On Monday, the U.S Supreme Court ordered a new trial for Troy Davis, a Georgia man who was sentenced to death for the 1989 murder of an off-duty police officer that he said he did not commit.
It was an extraordinary ruling for two reasons. On procedural grounds, the Court rarely hears direct appeals based on a convicted person's claim of actual innocence. But more substantively, the primary evidence of Davis' innocence is that many of the witnesses who testified against him have recanted their original testimony.
You might think that judges would be willing to review convictions based on testimony that was later recanted, but in fact courts frequently ignore recantations when reviewing claims of actual innocence.
Take for example the case of Illinois resident Johnnie Lee Savory, a client of the Center on Wrongful Convictions. In 1981, Savory was convicted of a double homicide and sentenced to 40-80 years in prison based largely on the statements of witnesses who began recanting their testimony almost as soon as his trial was over.
Like many of the witnesses in Davis' case, the witnesses in Savory's case later swore under oath that "their testimony was false," and that they "felt pressure . . . and told [the detective] what he wanted to hear." Despite the recantations in his case, Savory remained in prison until 2006, when he was paroled. Illinois courts have also used this recanted testimony to deny Savory DNA testing that could potentially exonerate him.
Even when courts ultimately allow recanted testimony to exonerate a wrongfully convicted person, the process is often clumsy and contradictory.
In May 2009, for example, Center on Wrongful Convictions' client Thaddeus Jimenez was cleared of all charges stemming from his 1993 murder conviction after several of the original witnesses against him recanted their testimony. Shortly after he was exonerated and released from prison, the real perpetrator was arrested for the crime.
However, if Circuit Court Judge Stanley Sacks had his way, Jimenez would never have been able to use the recantations to prove his innocence. A year before Jimenez was exonerated, Jimenez's lawyers petitioned Judge Sacks for a new trial based on the recantations. Without even granting an oral hearing for Jimenez's lawyers to argue their case, Sacks dismissed the Petition, ruling that the recantations were unlikely to "change the result of this case on retrial" and that the Jimenez's Petition was "frivolous and patently without merit."
As the Davis case shows, there are many judges who think like Judge Sacks, including Supreme Court Justice Antonin Scalia. In his dissent, Scalia dismissed Davis' recantation evidence as "a sure loser." Scalia went so far as to suggest that innocence should be irrelevant when the Supreme Court reviews a death sentence. "This Court," Scalia wrote, "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 . . . court that he is 'actually' innocent."
When it comes to claims of actual innocence, it is to be hoped that courts in Chicago and across the country reject Scalia's approach and embrace the majority's holding in Davis. For every Davis and Jimenez who have been granted an opportunity to use recantations to establish their innocence in court, there are many more people like Johnnie Savory who don't get that chance.
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That said, my guess is that neither Justice Scalia or anybody else thinks justice is served by such executions. He probably believes that legislative bodies, not the SCOTUS have the job of setting up proper appeals standards and procedures.
However, I doubt that Justice Scalia or anybody else thinks it is good criminal justice to carry out such executions. Maybe he thinks that legislative bodies should set up proper appeal processes and standards.
There are lots of things that need reforming in our criminal justice system. The conviction of innocent people is one. One thing that contributes to this is that there is little oversight of police officers, district attorneys and judges.
Police do intimidate witnesses and defendants and coerce them into saying what they want them to say. They regularly conceal evidence favorable to defendants. They are biased but pretend to be neutral.
District attorneys and sheriffs (and many judges) are elected and there is political pressure on them to solve cases and convict someone- a rush to judgment, rather than a thorough, reasonable, unbiased investigation. And judges don't want to be seen as unsupportive of law enforcement, so they let the police and DAs get away with things. They don't want to dismiss a case on a "technicality" (as if the U.S. Constitution was a technicality).
Meanwhile, Public Defenders are swamped with excessive caseloads because no one wants to fund lawyers for criminal defendants.
Usually the innocent plead guilty because they don't have any prior convictions so they are offered a good deal with no jail time. That way, there is no risk of losing your job, being away from your family, etc.
In the name of full disclosure, I am against the death penalty. I would support a federal law banning it. But Scalia is correct on this issue. This is not grounds for a supreme court hearing on this case especially given this same motion had been rejected several times on the state level.
I am curious as to why Mr Maki makes no reference to page 5 of the dissent where Justice Scalia writes:
"When Davis sought clemency before the Georgia Board of Pardons and Paroles, that tribunal stayed his executionand “spent more than a year studying and considering [his] case.” It “gave Davis’ attorneys anopportunity to present every witness they desired to sup-port their allegation that there is doubt as to Davis’ guilt”;it “heard each of these witnesses and questioned them closely.” It “studied the voluminous trial tran-script, the police investigation report and the initial statements of the witnesses,” and “had certain physical evidence retested and Davis interviewed.” “After an exhaustive review of all available information regarding the Troy Davis case and after considering all possible reasons for granting clemency, the Board . . . determinedthat clemency is not warranted.”
This post was wholly misleading, particularly the suggestion Justice Scalia doesn’t care about guilt or innocence. Context and an appreciation for legality is unfortunately missing.
There is no question in my mind that innocent people have been executed. And, after the execution, files, evidence, etc. is destroyed forever precluding the possibility, sometime in the future when technology allows it, to prove that an innocent person was executed.
Justice Scalia shows clearly what the Judicial Branch is all about: if you follow procedures, then this is the outcome, and it can not be appealed.
This is the same judicial branch which now has one-in-ten Americans behind bars; the one in which the United States' 5% of the world population has 25% of the world's prisoners.
It is a very brutal branch when compared almost everywhere else in the world. We lock 'em up, we punish, we do NOT rehabilitate. We are a very cruel country with a very brutal judicial branch.
Nonetheless, to use original testimony, later recanted, as a rationale for denying a scientifically objective test that was unavailable at the time of trial is wrong.
I don't want to judge Scalia's points from excerpts, but if unmitigated by context, I think Scalia argues a point that leads to an absurdity. For instance, I don't think the Constitution says any thing explicit about embezzlement or bribes. Does that mean it's okay when done by one of the federal office holders?
Does he really think that a judge, a prosecutor, some more or less competent defense, and twelve peers equal infallibility? Does he think that's what the founding fathers were thinking? I am not as learned man as Justice Scalia, but it seems to me the Constitution is organized under a key premise, that man is fallible.
So we should address the question of miscarriages in justice, not because the Constitution tells us so, but because common sense and humbleness tells us so. In a capital case, in which the state takes away the third of the inalienable three (life, liberty, and the pursuit of happiness), the concern for correctness, for propriety, for justice should be foremost.