by publius
The following is a guest post from Lee Kovarsky, an Acting Assistant Professor at NYU School of Law, who I discussed these issues with yesterday and who knows this stuff inside and out. In light of yesterday's great thread, I thought you might enjoy. It spells out the problems with Scalia's position in ways I can't. One interesting point he raises, for instance, is how DNA evidence poses a fundamental (and I'd say fatal) challenge to Scalia's position.
______________________
On Monday, the Supreme Court handed down an extraordinary three page order directing a federal district court in Georgia to determine whether newly-discovered evidence would establish that Troy Davis did not commit the murder for which he was convicted and is to be executed. The order provoked an explosive response from Justice Scalia, who wrote in dissent that “[t]his 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.” He characterized the federal proceedings in Georgia as a “fool’s errand.” Justice Scalia’s dissent sparked considerable confusion and anger, with many outraged at the thought that he endorsed the execution of an innocent man.
The decision is stunning for two reasons: (1) for the procedural posture in which the Court made it (granting an original habeas petition) and (2) for the substantive legal possibility the original habeas grant implies (that a “freestanding” claim of “actual innocence” could be a basis for federal habeas relief). Explaining why this ruling is so important, and doing so in terms that non-habeas specialists can understand, is a daunting task that I execute very imperfectly below.
BACKGROUND
Davis was convicted in Georgia state court for murdering a police officer. After Davis was convicted, he filed a first federal habeas petition, alleging a variety of constitutional violations. Relief on that petition was denied. (Note: for the purposes of this discussion, a habeas petition is filed in federal court, and tests the constitutionality of a state prisoner’s conviction or sentence.)
Davis had been arrested after a highly publicized manhunt, and seven of the nine witnesses testifying against him have now recanted their testimony. Another man has admitted to approximately four other people that he – not Davis – committed the murder. Davis filed a second (“successive”) habeas petition, alleging a “freestanding” innocence claim – a naked claim that he is not guilty and that is not accompanied by an allegation of some other constitutional violation (such as ineffective assistance of counsel or the prosecution’s failure to disclose exculpatory evidence).
In 1996, Congress severely restricted the circumstances under which state prisoners could file successive petitions. One restriction requires the prisoner to seek “authorization” from a federal appeals court before proceeding on the merits of the claim in district court. Another restriction bars the Supreme Court from using a “writ of certiorari” to review that authorization ruling. Certiorari forms the basis of the Supreme Court’s jurisdiction to review a lower court. Certiorari is, by extreme orders of magnitude, the most frequently-invoked authority for reviewing lower-court decisions. Ninety-nine percent of the Supreme Court cases that law students read are decided on certiorari review.