Troy Davis Gets Another Stay

Friday, October 24th, 2008

From a three-judge panel at the 11th Circuit Court of Appeals. Maybe the article just uses awkward phrasing, but this sentence jumped out at me:

The panel ordered both sides to draft briefs to address whether Davis can be executed if he can prove his innocence.

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25 Responses to “Troy Davis Gets Another Stay”

  1. #1 |  Thomas Paine's Goiter | 

    There is hope…

  2. #2 |  thomasblair | 

    I vote awkward phrasing. Even as a pessimist re: criminal “justice” matters, no one can be this…cold.

    I await correction, though.

  3. #3 |  thomasblair | 

    Wtf^2 is up with this sentence:

    At his 1991 trial, prosecutors said Davis wore a smirk on his face as he fired the gun.

    It’s so out of place as to make the article appear unfinished.

  4. #4 |  Lee | 

    Guilty until proven guilty.

  5. #5 |  Troy Anthony Davis Gets Stay of Execution | 

    […] Radley Balko is struck by this sentence from the AP report on the stay: The panel ordered both sides to draft briefs to address whether Davis can be executed if he can prove his innocence. […]

  6. #6 |  FWB | 

    The writing example above is typical of today’s maleducated populace. Regardless of which educational institution the individual attended, the level of incompetence never ceases to provide a certain humor tempered by concern for our future.

  7. #7 |  Cynical In CA | 

    “It’s so out of place as to make the article appear unfinished.”

    News articles are often edited for space. It’s possible the remainder of the article was not published.

    I think the wording “The panel ordered both sides to draft briefs to address whether Davis can be executed if he can prove his innocence…” is probably accurate.

    Due process always means PROCEDURAL due process. There’s no such thing as substantive due process anymore, and I believe there never was.

    The State only cares about dotted i’s and crossed t’s. Good enough for government work.

  8. #8 |  ktc2 | 

    Um . . . so is the court actually asking the prosecution to provide a brief stating that he may still be executed even if he can prove his innocence?

    Would even prosecutors stoop low enough to prepare such a brief favoring the execution of a proven innocent man?

    Oh wait, nm, didn’t the SCOTUS just do that in their order when they said the execution could go on because “the process” had been followed.

  9. #9 |  H. Kelly Taylor | 

    “Herrera v. Collins
    From Wikipedia, the free encyclopedia
    Jump to: navigation, search
    Herrera v. Collins

    Supreme Court of the United States
    Argued October 7, 1992
    Decided January 25, 1993

    Full case name: Leonel Torres Herrera, Petitioner v. James A. Collins, Director, Texas Department of Criminal Justice, Institutional Division
    Citations: 506 U.S. 390 (see more…); 113 S. Ct. 853; 122 L. Ed. 2d 203; 1993 U.S. LEXIS 1017; 61 U.S.L.W. 4108; 93 Cal. Daily Op. Service 512; 93 Daily Journal DAR 1024; 6 Fla. L. Weekly Fed. S 882
    Prior history: Defendant convicted, 197th Judicial District Court of Cameron County, Texas; affirmed, 682 S.W.2d 313 (Tex. Crim. App. 1984); certiorari denied, 471 U.S. 1131 (1985); petition for writ of habeas corpus denied, 819 S.W.2d 528 (Tex. Crim. App. 1991); certiorari denied, 502 U.S. 1085 (1992); denial of petition for writ of habeas corpus affirmed, 904 F.2d 944 (5th Cir. 1990); certiorari denied, 498 U.S. 925 (1990); stay of execution vacated, 954 F.2d 1029 (5th Cir. 1992); certiorari granted, 502 U.S. 1085 (1992)
    Subsequent history: Rehearing denied, 507 U.S. 1001 (1993)

