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Supreme Court Orders New Look at Death Row Case

by Adam Liptak

WASHINGTON — The Supreme Court on Monday ordered a federal trial court in Georgia to consider the case of Troy Davis, who is on death row in state prison there for the 1989 murder of an off-duty police officer. The case has attracted international attention, and 27 former prosecutors and judges had filed a brief supporting Mr. Davis.

Troy Davis, shown at his 1991 trial, faces death in Georgia. (Savannah Morning News, via Associated Press) Seven of the witnesses against Mr. Davis have recanted, and several people have implicated the prosecution’s main witness as the actual killer of the officer, Mark MacPhail.

The Supreme Court’s decision was unsigned, only a paragraph long and in a number of respects highly unusual. It instructed the trial court to “receive testimony and make findings of fact” about whether new evidence clearly established Mr. Davis’s innocence. Justice Sonia Sotomayor, who joined the court this month, did not participate.

The decision set off a sharp debate between Justices John Paul Stevens and Antonin Scalia about Supreme Court procedure, the reach of a federal law meant to limit death row appeals and the proper treatment of claims of innocence.

“The substantial risk of putting an innocent man to death,” Justice Stevens wrote in a concurrence joined by Justices Ruth Bader GinsburgStephen G. Breyer, “clearly provides an adequate justification for holding an evidentiary hearing.” and

Justice Scalia, in a dissent joined by Justice Clarence Thomas, said the hearing would be “a fool’s errand,” because Mr. Davis’s factual claims were “a sure loser.”

He went on to say that the federal courts would be powerless to assist Mr. Davis even if he could categorically establish his innocence.

“This court has never held,” Justice Scalia wrote, “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.”

That question is indeed unresolved. In a 1993 decision, Herrera v. Collins, Chief Justice William H. Rehnquist wrote for the court that “we 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.” But the showing of supposed innocence in that case, Chief Justice Rehnquist said, fell short.

Mr. Davis reached the Supreme Court by an unusually direct route, filing an original writ of habeas corpus with the court rather than appealing from a lower-court ruling. The court has granted such petitions just a handful of times in the last century, and Justice Scalia said the court had not taken the “extraordinary step” of ordering a federal trial court to adjudicate such a petition from a state prisoner in nearly 50 years.

The move is especially troubling, Justice Scalia wrote, because “every judicial and executive body that has examined petitioner’s stale claim of innocence has been unpersuaded.”

In April, for instance, a divided three-judge panel of the federal appeals court in Atlanta refused to allow Mr. Davis to file a habeas corpus petition, invoking the Antiterrorism and Effective Death Penalty Act, a 1996 law that limits death penalty appeals.

“We cannot honestly say,” the majority said in an unsigned opinion, “that Davis can establish by clear and convincing evidence that a jury would not have found him guilty of Officer MacPhail’s murder” in light of all the currently available evidence.

Judge Rosemary Barkett, dissenting from the appeals court’s decision, complained of the 1996 law’s “thicket of procedural brambles.”

In addition to his other objections to Monday’s decision by the Supreme Court, Justice Scalia said it conflicted with the 1996 law.

But Justice Stevens said the law might not apply to habeas petitions filed directly with the Supreme Court or to inmates who can establish their innocence. Failing that, he continued, the law may be unconstitutional.

“It ‘would be an atrocious violation of our Constitution and the principles on which it is based’ to execute an innocent person,” Justice Stevens wrote, quoting Judge Barkett’s dissent.

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