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New Way to Resolve Actual Innocence Claims in Capital Cases?:
Today the Supreme Court took a step I don't think I have ever seen before: When faced with an actual innocence claim in a capital case that was filed as a result or an original habeas corpus case, the court transferred the case to the relevant district court and ordered the trial court to figure out the merits:
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. 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. JUSTICE SOTOMAYOR took no part in the constion or decision of these motions and this petition.
Justice Scalia and Thomas dissented. The dissent begins:  
Today this Court takes the extraordinary step—one not taken in nearly 50 years—of instructing a district court to adjudicate a state prisoner’s petition for an original writ of habeas corpus. The Court proceeds down this path even though every judicial and executive body that has examined petitioner’s stale claim of innocence has been unpersuaded, and (to make matters worst) even though it would be impossible for the District Court to grant any relief. Far from demonstrating, as this Court’s Rule 20.4(a) requires, “exceptional circumstances” that “warrant the exercise of the Court’s discretionary powers,” petitioner’s claim is a sure loser. Transferring his petition to the District Court is a confusing exercise that can serve no purpose except to delay the State’s execution of its lawful criminal judgment. I respectfully dissent.
Justice Stevens, joined by Breyer and Ginsburg, respond to Scalia and Thomas in a concurring opinion:
The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing. Simply put, the case is sufficiently “exceptional” to warrant utilization of this Court’s Rule 20.4(a), 28 U. S. C. §2241(b), and our original habeas jurisdiction. See Byrnes v. Walker, 371 U. S. 937 (1962); Chaapel v. Cochran, 369 U. S. 869 (1962).
Over at Crime & Consequences, Kent Scheidegger offers some perspective. It's worth reading the whole thing, but here is a taste:
And now, for something completely different...

The U.S. Supreme Court and its individual Justices have the jurisdiction to issue "original" writs of habeas corpus — "original" in the sense that the petitioner applies directly to the Supreme Court for relief, as opposed to applying to a lower court and then appealing the denial.

It was settled early, in a case related to the Aaron Burr plot, that the Supreme Court can issue such writs despite the Marbury limitation if the writ is appellate in practice even though original in form. That is, if the petitioner seeks a de facto review of a decision of a court, as opposed to the unilateral decision of the executive to lock him up, then he doesn't have to fit within the very limited category of cases where the Constitution gives the Court original jurisdiction.

The Court used this jurisdiction in the nineteenth century to review cases it had no other way to review, but the power pretty much gathered dust in the twentieth century and, until today, in the twenty-first. Term after term, every Monday orders list has had one-liner denials of original habeas petitions.

Only once in the time I have been doing Supreme Court work (since 1987) has the Court seriously considered an original habeas petition and written an opinion. That was in Felker v. Turpin, 518 U.S. 651 (1996), the first case on the constitutionality of the then-brand-new Antiterrorism and Effective Death Penalty Act of 1996. The Court did not resolve whether original writs in the Supreme Court would be subject to the same restrictions Congress placed on the usual district-court application, but it said it would be guided by them nonetheless. It denied Felker's petition, and he was executed shortly thereafter.

Another issue the Court has never resolved is whether a free-standing claim of actual innocence, unconnected to any constitutional violation at the trial, states a claim for relief in federal habeas corpus. The Court considered the question in Herrera v. Collins, 506 U.S. 390 (1993), but once it took a good, hard look at the facts, it realized that Herrera's innocence claim was such complete garbage that it would have been denied under any conceivable standard.

And now comes Troy Davis.
  It's interesting to note that eight Justices were on this, and two voiced a dissent. I wonder if the three liberal Justices who were on the case persuaded Kennedy to join them, setting up an awkward 4-4 showdown. If the court had split evenly, that would have set up an interesting question: What happens when a petitioner files an original case in the Supreme Court and the Court divides evenly? It's not like there is a lower court to affirm. Roberts and Alito went along, though, making this a 6-2 vote in favor of the transfer.
Steve:
How do you know it was a 6-2 vote, as opposed to 5-3?
8.17.2009 2:07pm
J. Aldridge:
Today this Court takes the extraordinary step...