    A claim of actual innocence based on newly discovered evidence is not ground for federal habeas relief. United States Court of Appeals for the Fifth Circuit affirmed.
    Court membership
    Chief Justice: William Rehnquist
    Associate Justices: Byron White, Harry Blackmun, John Paul Stevens, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas
    Case opinions
    Majority by: Rehnquist
    Joined by: O’Connor, Scalia, Kennedy, Thomas
    Concurrence by: O’Connor
    Joined by: Kennedy
    Concurrence by: Scalia
    Joined by: Thomas
    Concurrence by: White
    Dissent by: Blackmun
    Joined by: Stevens, Souter (parts I–IV)

    Laws applied
    U.S. Const. amends. VIII, XIV
    Herrera v. Collins, 506 U.S. 390 (1993), is a case in which the Supreme Court of the United States (in a 6 to 3 decision) ruled that a claim that the Eighth Amendment’s ban on cruel and unusual punishment prohibits the execution of one who is actually innocent is not ground for federal habeas relief.”
    In other words, Rhenquist didn’t think actual innocence mattered as long as process was followed.

  10. #10 |  Zeb | 

    So, could you call this “executed on a technicality”? Where are the people who can’t stand bad guys “getting off on a technicality” on this one?

  11. #11 |  Pete Guither | 

    I think they meant to say:

    “The panel ordered both sides to draft briefs to address whether prosecutors can be executed if Davis can prove his innocence.”

  12. #12 |  z | 

    I think they meant what they said. The problem is who determines whether he has “proven” his innocence? A new trial perhaps? How many chances does he get to retry proving his innocence and on what grounds? At some point the appeals process must end.

  13. #13 |  thomasblair | 


    Oh, agreed. What struck me is that it’s a single, random nugget probably inserted for its inflammatory, caustic content.

  14. #14 |  H. Kelly Taylor | 

    If the aim of a justice system is to dispense justice, then the length of the appeals process is irrelevant. The innocent should be able to reopen a faulty process until justice and the truth are served.

  15. #15 |  Nick T | 


    I think you’re misunderstanding the meaning of those terms. In fact neither one applies all that often in this type of criminal appeal. Usually the issue is your right to a fair trial, or in this case the right against cruel and unusual punishment. Substantive due process challeneges in criminal cases usually challenge that the law itself is an unjust one and doesn’t rationally relate to a legitimate government interest. You seem to think it means a general sense of accuracy.

    I think we all need to remember that in the eyes of appellate courts the the system is flawed because it’s made up of people. Rules and presumpitons and burdens are put in place to mitigate the odds or to shift the likelihood of mistakes in one direction. But appellate courts can’t view themselves as absolute arbiters of justice. That is, they can’t overturn eveyr case where they would have decided it differently, or they have their own doubts about the evidence, because who is to say their judgment is better than anyone else’s.

    The phrase “prove his innocence” in this case is a misnomer, because he may never be able to do that in the absolute sense becasue it’s all witness testimony.

    Clearly the system needs to do a much better job of exonerating people scientifically proven to be innocent, but recanted witness testimony is very iffy.

    In my view, the particulars in this case rise to the level of warranting a new trial. But I think in general, recanted witness testimony – unless the original testimony was coerced, not just “pressured” – should almost never be grounds for a new trial.

  16. #16 |  John Jenkins | 

    Does anyone know what the 11th Circuit panel actually said, as opposed to the reporter’s characterization? My guess is that the reporter just dashed off what he thought what he thought the court was doing because he doesn’t understand what’s going on and the role that federal appellate courts are permitted to take in state matters.

  17. #17 |  H. Kelly Taylor | 

    It seems to me if seven of nine prosecution witnesses recant their identification that reasonable doubt is evident . I know that those idealogical illogical bullshitters have ruled in past cases that once a defendant is convicted more than reasonable doubt is needed to overturn conviction. Tell me if it were your ass on the line that you wouldn’t find such a ruling less than credible.

  18. #18 |  John Jenkins | 

    @ H. Kelly Taylor: When given the choice to decide whether seven people were lying at a trial or are lying now, you choose to believe the former rather than the latter. Others made the opposite decision. How is that illogical?

