Troy Davis case full of murky legal questions

By: Russ Bynum
Monday, July 5, 2010

Thanks to an order from the U.S. Supreme Court, a Georgia death row inmate was granted a hearing to prove his innocence to a federal judge — a chance afforded no American facing execution in nearly half a century.

Now that the court hearing is over, what happens next isn't so clear. The case of condemned inmate Troy Anthony Davis is so unusual, legal experts can't even agree on what the judge can do.

Davis' fate rests with a U.S. District Court judge who heard testimony in June from witnesses who say they lied at Davis' trial. Others say they heard another man confess to the 1989 slaying of Savannah police officer Mark MacPhail.

Judge William T. Moore Jr. won't rule until after he reviews legal briefs from both sides due Wednesday.

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Some experts say the judge could order a new trial. Others say the judge could make a recommendation to the Supreme Court that Davis be freed from prison. There's also a possibility the judge could find Davis innocent, yet rule he's powerless to spare Davis' life.

"There is some ambiguity," said John H. Blume, a Cornell Law School professor who specializes in death penalty appeals. "Whenever you've got something this new, that hasn't happened all these years, you're really making your best guess."

In death penalty cases, federal courts normally consider only violations of due process and constitutional rights. When a divided Supreme Court granted Davis a hearing to prove his innocence last August, dissenting Justice Antonin Scalia called it "an extraordinary step — one not taken in nearly 50 years."

The Supreme Court set the burden on Davis to "clearly establish" his innocence with evidence that wasn't available at his 1991 trial, when Davis was convicted of shooting MacPhail as the off-duty officer rushed to help a homeless man being attacked.

If the judge rules against Davis and the Supreme Court upholds his decision, it's likely the end of his case — though Davis could make another appeal for clemency to the Georgia Board of Pardons and Paroles.

If Davis succeeds in proving his innocence, things get murkier.

Michael Mears, a John Marshall Law School professor who's defended numerous capital cases in Georgia, suspects Davis may be granted a new trial. That's what Davis' lawyers were seeking in 2007 when his latest round of appeals started.

But Stephen Bright, a Yale Law School lecturer and veteran death penalty attorney, argues a favorable ruling for Davis would likely result in the Supreme Court ordering Georgia authorities to free Davis. A second trial, he says, would amount to double jeopardy.

"We're in totally uncharted waters," Bright said. "There would be arguments all over the ballpark on it."

A major factor in the judge's ruling will be whether he believes witnesses who say they lied at Davis' trial or caved under police pressure to point to Davis as the killer.

Mears said the credibility of Davis' witnesses will be his biggest hurdle.

"They start off in the hole being admitted perjurers," said Mears, a former head of the Georgia Indigent Defense Council. "They've admitted they lied under oath at one point. How much credibility does that give them now?"

Davis' lawyers are also counting on two witnesses who testified that Sylvester Coles, who was with Davis moments before the slaying, later told them he shot the officer. One says he witnessed Coles shoot MacPhail.

But the judge criticized Davis' attorneys for failing to subpoena Coles for the latest hearing. He denied being the shooter at Davis' trial.

Because Coles didn't get a chance to answer the new accusations in his courtroom, the judge said he may disregard any testimony against him as inadmissible hearsay.

Davis' lawyers failure to put Coles on the witness stand "may very well be fatal," said Donald E. Wilkes Jr., a University of Georgia law professor and expert on death penalty appeals.

"I've never heard of anybody in a post-conviction case committing such egregious, damaging blunders," Wilkes said.

Complicating things further, the legal issues before the judge don't stop with Davis' innocence or guilt.

The judge has asked lawyers to weigh in by Wednesday on two broader issues that could restrict his authority.

The judge's first question: Is he prohibited from helping Davis, even if he's innocent, by a 1996 law passed by Congress after the Oklahoma City bombing that limits death penalty appeals?

Scalia argued in his dissent that the Anti-Terrorism and Effective Death Penalty Act means federal courts are powerless to overrule Georgia courts that already rejected Davis' innocence claim.

The other legal question before the judge sounds like a no-brainer, but it's a constitutional issue the Supreme Court hasn't settled.

Appeals courts found that Davis received a fair trial. If he later proves he's innocent, would it be cruel and unusual punishment to execute him? Or would putting him to death still be constitutional because Davis received a fair trial?

"It's the kind of claim you almost have to be a lawyer to make it sound even plausible," said Robert Schapiro, a professor of constitutional law at Emory Law School. "But the Supreme Court has never held that it violates the Eighth Amendment to execute someone who is actually innocent."

Still, legal experts say they doubt the Supreme Court would have ordered a hearing for Davis if it thought the federal courts were powerless to take action.

The judge hasn't laid out what options he's considering in Davis' case, and hasn't given himself a deadline to rule. The Supreme Court has recessed until October, so the wait could be weeks if not months.