So what is new here?
8.17.2009 2:13pm
Careless:
I'm trying to figure out if "to make matters worst" was intentional. Might have been.
8.17.2009 2:13pm
einhverfr (mail) (www):
If it was 4-4, they would have brought Sotomayor in as a tie breaker. They did the same thing with Alito once iirc.
8.17.2009 2:19pm
SuperSkeptic (mail):
Well, it would be good to have even more layers of confusion and delay in capital cases so that they are really NEVER resolved. Oh, and to make them even MORE expensive - on everybody! Good stuff. Good stuff.
8.17.2009 2:27pm
CVMe:
Careless: I had the same thought. My first thought was "Oh, a mistake." My second thought was, "Wait, it's Scalia, maybe it's on purpose." I then briefly wondered whether he really meant that the ensuing point made matters as bad as they could possibly be. I don't think so. In the worst case, the Court would grant habeas relief to someone who is already dead.

In other news, today's is the first set of Orders with Justice Sotomayor's name on them, albeit solely to note her nonparticipation.
8.17.2009 2:29pm
Jacob Berlove:
Justice Sotamayor did paritcipate in the decision to extend oral argument time in the campaign finance case.
8.17.2009 2:50pm
Bill reynolds (mail):
If the Court did split 4-4 on an original action then the claim for relief should be denied: there is no majority to change the status quo.
8.17.2009 2:52pm
MCM (mail):
Well, it would be good to have even more layers of confusion and delay in capital cases so that they are really NEVER resolved. Oh, and to make them even MORE expensive - on everybody! Good stuff. Good stuff.


Yeah, god forbid

the District Court comes to the same conclusion as the Georgia Board of Pardons and Paroles but, unlike that board, writes a thorough explanation of why. Then the case can go the way of Herrera.


It helps to read the article sometimes before getting into a huff.
8.17.2009 2:52pm
jaypher (mail):
In 2002, the Supreme Court rejected an application for an original writ of habeas corpus, albeit an application not predicated on innocence, by a 5-4 vote. (My memory is that although the four "dissented," the opinion suggests the four would "only"(?) have set the case for argument.) See In re Stanford, 537 U.S. 968 (2002(.
8.17.2009 2:53pm
Jacob Berlove:
Doug Berman speculates that it was the chief who decided to punt this to avoid the bad press to the court that might come otherwise.

Whatever the legal merits of this case, it is quite ugly. Seven witnesses recanted their testimony.
8.17.2009 2:55pm
Houston Lawyer:
So after the District Court reviews the matter and determines that his evidence is insufficient to overturn his conviction, does every other district court in the country need to do the same thing?
8.17.2009 3:02pm
Ed Unneland (mail):
I think Justice Scalia is right to point out that the Court should have kept the matter on its own docket if it wished to issue an original writ, perhaps by designating a senior district judge from another court as special master to conduct the fact-finding in the case (much as is done in when states sue each other under the Court's original jurisdiction). It seems to me that the Supreme Court could make more use of its original habeas jurisdiction (especially with the Guantanamo cases). Perhaps the use of special masters for fact-finding could be one way this could take place?
8.17.2009 3:09pm
SuperSkeptic (mail):
Whatever the legal merits of this case, it is quite ugly. Seven witnesses recanted their testimony.

what are the odds of seven perjury charges?

I read the article friend. I'm simply tired of courts making it harder to execute people because they do not like the death penalty. Some people gotta go, and good riddance.
8.17.2009 3:22pm
Redman:

Jacob Berlove:
Justice Sotamayor did paritcipate in the decision to extend oral argument time in the campaign finance case.


I'm waiting for her first published decision. It will be heralded for its nuances, its intellgence, its insight, its gravitas.

It will be a Sotomayorgasm.
8.17.2009 3:33pm
Mike& (mail):
From the dissent: "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 thatany claim based on alleged 'actual innocence' is constitutionally cognizable."

"The Constitution is not a suicide pact." Except when the state wants to kill an innocent citizen?

