On Aug. 17, the U.S. Supreme Court issued an unusual decision that has generated significant discussion among court watchers. In the matter of In re Troy Anthony Davis, the court’s transfer of a state death row inmate’s habeas corpus petition to a Georgia federal court for further consideration is not what has drawn interest. Rather, it is Justice Antonin Scalia’s startling dissent (joined by Justice Clarence Thomas) and Justice John Paul Stevens’ response that have stirred interest.
The inmate, Troy Anthony Davis, was found guilty 18 years ago of the murder of Mark Allen MacPhail, an off-duty police officer. Davis came before the court seeking the extraordinary relief of original writ of habeas corpus – a petition lodged directly with the Supreme Court itself, rather than a lower state or federal court, based on his “actual innocence.” His petition contended that since his conviction seven of the state’s key witnesses recanted their trial testimony and several individuals have implicated the state’s principal witness as the shooter. The court ordered the petition transferred and allowed numerous amici briefs to be filed.
In what is a stunning dissent, Scalia contends the court is sending the Georgia court on a “fool’s errand,” since that court can only order Davis’ release on a habeas writ if the underlying state conviction “was contrary to, or involved an unreasonable application of, clearly established Federal Law as established by the Supreme Court of the United States.” Scalia argued this was not possible, making the incredible statement that the Supreme 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.”
The implication of this statement is startling. Scalia is essentially arguing that a death row inmate’s innocence is immaterial if he previously received a fair trial. As Professor Alan Dershowitz stated in a piece published on the Daily Beast, this would mean that:
If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”
Stevens, joined by Justices Ruth Bader Ginsburg and Stephen Breyer, issued a concurring opinion specifically responding to the dissent. Stevens stated that surely the “substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.” Simply, “it would be an atrocious violation of our Constitution and the principles upon which it is based to execute an innocent person,” according to Stevens.
Plainly, logic – and justice – would seem to dictate that the potential execution of an innocent man may present the possibility of an unreasonable application of federal law. The fact that Justice Scalia disagrees is troubling in the extreme.
Ryan J. Fleming, a member of Stradley Ronon Stevens & Young's employment and labor practice group, focuses on employment litigation including discrimination and wrongful discharge claims and counsels employers on a variety of employment-related issues.
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Ryan J. Fleming
Stradley Ronon Stevens & Young, LLP