Troy Davis, whose death row case has won the support of international luminaries from Susan Sarandon to Jimmy Carter to Desmond Tutu, has faced near-execution many times. And each time he’s been granted a last-minute delay—last fall’s stay came just two hours before Davis was scheduled to die. On Monday, the Georgia man was granted yet another delay. But the Supreme Court’s order to transfer his case to a federal court is more than just a temporary reprieve. It is the chance for which Davis has waited for nearly two decades: The opportunity to have a federal court hear compelling evidence that would support his claim of innocence in the 1989 murder of an off-duty police officer.
This is an extraordinary turn of events in a case that, from the very start, has been extraordinary, from prosecution witnesses recanting testimony to the Pope weighing in from the Vatican on Davis’ behalf. Now, the Supreme Court has transferred Davis’ petition for a writ of habeas corpus to a trial court in Georgia for the express purpose of, according to Justice Stevens, “receiv[ing] testimony and mak[ing] findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes … [Troy’s] innocence,” Not all the justices were on board with this decision, however: Dissenters Antonin Scalia and Clarence Thomas declared the order a “fool’s errand.” (Newly sworn-in Justice Sonia Sotomayor did not participate in the petition.)
The shooting was the focus of intense media attention in and around Savannah, Ga.: A police officer had been murdered. Moreover, Davis is African-American; the police officer he is accused of killing is white, compounding tensions in the case. On Aug. 19, 1989, Mark Allan MacPhail, 27, while moonlighting as a security guard, was shot and killed in an alley outside a Burger King. The officer was responding to the pleas for help by a homeless man who was being assaulted by a man named Sylvester Coles. Although Coles was the original suspect, attention shifted later to Davis. Davis was convicted based almost entirely on eyewitness testimony. Years later seven of those nine witnesses—all of the non-police witnesses—recanted their testimony. All contend that they identified Davis under intense pressure from police. One witness actually identified Coles as the shooter. The recantation of these witnesses is unusual, especially in light of Georgia’s laws against perjury and obstruction of justice, which could land the witnesses in prison for life. Yet no court has ever heard the recanted testimony of these witnesses.
Davis’ effort to have his conviction overturned has been complicated by the provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), a law passed in the wake of the Oklahoma City bombing and signed by President Clinton. When he signed the act, President Clinton emphasized and lauded the provisions that strengthened law enforcement ability to fight terrorism and tried to downplay the concerns forcefully advanced by critics of the bill, that the provisions narrowing habeas review would infringe on constitutional rights.
But Clinton’s hopeful prediction that the act would only “stream line” frivolous habeas petitions was not borne out. Instead, the act severely narrowed opportunities for criminal convicts, and death row inmates in particular, to have habeas petitions heard in the federal courts. Death row inmates under the new law could only seek a writ of habeas corpus within six months after the conviction. And the basis for having the case heard in federal court could only derive from an issue that had been heard and decided by the state court that tried the defendant. The law did leave open the possibility for habeas petitions based on newly unearthed evidence that was not obtainable at the time of the first trial. The recantation of testimony in Davis’ case demonstrates the difficulty with that provision. But even without that provision in the act, Davis was left with an even more sweeping legal argument that goes to the heart of the Anti-Terrorism and Effective Death Penalty Act’s scope: If the terms of the act bar the extension of habeas review to a death row convict who is actually innocent, then the act is unconstitutional.
The court’s decision in the Davis case may be its most important—and controversial—this term. It also may present the starkest example of the deep, fundamental divisions on the Supreme Court. The majority endorsed the language of 9th Circuit Judge Rosemary Barkett, who in her April 2009 dissent from the 11th Circuit Court of Appeals decision denying Davis’ petition, deemed the execution of an innocent convict, “an atrocious violation of our Constitution and [the] principles upon which it is based.” In contrast, Scalia and Thomas vehemently assert that “the court has never held that the Constitution forbids the execution of a convicted defendant” who later convinces a court “that he is ‘actually’ innocent.” Allowing a trial court to hear, for the first time, the actual testimony of the witnesses who recanted their earlier eyewitness statements implicated Davis is, according to Scalia and Thomas, a mistake. His claims are, they write, “a sure loser.”
And there you have it. For the majority, actual innocence matters. In Scalia and Thomas’ view of habeas, it does not.
Over the years, Davis’ case has been the focus of an intense international campaign. Besides the Pope and Desmond Tutu, he has had the sustained support of Amnesty International. Davis’ case has made strange bedfellows of former conservative Georgia Rep. Bob Barr and the NAACP. That organization’s “I Am Troy” campaign has powerfully mirrored its “I Am a Man” anti-lynching campaign of the 1940s. NAACP CEO Benjamin Jealous has been a forceful advocate for Davis. Barr, who helped write the AEDPA, has long asserted that Congress never intended to exclude claims of actual innocence from habeas review.
Troy Davis still has a hard road ahead. It will be no easy feat convincing a trial court of his innocence, even with the recanted testimony.
MacPhail’s family will also face the heartache of reliving their son’s murder through this case. But both may find some measure of peace in this last and final act, when our legal system will hear the full measure of evidence in this complex and difficult case. And we should all derive some satisfaction from knowing that a majority of the Supreme Court still believes that our Constitution stands for the principle that innocence matters.
Sherrilyn A. Ifill is a regular contributor to The Root.