09/20/2009 05:12 am ET Updated May 25, 2011

When It Comes to Claims of Actual Innocence, Courts Need to Consider Recantations

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.