Thomas Nephew at newsrack thinks there may be more hope in the Supreme Court’s language than I do, and he has a point.
To repeat the charge to the district court, the Supreme Court ruling states that “[t]he 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” (emphases added).
It seems to me this is a more hopeful situation than either Mick Arran or Robert (in another comment at the prior post) suppose it to be. While the framing of the question would seem to turn the usual presumption of innocence on its head (as Robert notes), it at least doesn’t necessarily change the definition of legal innocence, which remains “guilt not proven beyond a reasonable doubt.”
On that score, Mick suggests that “[w]hether a new trial will be granted, then, rests on whether or not the judge will consider the recantation of potentially perjured testimony on the part of witnesses coerced by police to be “new evidence”.” But while Mick is right that “the only new evidence is that the old evidence was bogus,” … that might be good enough. That’s because the Court didn’t actually ask for “new” evidence, it asked for evidence that couldn’t have been obtained at the time; absent mind reading skills, of course perjured testimony can’t be recognized as such at the time.
So it seems to me a district court may reasonably follow this decision’s instructions and find that seven of nine pillars of the prosecution’s case have been washed away, establishing reasonable doubt and legal innocence; the Court seems to emphasize that in this case, at least, it is incorrect to “[assume] as a matter of fact that petitioner Davis is guilty of the murder of Officer MacPhail … even though seven of the State’s key witnesses have recanted their trial testimony.” But enough of my Perry Mason impression. For better informed analyses of the legal implications, see publius and Lee Kovarsky (at ‘Obsidian Wings’), bmaz (at ‘emptywheel’), Josh Patashnik at The New Republic, and/or Lyle Denniston (at ‘SCOTUSBlog’).
I’m not now saying – and wasn’t originally – that Thomas’ interpretation is inaccurate. It isn’t. But I should perhaps have made myself clearer for those living outside Georgia: it isn’t the legal meaning of the language I’m concerned with so much as I am concerned about the way it can be interpreted by people looking for an excuse to end this case.
Under normal circumstances in a rational legal environment, Tom’s interpretation would be accurate and his hope reasonable. But Georgia isn’t rational. I’ve been living here for over a year, in Savannah where the murder took place, and the pressure to let the police off the hook is intense in the white community. Especially the white political community. From the black community (and a small part of the white community) comes the intense countervailing pressure that has pushed the case this far, but for it to go any further means a new trial and that means the charges of police intimidation and coercion have to be made public.
The white community, political and legal, doesn’t want that, is determined to block it. In fact Savannah’s black mayor and most of the town officials (who are black as well) don’t want it either. Everybody is looking for a way out but there isn’t one. We are down to only two choices: either a new trial goes ahead with its attendant embarrassment over shoddy police work and prosecutors who railroaded an innocent man, or we kill the innocent man, bury our consciences, and wait for the backlash to blow over. I don’t have to tell you which of those two is the reigning favorite among the PTB.
So what I was mostly writing about was the possible interpretation that would provide the Georgia District Court once again, as all Georgia courts have had consistently throughout this process, with an excuse to uphold the old conviction and deny a new trial. Unfortunately my fear was given some weight a couple of days ago by DA Larry Chisholm’s public response.
Monday, Chisolm issued a statement in response to the US Supreme Court’s decision:
“In a very unusual move, the United States Supreme Court has transferred the petition of Troy Anthony Davis to the local federal court.
The Supreme Court further instructed the local federal court to receive testimony and make findings of fact on whether there is evidence that was not presented at the trial 19 years ago, that clearly establishes that Troy Anthony Davis is innocent.
The citizens of Chatham County should be clear in their understanding that this is not a new trial of the case before a jury. The hearing of this case before a federal judge affords Troy Davis the opportunity to have any evidence that supports his innocence claim that was found after the trial to be heard all at one time in court. As a result, the case could continue to execution, be sent back for re-trial or appealed once again. We do not expect a quick outcome in any event.
The District Attorney’s Office has no public comment on the substance of the Court’s ruling or the facts of this case until the federal courts have concluded their hearings and appeals. The State will be represented in the local federal hearing by Georgia State Attorney General Thurbert Baker and his office.”
The bolded section is clearly an attempt to limit the Supreme Court’s instructions to its most restrictive interpretation: new evidence not presented at the original trial – exactly what I was afraid of.
McPhail’s family have made it fairly plain that they don’t think Troy is innocent and further that they don’t care whether he is or not. They want somebody to pay for Mark’s death so they can end this painful charade and they don’t much care who it is. Revenge is an understandable desire on the part of a victim’s family but it is what the law was created to interrupt. Unfortunately, the South is OT Biblical and “an eye for an eye” is much more influential and powerful than “let he who is without sin cast the first stone”. Political careers may be on the line if Davis gets a new trial that will not be endangered if he is executed.
Having said that, I don’t mean to suggest there is no hope. There is. The irony here is that all the major players at the time of McPhail’s murder have moved on. The Savannah Police Dept is, so I’m told, 75% new recruits hired in the last 2 years, many of them black. There has been a major turnover in the Chatham County Prosecutor’s Office as well (Thurlow Baker, the DA who tried Davis in the first place, is gone), so most of the people who would be most negatively affected by a new trial aren’t around to get badgered and would get batted around like cat toys only in absentia. That should take at least a little of the political heat off a decision for a new trial. Furthermore, we don’t yet know which District Court judge is going to get the assignment, and not all of them are automatic upholders.
So there is, as I said, a ray of hope even in Georgia, but the fear of the black eye a new trial would give the Georgia police and legal system in the media remains the most powerful reason to make sure such a trial never happens. Whether Justice Stevens meant to do it or not – and I don’t think he did – his language potentially offers a frightened, angry Georgia legal system the opportunity to simply step away. Let Troy Davis die and the controversy and all possible consequences die with him. What’s the death of one more black man compared to saving the legal system from a shame it may not be able to live down for decades? Ugly as that question is, it’s the one they’re asking themselves right now.
UPDATE: (1.50pm) Scott Horton on Scalia’s deadhead dissent.
But the move provoked a sharp dissent from Antonin Scalia, who used the occasion to deliver a lecture on the Constitution and its relationship to justice:
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.
In other words, Scalia’s Constitution does not guarantee a man who has been convicted and sentenced to death–but who is actually innocent–a review of his case.
More brilliant thinking from the Right’s most “brilliant” jurist.