Monday, 24 November 2008

11th Circuit Raises Big Questions by Delving Into Death Row Case

11th Circuit Raises Big Questions by Delving Into Death Row Case

Alyson M. Palmer
Fulton County Daily Report
November 21, 2008

When the U.S. Supreme Court last month refused to hear the case of Troy Anthony Davis, whose claims of innocence had delayed the lethal injection he was to undergo for killing a Savannah, Ga., police officer, the efforts of his lawyers and activists supporting him were pronounced a failure.

But three days before Davis' execution, a panel of the 11th U.S. Circuit Court of Appeals ordered a stay -- a "drastic measure" under the circumstances, the judges said. While the judges could have made a final decision based on the written briefs filed since the Oct. 24 stay, on Wednesday the panel ordered Davis' lawyers and those for the state of Georgia to present oral argument Dec. 9.

One death penalty expert said Davis' chances of prevailing remain slim. But the 11th Circuit's actions are intriguing. The panel of Judges Joel F. Dubina, Rosemary Barkett and Stanley Marcus has raised questions about the complex web of law governing how courts should handle habeas corpus claims by death row inmates.

Of course, for many of Davis' vocal supporters, the issue is simple: the state should not execute someone who -- they believe -- did not kill Officer Mark Allen MacPhail. They point to affidavits from witnesses for the prosecution recanting their 1991 trial testimony, as well as affidavits from other witnesses saying another man confessed to the crime.

Chatham County District Attorney Spencer Lawton Jr. is just as adamant. He said little publicly about the case until the U.S. Supreme Court denied certiorari, when he said he felt free to issue a statement because "the merits of the case are no longer pending."

Lawton said then he doubted the veracity of the post-trial affidavits, given that they amounted to an 80 percent recantation rate -- "the first in the history of the world?" he asked. Lawton also noted that the affidavits were not submitted to support Davis' motion for new trial until eight days before the first scheduled execution date.


Deadlines and the timing of Davis' post-trial actions account for some of the tricky issues before the 11th Circuit in the Davis case.

The key statute is the Antiterrorism and Effective Death Penalty Act, or AEDPA, specifically the part, 28 U.S.C. §2244(b)(2), that addresses when a new claim can be presented in a second habeas petition. That provision allows for new claims where "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence" and the facts underlying the claim "would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense."

In its order staying the execution last month, the panel asked the parties to address whether Davis can meet those two requirements, given his first federal habeas claim was denied in 2004. The court also asked the panel to address whether Davis previously raised his claims of actual innocence and whether David could be executed if he can establish his actual innocence under that second requirement but can't meet his burden under the due diligence requirement.


At first glance, the 11th Circuit's questions suggest the panel is particularly interested in Davis' plea. But Michael Mears, an experienced capital defense lawyer who's now a professor at Atlanta's John Marshall Law School, said he would be surprised if Davis gets further relief from the 11th Circuit.

"I think this panel is simply saying, 'we're going to dot every I and cross every T,'" said Mears, who initially doubted the court would grant Davis' lawyers' request for oral argument.

Mears also was skeptical about the significance of the panel's request for briefing on whether Davis can be executed if he establishes his innocence but can't prove that his lawyers were diligent enough. The question may reflect a broader interest by one or more of the panel members in how the issue should be resolved in other cases, such as those where there is exonerating DNA evidence, said Mears, who was the first director of the Georgia Public Defender Standards Council and, as a law professor, joined an amicus brief filed at the Supreme Court of Georgia in support of Davis.

For Davis, Mears said, the habeas push is going to be an uphill battle.

Claims based on witness recantations are seen as presenting a potential for a slippery slope, said Mears. "Recantations as a basis for new trials are very dangerous," he said, "because it opens up avenues: How many recantations does it take? What's the value to be placed on some recantations versus others? ... I think to use recantation testimony, while in this particular case it certainly is causing a perceived injustice, I just think it's going to be difficult for any appellate court to make its decision based on recanted testimony."


The parties' briefs address when Davis should have and could have raised his claim that he is innocent.

Davis' case previously was at the 11th Circuit in September 2006, when a panel affirmed U.S. District Judge John F. Nangle's denial of Davis' first federal habeas petition. That panel -- the same one that issued last month's stay -- held that Nangle correctly rejected Davis' claims that his conviction was unconstitutional because the state knowingly had presented false evidence and withheld exculpatory material and because Davis' trial counsel was ineffective.

In that round at the 11th Circuit, Davis' defense team said Nangle was wrong to refuse to consider evidence of Davis' innocence and consider only the merits of his complaints about the trial process itself. But the 11th Circuit said then that because Davis didn't make a "substantive claim of actual innocence," he couldn't complain that Nangle had not looked at evidence of innocence.


In their most recent filing, Davis' attorneys, Jason Ewart and Danielle M. Garten of Arnold & Porter in Washington and Thomas H. Dunn of the Georgia Resource Center, say that Davis could not have raised a stand-alone innocence claim in his first petition because it was not ripe until he exhausted all of his state remedies, including executive clemency. They note that the district court denied Davis' attempt to stay his first federal habeas petition (filed to meet the one-year AEDPA statute of limitations) so that he could pursue state remedies.

Davis' lawyers also dispute the state's suggestion that the availability of state remedies means federal courts are forever closed to stand-alone innocence claims. That, Davis' attorneys say, would render meaningless the constitutional right to not be executed if you are innocent, assumed for the sake of argument by the U.S. Supreme Court's majority in Herrera v. Collins, 506 U.S. 390 (1993). The court in that case found that all states that have capital punishment offer executive clemency, Davis' lawyers note.

The defense lawyers say Davis' new petition is not barred by the requirement of due diligence, because, except for one recent affidavit implicating another man in the murder of MacPhail, all of the evidence supporting Davis' innocence claim was discovered before or during the first federal habeas proceeding and submitted to the district court before it ruled on any substantive motion.

Even if Davis hasn't met the diligence prong, Davis' attorneys write, there still is no procedural barrier to his second habeas petition because the 11th Circuit said that persuasive, free-standing innocence claims should not be barred by procedural default.


It's the job of lawyers in the state attorney general's office to fight Davis' attempts in habeas. In their brief filed at the 11th Circuit, AG Thurbert E. Baker, Deputy AG Mary Beth Westmoreland and Senior Assistant AG Susan V. Boleyn argue that to the extent he can even make such a claim, Davis' stand-alone actual innocence claims could have been raised at any time. Instead, they say, he waited until last year, when he filed a motion for new trial in Chatham County.

Herrera merely assumes actual innocence renders execution of a defendant unconstitutional if there's no state avenue open to process a claim, argue the state's lawyers. Exhaustion of state remedies is irrelevant, they say, because claims of innocence are properly left to the state courts.

Davis cannot satisfy the due diligence requirement, the state's lawyers write, because he had the factual evidence to make a free-standing innocence claim in the first habeas case, and even then the district court said he hadn't been diligent in presenting his affidavits.

They argue that courts reviewing his case already have determined Davis cannot meet a miscarriage of justice standard and that it's a higher standard to show "no reasonable factfinder" would have found him guilty of murder. The U.S. Supreme Court has criticized use of affidavits alone to establish actual innocence, they add.

The state's lawyers write that the issue of whether Davis can be executed if he can show actual innocence but not due diligence "is not currently before the court." They say the 11th Circuit is not to decide at this point whether Davis is actually innocent. Rather, it simply is to decide whether Davis meets the statutory requirements to file another habeas petition, which include both due diligence and that, but for constitutional error, no reasonable factfinder would have found him guilty.

The case is In re Troy Anthony Davis, No. 08-16009.

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