Seriously, this is some Hobbes type stuff. If the state can kill me - even when I am innocent - how can the Constitution have any moral authority?
8.17.2009 3:44pm
MCM (mail):
I read the article friend. I'm simply tired of courts making it harder to execute people because they do not like the death penalty. Some people gotta go, and good riddance.


I wasn't aware that Roberts and Alito "didn't like the death penalty". Maybe they're legitimately concerned by that whole "let's try to avoid executing innocent people whenever possible" thing.
8.17.2009 3:48pm
Steve Vladeck (mail):
Orin -- The Court's practice, at least in the dozens of "original" war crimes habeas cases filed after World War II, was to treat a 4-4 split as a denial of the petition. (I discuss these cases at some length in my article on Hirota -- also an original habeas case.) The reason for the 4-4 split was the absence of Justice Jackson, who recused from all of these cases because of his role at Nuremberg.

But the Court wasn't clear then (and has never been clear since) on whether the 4-4 denial is because of the even division of the Justices, or because it takes five votes to grant an original habeas petition...
8.17.2009 3:52pm
David M. Nieporent (www):
Seriously, this is some Hobbes type stuff. If the state can kill me - even when I am innocent - how can the Constitution have any moral authority?
When you're convicted, you're not innocent, legally.

What you mean is, "If the state can execute me after I have been convicted of murder beyond a reasonable doubt -- even though I continue to claim that I didn't do it, and some people believe me -- how can the constitution have any moral authority?"

And the question answers itself: you're entitled to due process. You're not entitled to be set free just because you convince some people other than the jury that you didn't do it.
8.17.2009 3:55pm
Mike& (mail):
When you're convicted, you're not innocent, legally.

That would be a cute point, except that it ignores what is actually being discussed. The terminology being used is actual innocence - which means factual innocence.

A person can be legally guilty, but factually innocent. Legal guilt simply means that a person has been convicted in court. It does nothing to resolve the ultimate epistemological question of guilt or innocence.

Thus, your point was a red herring.

What you mean is, "If the state can execute me after I have been convicted of murder beyond a reasonable doubt -- even though I continue to claim that I didn't do it, and some people believe me -- how can the constitution have any moral authority?"

Is that really what's going on in this case? Are you unaware of the actual allegations of the habeas petition? Or are you being intellectually dishonest? If the latter, why be disingenuous? You win neither fame nor glory nor money by doing so.

Again, the allegation is that the petitioner was factually innocent.

I have no opinion on the factual question of guilt or innocence. I do have an opinion on the validity of an interpretive method that would require a judge to do nothing when a person is actually innocent.
8.17.2009 4:06pm
Johnny Canuck (mail):
David M. Nieporent, if you were personally convinced of the actual innocence, would you still say OK for state to execute?
ie is it you are skeptical of the gullibility of those convinced, or you have no problem with executing those who have had due process, even if they are (in your opinion) actually innocent.
8.17.2009 4:13pm
PLR:
In 2002, the Supreme Court rejected an application for an original writ of habeas corpus, albeit an application not predicated on innocence, by a 5-4 vote. (My memory is that although the four "dissented," the opinion suggests the four would "only"(?) have set the case for argument.) See In re Stanford, 537 U.S. 968 (2002).
Aren't four votes enough to set a case for argument?
8.17.2009 4:25pm
Kenvee:

The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing. Simply put, the case is sufficiently "exceptional" to warrant utilization of this Court’s Rule


Given the number of actual innocence claims filed every year, how is that really called an "exceptional" circumstance?

I like how the response doesn't actually address the point the dissent was making, namely the Supreme Court punting the ball. If the case is exceptional enough to exercise original jurisdiction, why push it off to another court?
8.17.2009 4:38pm
David M. Nieporent (www):
David M. Nieporent, if you were personally convinced of the actual innocence, would you still say OK for state to execute?
I would certainly argue that the governor (or clemency board or whomever) should pardon the convict. But I can't argue that my strong belief that someone is innocent states a ground for appeal.
8.17.2009 4:44pm
David M. Nieporent (www):
That would be a cute point, except that it ignores what is actually being discussed. The terminology being used is actual innocence - which means factual innocence.

