New appeal by Troy Davis

By Lyle Denniston
on Jan 22, 2011 at 7:05 pm

NOTE: The two newly filed documents — an appeal (“jurisdictional statement”) and a petition for certiorari — are not yet available in an electronic format.  The blog will publish them as soon as they are in hand.

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The case of Georgia death-row inmate Troy Anthony Davis — procedurally complicated, but legally a simple claim of innocence — returned to the Supreme Court on Friday, with its fate uncertain.   The case remains on the Court’s docket (In re Davis, 08-1443), but the next step awaits the choice of the Justices.

Davis’s lawyers actually filed two pleas for review — a jurisdictional statement asking the Court to consider a Georgia federal judge’s rejection of the innocence claim, and a petition for certiorari, testing the Eleventh Circuit Court’s refusal to review the case.  While both lower courts concluded that Davis’s only option was to return to the Supreme Court with his plea, the case is so unusual that even that much is in doubt.

It has been 17 months since the Supreme Court, by an apparent vote of 6-2, transferred Davis’s original habeas petition (that is, one filed directly in the Supreme Court) to a District Court in Georgia — and to Judge William T. Moore — for a fresh look at the innocence claim.  The Court’s transfer order is here; the dissent to it is here.  At the time of that order, Justice Sonia Sotomayor took no part.  Among the members of the Court who supported the transfer was Justice John Paul Stevens, who has since retired and has been replaced by Justice Elena Kagan.

Davis had run out of legal options in lower courts when his lawyers, in May 2009, asked the Supreme Court for just such a transfer for further review in the District Court.   The petition told the Court: “Since Mr. Davis’ murder conviction, seven of nine state witnesses have recanted their trial testimony, and several new witnesses have idenified or implicated Sylvester ‘Redd’ Coles as the shooter.  Despite substantial new evidence of his innocence, no court has ever held a hearing to assess the scores of new witnesses that show Mr. Davis is innocent.”

The shooting to which he referred was the killing of an off-duty Savannah police officer, Mark Allen MacPhail, as he sought to assist a homeless man being attacked in the parking lot of a fast-food restaurant.  That occurred on August 19, 1989.   Davis was convicted in August 1991, and was then sentenced to death.

The habeas petition sought clarification of whether transfer was the proper course for consideration of his innocence claim, and whether he was procedurally barred from making that claim in federal court.

Last August, Judge Moore, in a 172-page opinion, drew two conclusions: first, it would be unconstitutional to execute an innocent person, and, second, Davis was not innocent — a ruling that would allow Georgia to proceed with his execution.  (The Supreme Court has never ruled explicitly that executing an innocent person would violate the Eighth Amendment ban on cruel and unusual punishment, but has hinted at it, most notably in Herrera v. Collins in 1993.)  A discussion on this blog of Judge Moore’s opnion can be read here.  That post includes a link to the lengthy opinion.

Once Judge Moore had ruled, the issue then arose as to the route to a new appeal.  The appeal options for Davis’s lawyers were discussed in earlier posts, here and here.  Those posts include links to the orders of the Eleventh Circuit Court and Judge Moore, both concluding that Davis’s could only go back to the Supreme Court.  Both refused to issue certificates allowing him to appeal to the Eleventh Circuit. 

Those rulings came last fall, and since then, Davis’s lawyers have obtained additional time from the Supreme Court to file a new appeal  (docket 10A476).  The appeal papers were due Friday, and were filed then.

Whatever the Court decides to do with the case, it seems unlikely that it could be resolved finally during the current Term — unless the Court opted to take on the case anew, and to put it on an especially fast track.  It has largely filled its docket for the remainder of the Term, but always has the option of adding another case and setting a schedule for its consideration.

The Court is proceeding largely in uncharted territory in this case.  Justice Scalia, in fact, has said that the Court had not taken the kind of step it did in transferring the case to Judge Moore in nearly 50 years.