 pm) -- I checked your article. Well done.
The issue here seems to revolve around the actual innocence standard. In saying the Davis habeas corpus hearing is a "sure loser," Scalia implies (I haven't read the entire dissent and so don't know if he made the point explicitly) that Davis hasn't got the evidence to establish actual innocence. This is a slightly different take from merely presuming the guilt of someone who's never been adjudicated at all, but it does show Scalia's readiness to presume the habeas attempt will fail before it's even attempted.
Scalia's comment about there never having been a holding that someone who establishes "actual innocence" in a habeas hearing can't be executed is just silly and further confirms your views about him.
I think the requirement to establish actual innocence, as opposed to just raising reasonable doubt, to avoid execution (which is what I understand is the law in this situation) should be changed. From what I've seen -- especially the witness statements presented elsewhere in this thread -- the man would probably not have been convicted had the evidence that has turned up been admitted at trial. At the very least, establishing this in a habeas hearing ought to result in reversing the capital punishment sentence, if not outright release, regardless of whether the evidence could have been presented at trial.
manuforte was herrera executed in this case?
jc clientelle considering that these cases are a result of
"southern justice" what would one expect in legal clarity
and justice being served? these people are clearly obsessed
with that wonderful christian concept "an eye for an eye"
these prosecutors clearly end up blind and are incapable
of taking care of the peoples business. one slight change
might change that thinking however. if an overzealous
prosecutor convicted an innocent person and they were sentenced
to death then if the condemned person was proved innocent then
the prosecutor would have to give their own lives because
of their actions. bet ya this would lead to a HUGE reduction
in capital murder cases.as yakof smirnoff said"america what
a country" couldn't have said it any better. simplicity at
its best.
Yes, Leonel Torres Herrera was executed in 1993 and his last words were: "I am innocent, innocent, innocent. Make no mistake about this; I owe society nothing. Continue the struggle for human rights, helping those who are innocent, especially Mr. Graham. I am an innocent man, and something very wrong is taking place tonight. May God bless you all. I am ready."
The courts claim that that once you are found guilty at trial you are no longer "innocent" and you have therefore lost the presumption of innocence. Higher courts are unwilling to "retry" a case preferring that the trial courts revisit the issue as it appears to have been ordered in the Troy Davis case. The problem with this system is that a biased judge is biased judge (they almost always are despite Sotomayor's assertions to the contrary). It is very unlikely a trial judge will overturn an earlier ruling.
The Supreme Court has suggested that clemency and commutation are the "traditional remedy" for claims of innocence based upon "new" evidence. However, these remedies are highly political. Politicians are mindful that the vast majority of Americans have consistently supported the death penalty. Until such time as the majority of Americans become aware of how our legal system works and who is actually being executed, there will be executions.
Hey you, yes, Yoo. Ever heard of Robespierre? He was one of the leaders of the reign of terror during the French Revolution.
He delighted in chopping the heads off people on the flimsiest evidence imaginable to 'Serve the cause of the revolution'. Thousands died, many no doubt innocent.
Guess how he died? Whining that the laws protecting the innocent had not been afforded him.
Guess what? His head hit the basket with the same thump as the others.
free speech radio news did a report on this yesterday, and interviewed Troy's sister at some length. She is a kinda amazing woman- she is very eloquent, very smart. she explained in vivid terms what it's been like for the family, with Troy on death row.
the reporter quoted Scalia's stupid opinion to her, and she said she thought that a person who gives his personal biased opinions in place of legal argument should not be allowed to serve as a judge.
she's right.
abuelo, I saw today's "Democracy Now"*, which devoted most of the program to Troy Davis. I don't know if it was the same interview, but I had exactly the same response as you did to Martina Correia, Troy's sister.
Ms. Correia is indeed a superb and compelling speaker on behalf of her brother. Just as you say, she told a complex story in clear and vivid detail, and didn't miss a beat.
Impressive and inspiring, and a much-needed breath of sweet virtue to clear the air of the Mephistophelian funk emanating from the likes of Antonin Scalia, and his familiar Clarence Thomas.
*http://tinyurl.com/mnh4je
· Yr Obd't Servant
How is 'actually innocent' different from 'innocent'?
Truthfully honestly, I think this guy belongs in China. There I understand, guilt or innocence is not the issue.
Correct procedure and traditional methods are what is important.
Although a diversion from the more pressing issues surrounding a man's life-or-death confrontation with truth and power, it may be worthwhile to some readers to peruse the lecture "Truth and Juridical Forms" by Michel Foucault which delineates very neatly the progress which truth has made in the form of the inquiry and examination.
It is by no means a uniform, ancient precedent that justice be served in relation to truth.
Perhaps it is at last time for the citizens of a nation aspiring to justice to concede that the process itself must be open to inquiry and examination.