Capital Case News

Three death penalty updates:

Troy Davis gets his day in court.

The Supreme Court, in a surprising, unusual, confused, and contentious move sent the Troy Davis case to the district court. The district court

should receive testimony and make findings of factas to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence.

There's been nothing quite like this in 50 years. Or maybe ever.

The quick back story: Davis was convicted and sentenced to die for the 1989 murder of Savannah, Georgia police officer Mark MacPhail. Davis concedes he was there but denies that he shot MacPhail. There were 9 key witnesses against him at trial. Seven have now recanted their testimony. Significant evidence points to one of the two who have not recanted as the actual killer. As his execution date approached, Davis filed a habeas corpus petition directly with the 11th Circuit Court of Appeals presenting a claim of actual innocence not tied to any other constitutional violation. The circuit court rejected the petition and Davis asked the Supreme Court to hear it.

The Court's order transferring the case to the district court for a hearing is, to say the least, peculiar, and for at least the following reasons:

1. It's not at all clear what standard the court is to use in determining whether Davis makes a sufficient showing, and the Court gives no guidance.
2. It's not at all clear what the court is to do if Davis does make a sufficient showing, and the Court gives no guidance.
3. If AEDPA controls, the district court may grant relief on an innocence claim only if controlling Supreme Court precedent says that executing the factually innocent is a constitutional violation, and the Court has never said that (though at one time or another five members of the Court - though not the current court - have said that).
4. It is not clear whether AEDPA controls. Justice Scalia says that it clearly does; Justice Stevens disputes that. The Court doesn't even hint at a resolution of that question.
5. Or maybe AEDPA contains an unwritten innocence exception. Justice Stevens thinks it does; Justice Scalia is quite sure it does not. The Court does not even hint at a resolution of that question.
6. Or maybe, if AEDPA doesn't contain an unwritten innocence exception, then AEDPA is unconstitutional. Or maybe not.
7. Presumably, it took five votes to issue the order. Now Justice Sotomayor did not participate in the decision and did not vote. Justice Scalia dissented, joined by Justice Thomas. Justice Stevens concurred, joined by Justices Breyer and Ginsburg. Nobody who knows what the Chief Justice or Justices Kennedy or Alito did is talking. And whatever they did, and for whatever reasons, has not been made public.

It's a glorious ruling for decency and fairness and justice and against the wanton infliction of death. But it's a damn curious one for the law.

Oh, and there's this. According to the AP story on what the Court did today,

State officials welcomed the ruling.

"Hopefully, this hearing will resolve the doubts about the verdict handed down by the Chatham County jury 18 years ago," Georgia Attorney General Thurbert Baker said in a statement.

Gee, if they were so eager for a full hearing of the evidence, they could have endorsed the effort to get a hearing rather than opposed it.

The Order and Justice Stevens' concurring opinion are here. Justice Scalia's dissent is here. Other documents in the case are linked about 40% of the way down this page.

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Jason Getsy will almost surely be killed tomorrow morning.

Friday afternoon, Governor Strickland issued his decision denying clemency to Jason Getsy after the Parole Board recommended it. In what passes for the substantive part of the decision, the Governor said

Substantial attention has been focused on the different sentences imposed upon Mr. Getsy and his co-defendant, Mr. Santine. Mr. Getsy and Mr. Santine had different roles in the murder. The fact that Mr. Santine was not sentenced to death is not, by itself, justification to commute Mr. Getsy’s sentence. Mr. Getsy’s sentence was based on his conduct and based upon our review, which included consideration of the differing Santine and Getsy sentences, I do not believe executive clemency is warranted.

Of course, the Parole Board didn't say that Getsy should live just because Santine got life. It said that the disparity was inequitable because Santine was more culpable. Maybe the Governor doesn't think that matters. In fact, Ohio law says that degree of culpability is a mitigating factor for juries to consider. It certainly seems to lurk around not the edges but the dead center of what frairness is all about.

But hey, we're just talking life and death here.

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Killer Keller goes on trial.

Meanwhile, in San Antonio, Texas, trial began in the judicial misconduct case of Sharon Keller, Chief Judge of the Texas Court of Criminal Appeals. You remember Killer Keller, as she's known. She's the one who wouldn't keep the courthouse open for Michael Wayne Richard to file a last minute motion for a stay of his execution, a motion which almost certainly would have led to a stay (albeit not from Keller's Kourt).

You can get all the background you might want from Grits for Breakfast. The Austin American-Statesman is providing live blogging of the trial. Surprises and tension already in day 1.