A person can be legally guilty, but factually innocent. Legal guilt simply means that a person has been convicted in court. It does nothing to resolve the ultimate epistemological question of guilt or innocence.

Thus, your point was a red herring.
Not in the least. My point was precisely to highlight the difference between these. Courts do not deal in epistemological questions, but in legal questions. The only legal finding is that he's guilty.

Of course, to the extent one can find a legal error, that's a different story. But "I disagree with the verdict" is not legal error, and all a claim of "actual innocence" is is a claim that one disagrees with the verdict.
8.17.2009 4:48pm
Hugh59:
Just about every individual convicted of a crime claims that he or she is "factually innocent." Often what they really mean is that they were justified in taking the actions that led to them being charged with the crime.

I've done criminal prosecution and criminal defense. I preferred the prosecution side of the aisle because the defendants almost always were unbelievably guilty.
8.17.2009 4:48pm
Johnny Canuck (mail):
When a number of witnesses, whose testimony was necessary for the conviction, recant their testimony, doesn't this imply either they are operating under some current threat, or that it isn't appropriate to rely on their testimony?
8.17.2009 4:58pm
Steve:
Just about every individual convicted of a crime claims that he or she is "factually innocent."

Of course they do. So if new evidence clearly establishes that their claim is correct, should we just let them fry anyway because most claims of innocence are false?
8.17.2009 4:59pm
Kovarsky (mail):
orin,

someone may have answered this question already, but the petitioner loses. this happened a bunch in the post WWII german-theatre cases. basically, a bunch of the people convicted atthe european tribunals (nuremburg) sought original habeas relief in the supreme court.

justice jackson had to recuse because he was the lead prosecutor in those cases, and (i'm simplifying procedurally here) the court was effectively divided 4-4 on whether to hear the cases. in those instances, the petitioner lost.

jackson does not recuse in hirota, which was a pacific theatre tribunals case, and the court ends up basically saying there's no jurisdiction. the problem is that it's not entirely clear whether the court was saying there is no article III habeas jurisdiction, or whether the supreme court lacks original habeas jurisdiction over these cases. most people think it's the former, but it's open to a little debate.

as for the transfer order, if you look at the pre statutory-certiorari cases (statutory cert was what killed original habeas as a vehicle for review of criminal cases) there's nothing that unusual about doing it this way - i.e. using the habeas authority to transfer the case to the district court in which the offender is confined.

as a personal note, i'm in the middle of compiling a database involving the treatment of original habeas petitions over the last 20 years for my next article, so this is a fairly seismic event.
8.17.2009 5:04pm
DennisN (mail):
Mike&:

If the state can kill me - even when I am innocent - how can the Constitution have any moral authority?


The trick is setting the threshold for determining the actuality of innocence.

It's a standing joke that "prisons are full of innocent people." Claims of actual innocence are thick on the ground, and most of them are crap. OTOH, we have had a flurry of cases where DNA evidence, not available at the original trial, excluded the convict as a possibility.

One standard, mentioned in the decision at hand, is "evidence that could not have been obtained at the time of trial." That one, I think, is nearly a no brainer. There is arguably a line ("Arguably" because we'll argue about it. ;-) ) between that an accepting every "I din' do it," claim. I believe the hurdle should be high, because the trial court, as a finder of fact, ought to be respected.
8.17.2009 5:05pm
David M. Nieporent (www):
When a number of witnesses, whose testimony was necessary for the conviction, recant their testimony, doesn't this imply either they are operating under some current threat, or that it isn't appropriate to rely on their testimony?
Courts do not give much weight to post-trial witness recantation, for (what I think are) obvious reasons. There's a big difference between a new witness coming forward (who couldn't have been discovered at the time) and someone saying, "Ha, ha, fooled you. You shouldn't have believed me because I was lying."
8.17.2009 5:15pm
Leo Marvin (mail):
If you execute enough people, some will inevitably be innocent. To death penalty supporters, that's tolerable. To opponents, it's not. And to some opponents like me, it's determinative of our opposition.
8.17.2009 6:14pm
Leo Marvin (mail):
If you execute enough people, some will inevitably be innocent. To death penalty supporters, that's tolerable. To opponents, it's not. And to some opponents like me, it's determinative of our opposition.
8.17.2009 6:14pm
Leo Marvin (mail):
Don't know why that double posted. Sorry.
8.17.2009 6:14pm
PatHMV (mail) (www):
Johnny Canuck.... Not necessarily. I haven't explored the details of this particular claim, but I have reviewed cases where similar claims were made. Very often, when you look at what the defense attorney now labels a recantation, you see that in fact the witness has not really recanted anything at all, but instead has merely asserted somehow or other that they think the individual is innocent (usually in the abstract, without addressing specific factual questions or prior statements by that witness).

