If it were an art to overcome heresy with fire, the executioners would be the most learned doctors on earth.
— Martin Luther, To the Christian Nobility of the German States
Some innocent dead men walking can now take hope. Two cases have been decided in the last four months that suggest that in the United States, at last, it may actually make a difference whether or not the prospective visitor to the death chamber is guilty or innocent. A New York case decided in November may give some guidance to other courts considering the question, if not to the Clarence Thomas-Antonin Scalia duo for whom innocence is less important than finality. The two friends most recently expressed themselves in the case of Troy Anthony Davis.
Troy was convicted by a jury of murdering an off-duty police officer in Savannah in 1989 and sentenced to death. Following his conviction some of the witnesses against him recanted their testimony and implicated the prosecution’s chief witness. After his state remedies to obtain reversal of his conviction were exhausted, Troy took the unusual step of filing an original writ of habeas corpus in the U.S. Supreme Court hoping to get relief on the grounds that he was in fact innocent as shown by evidence that was unavailable at the time he was convicted. Over the dissent of Messrs. Thomas and Scalia the Justices referred the case to a Federal District Court and ordered it to “receive testimony and make findings of fact” as to whether the proffered evidence establishes Troy’s innocence.
The Scalia-Thomas duo objected to the referral. They wanted finality irrespective of Troy’s guilt or innocence. Ever a stickler for procedural propriety, Justice Scalia observed at the outset of his objection to the Court’s action, that it had been almost 50 years since the Court had favorably acted on a petition like Troy’s. He did not stop there, however. He explained that the Antiterrorism and Effective Death Penalty Act of 1996 imposed limits on the ability of Federal Courts to release Troy because that Act says “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings” unless the judgment offended (my words-not the statute’s) federal law in a manner that Justice Scalia believes Troy’s conviction clearly did not. He believes that an “actual-innocence claim” asserted by a “dead man walking” should be treated no differently from any other claim that asserts a conviction was wrongfully obtained because of, for example, a minor procedural error. To prove he is not some nut off in right field, Justice Scalia observed: “This 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. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.” The results of Troy’s referral to a Federal District court are not yet known. What is known is that people in New York are considerably more concerned with claims of “actual innocence” than the Scalia-Thomases.
In the case of The people of the State of New York against Fernando Bermudez Justice John Cataldo of State Supreme Court in Manhattan said that in considering whether to reverse a conviction he would, among other things, consider whether Mr. Bermudez had “demonstrated his actual innocence by clear and convincing evidence.” Mr. Bermudez spent 18 years in prison for a murder Justice Cataldo concluded he had not committed. In Judge Cataldo’s 73-page opinion he identified several errors committed by the lower court that by themselves, he said, would warrant a new trial. He concluded, however, by saying the defendant has “demonstrated his actual innocence” by clear and convincing evidence and therefore vacated Mr. Bermudez’s conviction.
Commenting on Judge Cataldo’s ruling, New York State Senator Eric Schneiderman said the ruling “dramatizes the need to ensure that actual innocence is established as a legitimate ground for a hearing.” Senator Schneiderman is one of the sponsors of legislation introduced in the New York State Senate known as the “actual innocence justice act of 2009.” It says a motion to vacate a judgment would be appropriate if the defendant is “actually innocent of the crime or crimes of which he or she was convicted.”
As Mr. Bermudez left Sing Sing in November he was quoted in the New York Times as saying: “This is a day for other people to have hope that justice is possible in this country.” If Justice Scalia were asked to comment on Justice Cataldo’s ruling, on the other hand, he would lament the sacrifice of finality on the altar of innocence.