    Why would you have reached a different decision in the Herrera case?

    So far you have (a) misconstrued the opinion in Herrera; and (b) begged the question regarding the appellate process; (c) and made clear your outrage at those who disagree with you. So, why?

  19. #19 |  Cynical In CA | 

    “Oh, agreed. What struck me is that it’s a single, random nugget probably inserted for its inflammatory, caustic content.”

    Thomas, the writer’s intent is ambiguous at this point in my opinion. That he inserted that sentence so early in his article is interesting, but I think it’s just coincidence that it was the last sentence before the edit. Or maybe the editor had a preference. Interesting to consider.

  20. #20 |  Cynical In CA | 

    “Substantive due process challeneges in criminal cases usually challenge that the law itself is an unjust one and doesn’t rationally relate to a legitimate government interest. You seem to think it means a general sense of accuracy.”

    I can see how you came to my interpretation of this, Nick. I agree with your rendering of substantive due process, though perhaps right or wrong I would also lump Constitutional questions into substantive due process. I agree that questioning the validity of the law definitely constitutes substantive due process. It is this aspect of law that I believe the State attempts to ignore and suppress, in deference to procedural due process, especially as proved by the Supreme Court decision cited above.

    The law itself is sacrosanct (e.g. as evidenced by judges’ instructions to juries especially as regards potential jury nullification — a big no-no among the judicial set, but a concept that has a proud, and legally grounded, history in America). I believe the essence of substantive due process is truth, whereas procedure often leads to unjust and false results while upholding the “rule of law” (a myth, see John Hasnas).

    I wonder if the real issue behind this particular case isn’t one of federalism, that the Supreme Court decided that the States had sufficient safeguards in place to ensure a fair trial and a just outcome, especially since the decision refers to “federal habeas corpus relief.” Since it was Scalia and the New Federalists who sided with the majority, this may be the case — a legal New Professionalism. Do I really have to read the opinion? Fuck.

  21. #21 |  PersonFromPorlock | 

    Someone who didn’t do it is still ‘guilty’ if declared so by competent authority. Which is why you can be innocent, guilty and executed all at the same time. This is one example of why I maintain that courts which concern themselves with only ‘the letter of the law’, without regard to the rightness or wrongness of the result, are functionally insane under McNaughton.

  22. #22 |  Nick T | 


    I see what you mean, I’m just clarifying the definition of those terms in a legal sense – which is really the only sense they have any meaning.

    I generally agree that judges at the appellate level should be more concerned with getting things right. Often in the face of rather incredulous evidence appellate courts defer to the idea that the jurors (and to a lesser extent, the trial judge) are the ones who saw the evidence first hand and they came to a decision, which should not be questioned by an appellate judge sitting on high in his ivory tower. This is a logical position certainly, but it oftens produces very frustrating results when liberty minded people look at the results and the evidence.

    My point is that this approach, though frustrating, is probably proper and that the appellate judges need to focus on procedural problems or violated rights (which often go hand in hand) and that we need to reform police procedures, forensic rules and DA’s need to start doing their actual jobs. In other words, the problems that produce unjust results can’t be rectified by a more aggressive, justice-devining appellate process.