There are several motivating factors for this. One is that quite often the witnesses were fellow criminals with the defendants. Perhaps some of them cut deals with the prosecution which helped lead to the conviction. "Recanting" the testimony, long after the fact of trial, is done out of friendship or loyalty or whatever to the defendant. Another is that the witnesses may belong to a community which in general disapproves of the death penalty. They may express their opposition and try to prevent it by "recanting" their testimony.

Participating in death penalty cases can take a toll on everybody who participates in it. Many people involved can end up feeling some type of negative emotion stemming from their participation in a process leading to the execution of a human being. Defense lawyers feel guilt that they weren't able to get their client spared. Witnesses may believe that the penalty is inappropriate, but feel powerless at trial to stop it, because their role was limited to factual testimony. When the execution date approaches, those emotions sometimes lead them to take unwise actions to try to, basically, use any means necessary to stop the execution.

As a matter of legal theory, I believe that certainly actual innocence would provide legal grounds for a habeas action to halt the execution and overturn the conviction. Any other legal principle would be horrific. To say "I, a judge, know for an absolute fact that X is innocent, but I will still allow his execution to occur simply because 12 men were convinced 15 years ago that he was guilty" would be barbaric.

But in practice, as others have noted, claims of actual innocence are thick on the ground and very hard to verify, and few judges are ever able to know for an absolute fact that X is truly factually innocent. Thus, the courts should grant relief on such grounds exceedingly rarely.
8.17.2009 6:21pm
cooldude:
If there is merit to this guy's actual innocence claim, the Governor had better pardon him soon. Imagine the flood of actual innocence claims if the ultimate result here is that such claims are cognizable upon federal habeas review.
8.17.2009 6:36pm
MCM (mail):
If there is merit to this guy's actual innocence claim, the Governor had better pardon him soon. Imagine the flood of actual innocence claims if the ultimate result here is that such claims are cognizable upon federal habeas review.


Not really. There's been a huge drop in the number of death sentences in the past decade. If anything legislatures would be deterred from maintaining the death penalty for more crimes, and judges could be deterred from issuing it.
8.17.2009 6:43pm
Pepper:
I am not an attorney, so forgive my question: why doesn't 28 U.S.C. § 2241(e)(1) violate the Suspension Clause?
8.17.2009 7:54pm
tbaugh (mail):
The writ referred to in the Suspension Clause is not the statutory writ, but the "great writ," the office of which is to inquire into the cause of detention had without judicial process (such as by the setting of bond or conviction). The "statutory" writ concerning inquiry into federal issues regarding state convictions--post-conviction inquiries---need not exist at all.
8.17.2009 8:16pm
Mark30339:
See the Economist:


IN 1989 Troy Davis and two friends were hanging out in Savannah, Georgia. They saw a homeless man leaving a shop and started to bully him. An off-duty policeman heard the commotion and intervened; he was shot and killed. Though no gun was found, the state produced nine witnesses who said that Mr Davis was the culprit. He was convicted of the murder and sentenced to death in 1991.

