Procedural History: This Is The Last Chance
All other appeals have been exhausted, lower courts have been barred from hearing appeals of the death penalty conviction for a 1989 murder, and a stay of execution has expired, but an execution date has not been set. A recent request for clemency from the five member Georgia State Board of Pardons and Paroles was denied in September, 2008, after a request raising the evidence of recantations in this case, and the Governor in Georgia does not have pardon power. So, if the U.S. Supreme Court doesn't grant this petition, there is a high probability that Davis will be executed.
A bare majority of the conservative United States Court of Appeals for the 11th Circuit denied him relief, saying that a stand alone claim of innocence can never provide a basis for a second federal habeas corpus petition, and a divided Georgia Supreme Court likewise refused to allow an evidentiary hearing to consider new evidence. So, no court has heard the recantation or confession by an alternate suspect evidence.
The Issue: Does Post-Conviction Innocence Evidence Ever Matter?
This is a classic case pitting the finality of a trial court conviction for a crime, which exhaustive appeals for almost two decades have determined were procedurally correct in all material ways according to the trial court record, against new evidence, contradicting evidence offered at trial or not available at trial, strongly suggesting that the defendant was innocent. Specifically:
Davis was sentenced to death after being convicted of the murder of a Savannah, Ga., police officer on August 19, 1989. Since the trial, seven of the nine witnesses who said Davis had done the killing have recanted their trial testimony, saying they were coerced by police or were subjected to questionable interrogation tactics. Davis’ lawyers also said that newly discovered witnesses have said that another man at the scene committed the murder of Officer Mark MacPhail, and that the other man himself had confessed to friends.
In the new petition, Davis’ counsel wrote that “a study of federal habeas case law reveals no case in which seven State witnesses have recanted their testimony, much less a case with seven recantations supplemented by four confessions from the alternative suspect. Moreover, the recantations presented to this Court are to the rare variety: recantations from State witensses who were innocent bystanders.”
Almost all recantation cases over the past ten years that have been summarily rejected without an evidentiary hearing involved recantations from accomplices or a family member” of the accused, the petition said.
The facts described in the petition to the U.S. Supreme Court make clear that this was not a case were the convicted defendant, and the alleged actual killer were co-conspirators arguing over who the triggerman was, as in a typical felony murder case. This is a true actual innocence claim that goes directly to the validity of the conviction of Davis for any crime.
The petition asks for a new evidentiary hearing to review the recantation and confession evidence. American criminal procedure is generally much more amendable to considering flaws in the original trial process than it is to considering new post-conviction evidence of innocence. Conservatives in death penalty state are particularly loathe to open up this avenue of appeal.
The U.S. Supreme Court will now decide if it is willing to craft some narrow exception to the general rule that criminal convictions are final to fit the extraordinary facts of the Davis case.