  23. #23 |  H. Kelly Taylor | 

    Mr. Jenkins, I don’t know about outrage, but I have some consternation about Herrera. (Herrera v. Collins, 1. 506 U.S. 390 (1993), is a case in which the Supreme Court of the United States (in a 6 to 3 decision) ruled that a claim that the Eighth Amendment’s ban on cruel and unusual punishment prohibits the execution of one who is actually innocent is not ground for federal habeas relief.). The only thing that Rhenquist/Thomas got right was that Herrera probably didn’t merit a new trial. What pisses me off is that they picked this case knowing that the new evidence wasn’t very convincing (Herrera’s lawyer and Herrera’s brother’s cellmate gave affidavits purporting that Herrera’s brother confessed to the murder making Herrera actually innocent.). So here they take this strawman case to deny appeal, but their real aim is to set up further obstacles to the appeals process. In other words the ruling was to thwart justice and further their muddle-headed political view, namely that being uppercrust, they (Rhenquist/Thomas) are better than everybody else and above the law ( see
    Bush v. Gore, 1. 531 U.S. 98 (2000),
    I think Blackmun got it right when he said,””[n]othing could be more contrary to contemporary standards of decency or more shocking to the conscience than to execute a person who is actually innocent.” …”We really are being asked to decide whether the Constitution forbids the execution of a person who has been validly convicted and sentenced, but who, nonetheless, can prove his innocence with newly discovered evidence,” and he took note of “the State of Texas’ astonishing protestation to the contrary.”
    In your view apparently the question in the Davis case is whether the seven of nine recanting witnesses were ”lying” originally or now. My view is that witness i.d. is, at best, accurate half the time and is often compromised by incorrect police procedure. The very fact that seven of nine now feel doubt means the police method in this case needs to be closely examined whether it’s been ten years or two hundred.

  24. #24 |  John Jenkins | 

    You’re closer on what Herrera said this time, but you’re still citing other peoples’ summaries, which means you still don’t understand the issue in the case you’re complaining about (i.e., whether a claim of actual innocence gives rise to a cognizable claim under the Eighth Amendment’s prohibition on cruel and unusual punishment).

    You also missed the part in the facts where there were similar affidavits to the ones rejected on habeas relief were rejected in earlier collateral attacks and ignored the part whether the now alleged true killer was himself dead and could not defend himself. Also, the hand-written confession in the defendant’s pocket when he was arrested is rather inculpatory. I’d read the whole case rather than the Wikipedia entry before I started criticizing the decision, since Herrera had raised the same issue in an earlier habeas petition in state court and those courts had rejected it (two other affidavits, so that by the time he got to federal court he had four affidavits claiming that his deceased brother had committed the murders).

    None of that matters on the issue raised, however. The Court also believed that Herrera had not yet exhausted his state law remedies (generally a requirement before you can get the federal courts involved) by raising his claim of actual innocence with the state executive. (N.B., Herrera was executed within six months after the mandate came down in the case.)

    Federal courts are courts of limited jurisdiction. Absent a violation of the U.S. Constitution or federal statute, federal courts have no authority to regulate the activities of state courts. You may not like that, but the system we have in place requires it.

    It is ironic that you bring up Bush v. Gore. You are essentially advocating that the Court expand standing in cases where you want them to, but in Bush v. Gore, the Court expanded standing to ridiculous proportions to interfere in a state law matter. It seems to me that you are being, at least, intellectually inconsistent (much as the Court was).

    Ultimately, your complaint in the Davis case and in Herrera is you believe your judgment is more accurate than the judgment of those who were in positions to make the decisions you’re criticizing. That’s fine, but simply because you disagree doesn’t make others wrong.

    For my money, whether Davis is innocent is irrelevant to his death sentence (and I do not have enough information to assess his innocence, I would have to review reams of transcripts I don’t have time to review): the state should not have the authority to execute him in any event.

    (BTW, I do not believe the Constitution prohibits the execution of an innocent person who was duly convicted. The fact that the Constitution permits such an outcome does not make that outcome advisable or desirable, but the act of believing that the Constitution prohibits all inadvisable and undesirable outcomes is the sort of meaningless living constitutionalism that results in the document meaning nothing and rights being given or taken away at a whim, which is not the idea behind a written constitution.)

  25. #25 |  H. Kelly Taylor | 

    I actually broght up Bush v Gore because I think Rhenquist and Thomas’s opinions have more to do with politics than law. I agree the feds should not have interfered in that case. However, maybe I’m being dense but I still think the opinion in the Herrera case claims that process trumps innocence and I think that’s plain silly.