It seemed a straightforward case. Americans particularly revile cop-killers and here was a parade of people saying that Mr Davis had shot a policeman. But after the trial, no fewer than seven of the nine recanted. Several of them said they had felt subjected to pressure by the police. Others thought someone else was the killer. The homeless man said he could not remember, and anyway he had been drinking.

. . .

Even people who support the death penalty are crying foul. William Sessions, a former head of the FBI, says that because there was no physical evidence in the case, Mr Davis deserves another day in court. He may have killed a policeman, but Georgia needs to do more to prove it.
8.17.2009 8:55pm
Dave N (mail):
There is confusion among many non-habeas practitioners between "actual innocence" as a substantive versus a procedural finding. They are two distinct doctrines. The Supreme Court has refused to find that "actual innocence" is a substantive ground for habeas corpus relief (Herrera v. Collins). However, "actual innocence" CAN be used to overcome a procedural default (Schlup v. Delo).
8.17.2009 8:55pm
byomtov (mail):
One is that quite often the witnesses were fellow criminals with the defendants. Perhaps some of them cut deals with the prosecution which helped lead to the conviction.

PatHMV,

Isn't all this just more reason to consider eyewitness testimony unreliable? In this case, the witnesses were, at least minimally, suspects in a fatal shooting. Lots of incentive to finger someone else, especially if you can get a deal (i.e., bribe) from the prosecutor.

Are you willing to execute someone based solely on eyewitness testimony?
8.17.2009 9:48pm
ArthurKirkland:
Does Justice Scalia clasp his hands to pray to his God with the same hands that scoff at "stale claims of actual innocence" and at the argument that the Constitution recognizes a right to press a meritorious claim of actual innocence? If he does, the only prayer that makes sense is a prayer that the God he believes is listening doesn't exist.

No human-created or -operated system is infallible. Witnesses lie or are mistaken. Law enforcement personnel lie, corrupt or invent physical evidence, arrange or tolerate perjury. If a scientific advance, a suppressed element of evidence, newly discovered evidence or another factor can establish innocence, I see no moral basis to permit efficiency, a general dislike for defendants, fealty to process, or any other factor to overcome innocence.

Any objection, if a defendant is demonstrated to have been innocent, to convicting the law enforcement personnel -- police officers, laboratory technicians, lawyers, paralegals, secretaries -- who participated in the prosecution of murder, false imprisonment, assault or another relevant charge?
8.17.2009 9:56pm
ArthurKirkland:
If Justices Scalia and Thomas are correct, in objecting to an effort to refrain from killing a blameless citizen, that this is the 'first instance in 50 years in which the Court has acted in this manner, is this the first practical evidence of the benefit of Justice Sotomayor's arrival as a Justice -- even in a case in which she 'did not participate?'

What else has changed lately?
8.17.2009 10:00pm
GA Onlooker:
cooldude &others, the Governor in GA has no power to pardon anyone. That is all done by the Board of Pardons &Paroles. They alone hold the executive power of clemency.
8.17.2009 10:05pm
ReaderY:
The principle difference between applying for an original writ of habeas corpus and applying for a writ of certiorari to review proceedings is that an original writ requires the votes of 5 Justices, while a certiorari petition requires the votes of 4. For a closely divided court, this difference can be major.

The court has many discretionary powers to address an original writ. Perhaps it might better have appointed a special master.
8.17.2009 10:20pm
ReaderY:
The principle difference between applying for an original writ of habeas corpus and applying for a writ of certiorari to review proceedings is that an original writ requires the votes of 5 Justices, while a certiorari petition requires the votes of 4. For a closely divided court, this difference can be major.

The court has many discretionary powers to address an original writ. Perhaps it might better have appointed a special master.
8.17.2009 10:20pm
Kovarsky (mail):
readerY,

the principle difference in this case is that there is no cert jurisdiction over 2244(b)(2) denials of applications of authorization for successive habeas petitions. that jurisdiction is stripped in 2244(b)(3). the only way to get a hearing on a successive claim if you get denied authorization is to go to original habeas.

this wasn't really a strategic decision to seek a remedy that allowed more discretion. this was a petition of necessity, because there's no cert review. i'm sure davis petitioned for mandamus too.

the court actually has never really used special masters on original habeas cases. special masters are for cases of original jurisdiction, but original habeas jurisdiction is (paradoxically, i know) actually appellate.
8.17.2009 10:47pm
Ricardo (mail):
Courts do not give much weight to post-trial witness recantation, for (what I think are) obvious reasons. There's a big difference between a new witness coming forward (who couldn't have been discovered at the time) and someone saying, "Ha, ha, fooled you. You shouldn't have believed me because I was lying."

The issue is that someone was convicted entirely on the basis of eyewitness testimony. Take away the eyewitness testimony, you still have the defendant's physical presence at the crime scene but you also have the physical presence of other potential killers. There is no physical evidence.

Even under ideal conditions, eyewitness testimony is less than completely reliable. Witness recantation may be given little weight by the courts, but that does not mean it should be given no weight at all, particularly when the witness testimony in question is the entire case.
8.17.2009 10:49pm
David M. Nieporent (www):
No human-created or -operated system is infallible.
Sure, but I don't see why this cuts the way you think it does. No matter how much process we give, we're not guaranteed to get an accurate result.

Witnesses lie or are mistaken. Law enforcement personnel lie, corrupt or invent physical evidence, arrange or tolerate perjury. If a scientific advance, a suppressed element of evidence, newly discovered evidence or another factor can establish innocence, I see no moral basis to permit efficiency, a general dislike for defendants, fealty to process, or any other factor to overcome innocence.
Perhaps not, but courts are supposed to issue decisions with a legal basis, not a "moral basis."
8.17.2009 10:52pm
Sum Budy:
David --

Alan is convicted of murdering Bob at a restaurant. Eyewitnesses Carl, Dwight, Evan, and Fran all testify about Alan's guilt.

One month before Alan's execution, the restaurant owner discovers a security videotape showing Carl, Dwight, Evan, and Fran all ganging up on bob and murdering him. Alan is not seen in the video.

Forensic examination shows that the videotape has not been tampered with.

Is it safe to say that under Scalia's view of the law, Alan would be a dead man despite the very convincing new evidence that he is innocent? If you agree that Scalia has correctly interpreted the Constitution (and/or the law) as it currently stands, would you support an amendment to prevent Alan's execution under these circumstances?

Or, perhaps it's just easier to say that the law actively try to prevent the execution of an innocent man.

(Sumbudy, stating no opinion on the guilt or innocence of Troy Davis.)
8.18.2009 12:21am
Dave N (mail):
Sumbudy,

I suspect Scalia would say that of course Alan should not be executed--but it is not the court's job to rule that he was actuslly innocent--but rather that is the job of the state's pardoning authority, whether it be the Governor, or in Georgia's case, the Pardon's Board.
8.18.2009 12:37am
Shawninphx (mail):
I suspect this has to do with the political nature of the pardoning board and the state's courts. Both are political in nature (the board is appointed and judges in the state are elected).

I believe that Robert's and Alito probably agree in the guilt of the defendant, but are reluctant to have political appointees/elected officials make the call. It's pretty obvious that overturning a death penalty verdict is politically difficult. I think Roberts and Alito were being aiming to have this removed from elected/appointed officals hands so it would not be viewed as political.

Makes sense to me.
8.18.2009 3:57am
Wahoowa:
Sum Budy:

I would disagree with Dave N--in the situation you describe I believe Scalia would support a new trial/rehearing/whatever. What you have there is new evidence not available at trial. That is a different case then what we have here, where witnesses just want to change the testimony they actually gave at trial. I think that's a distinction that's relatively well-settled in law, and the question is not really whether a claim of actual innocence is congnizable but rather whether due process requires a new hearing when potentially excuplatory evidence unavailable at the first trial is newly brought to light.
8.18.2009 7:59am
MartyA:
This guy's case sounds a lot like the Philadelphia cop killer, Mumia Abu-Jamal. Mumia, of course, is a darling of the world's extreme ultra left. Didn't the court, last year, terminate Mumia's appeals, at least on a federal level? How does this case contrast?
8.18.2009 10:49am
D.A.:
Johnny Canuck,
How do you know the witnesses weren't under threat when they gave the testimony that led to conviction?
8.18.2009 10:52am
Johnny Canuck (mail):
"How do you know the witnesses weren't under threat when they gave the testimony that led to conviction?"

I don't, although would think that in their recantation they would probably, if it were the case, explain that is why they testified differently to what they are now claiming to be the truth.

My original question:

"When a number of witnesses, whose testimony was necessary for the conviction, recant their testimony, doesn't this imply either they are operating under some current threat, or that it isn't appropriate to rely on their testimony?"

If there original testimony was induced by threat, actual or perceived, that would seem to me to be a big part of why it isn't appropriate to rely on their testimony.

Those who participate in the process -as prosecutors, defence lawyers and Judges, seem to have their perspective corrupted from a search for truth to a question of was the 'game' played in accordance with the rules.

Particularly for judges, perhaps there needs to be an amendment to their oath of office to remind them of their real (at least in my opinion) purpose.
8.18.2009 11:33am
Prosecutorial Indiscretion:
Any objection, if a defendant is demonstrated to have been innocent, to convicting the law enforcement personnel -- police officers, laboratory technicians, lawyers, paralegals, secretaries -- who participated in the prosecution of murder, false imprisonment, assault or another relevant charge?

Not if they intentionally falsified evidence or otherwise intentionally misled the jury. In that case, anybody involved in the fraud on the legal system should be vigorously prosecuted and severely punished.

But if it's just a matter of punishing people for contributing toward a bad outcome, your proposal is nuts and, in whatever bizarre universe would put it into practice, result in a collapse of domestic order, or at least of the criminal legal system. It's also facially incomplete in light of the absence of jurors and judges. The prosecution prosecutes, it does not convict or sentence. Even in the context of a ridiculous theory,going after the secretaries for a wrongful conviction when they weren't even in the courtroom while leaving the judge and jury unmolested reflects a bizarre and irrational bias against the prosecution.
8.18.2009 12:58pm
DennisN (mail):
Prosecutorial Indiscretion:

Any objection, if a defendant is demonstrated to have been innocent, to convicting the law enforcement personnel -- police officers, laboratory technicians, lawyers, paralegals, secretaries -- who participated in the prosecution of murder, false imprisonment, assault or another relevant charge?



Not if they intentionally falsified evidence or otherwise intentionally misled the jury. In that case, anybody involved in the fraud on the legal system should be vigorously prosecuted and severely punished.


I'd go one step farther. The penalty should be at least as severe as the maximum penalty the accused would be subject to.

Your second paragraph is so obvious I'll not comment other than saying, "Roger that."
8.18.2009 2:10pm
einhverfr (mail) (www):
Hmmm... It seems to me that there are two sides to this argument.

The first says that the effective operation of our legal system is so important that we don't really care about factual innocence claims, and that the jury is the only authority in the matter. But this isn't entirely right. We allow presidential pardons as an Article 2 power, for example, so if you can convince at least one person (the President) you are factually innocent after the fact, pending execution you can go free. Similarly, courts can and sometimes do offer directed verdicts of "not guilty" after the fact (Lori Drew case, for example) so courts have this power too.

The second side seems to hold that any substantial risk of executing an innocent indiviual must require a new hearing. But this isn't the case either. For example, arson forensics have come a long way in the last few decades and there are individuals serving life sentences based on what is now acknowledged to be faulty forensic analysis of burned buildings. Every time the science improves sufficiently to cast doubt on a segment of past convictions, do we give all those convicted a new trial? That can't be right either.

It seems to me that the efficient and proper operation of our legal system requires a certain level of judicial discretion in addressing specific cases, and habeas petitions are perhaps a good example of that. I further think that having de novo review all the way up to the top for habeas petitions when they are denied isn't a bad thing.

So this ruling doesn't bother me at all but I don't really feel I fall on either side of the more extreme approaches to this debate.
8.18.2009 3:32pm

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