How could this happen? A few weeks ago, on September 21, Troy Davis was executed for murdering a police officer in Georgia, despite seven witness recantations and even an alleged confession from another man. So how is it that all of Troy’s appeals failed?
Below, I’m going to explain what are widely considered to be the big legal issues in the case. I must preface this by saying that in doing so, I am choosing to focus on certain appeals filed by Troy Davis and his attorneys.
In a Georgia state court in 1991, Troy Davis was convicted of murdering a police officer and sentenced to death.
In 1992, Troy began his state direct appeals. In accordance with Georgia capital punishment law, Troy’s case was automatically appealed directly to the Georgia Supreme Court. Troy’s trial attorneys were appointed to represent him on appeal, while a new attorney was appointed to review the record for effective assistance of counsel. The key here is recognizing that direct appeals don’t allow the inmate to do much in terms of new evidence. Troy could not have re-interviewed witnesses; these appeals are limited to allegations of procedural errors by the trial court. By 1993, his convictions were affirmed in the Georgia Supreme Court and the U.S. Supreme Court declined to hear his appeal.
a writ of habeas corpus is a petition filed by prisoners which essentially says “prison warden, you are illegally holding me in custody, because I did not do what you say I did—prove otherwise or set me free.” Inmates can seek this remedy only after their trials and direct appeals have failed.
So is this different then a prisoner just appealing his conviction?
Yes—once direct appeals have failed, this is the prisoner’s next (and final) resort. Prisoners can do much more with habeas appeals than direct appeals—they can re-interview witnesses, introduce new evidence, etc.
In 1994, Troy began his state habeas corpus appeals. It is important to note that there is no ‘right to counsel’ for death penalty convicts seeking habeas relief, the theory being that a ‘right to counsel’ for direct appeals should be sufficient for constitutional purposes. Troy’s first habeas petition failed largely because of ineffective counsel—the nonprofit representing him lost much of its funding and did not re-interview witnesses for the habeas petition, as it should have. The recantations and new evidence remained undiscovered. As a result: the petition was denied in 1997.
Antiterrorism & Death Penalty Act (AEDPA): The AEDPA was passed in 1996, in the wake of the Oklahoma City Bombing to “to deter terrorism, provide justice for victims, [and] provide for an effective death penalty.” The Act made filing multiple habeas petitions much more difficult. The relevant part of the AEDPA for Troy Davis’s purposes is codified in 28 U.S.C. § 2244:
(b)(1) A claim presented in a second or successive habeas corpus application . . . that was presented in a prior application shall be dismissed.
(b)(2) A claim presented in a second or successive habeas corpus application . . . that was not presented in a prior application shall be dismissed unless:
- §(b)(2)(A) The applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; OR
- §(b)(2)(B): (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; AND (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
In 2001, with his state court appeals exhausted, Troy filed a federal habeas corpus appeal in the U.S. District Court for the Southern District of Georgia. Between 1996 and this appeal, seven of the nine eyewitnesses had changed all or part of their trial testimony.
By now, Troy was on his second habeas corpus appeal (as he had already lost his habeas petition in state court), which brought his case under the AEDPA portion quoted above. Because § 2244(b)(1) bans bringing the same habeas claims twice, he had to satisfy one of the exceptions in § 2244(b)(2) in order to move forward with this second habeas petition.
Troy could not have satisfied § 2244(b)(2)(A). It is very rare that the Supreme Court makes a new ruling on constitutional law and also declares that it should apply retroactively. In death penalty law, this would be relevant to Troy if he was mentally challenged or a juvenile, because the Supreme Court has said that it is unconstitutional to execute those inmates—even if they were on death row before the new constitutionality decisions were reached.
This left Troy with § 2244(b)(2)(B), where he had to satisfy both (i) and (ii). His problem was with (i). The new evidence was theoretically attainable when he filed his first habeas petition. Although at the time he faced obstacles with counsel, he still—in theory—could have interviewed witnesses and presented the recantations in the first habeas proceeding. Moreover, Troy could not make an appeal arguing that his habeas counsel was ineffective because, as mentioned, he had no ‘right to counsel’ in the habeas proceeding in the first place.
That wasn’t the end of Troy’s problems. To even begin satisfying the criteria under § 2244(b)(2)(B), he needed to find a claim that he had not made in the previous habeas petition. He had made virtually all procedural claims in that first petition, leaving him with nothing the next go-around except a simple proclamation that he was innocent. This was the big constitutional issue in Troy’s case.
Why was that such a big deal? Because what Troy wanted to claim had never been addressed explicitly by the Supreme Court. Is it unconstitutional to execute an innocent man? Believe it or not, the Supreme Court has never decided this. When the Supreme Court exercised its original habeas jurisdiction in Troy’s case, (something it hadn’t done for any case in nearly 50 years), it remanded this very issue to the Southern District of Georgia.
The Southern District of Georgia did a thorough job and actually agreed with Troy on the primary issue—that yes, it is unconstitutional to execute an obviously innocent man.* Because of this, it seemed as though Troy’s big battle was about to be won. But there was one crucial stage left. He had to prove “actual innocence,” which means that no reasonable juror could have found him guilty. Prior to the AEDPA in 1996, a defendant in Troy’s position would only have to prove something termed “actual innocence of the death penalty.” By changing the standard, the AEDPA made it substantially more difficult to avoid execution. To illustrate how these standards dramatically differ, here is a hypothetical:
Jones is convicted of rape and murder. He is eligible in State X for the death penalty because he not only murdered his victim, but he raped her as well.
To prove “actual innocence of the death penalty,” he need only cast substantial doubt on the factor that made him eligible for the death penalty: the rape. Jones must prove he did not rape the victim, and therefore he is not eligible for the death penalty. He does not have to prove he did not murder her; he only has to disprove the factor that made him eligible for the death penalty. Thus, he may wind up in prison for life, but the remedy here is to get the death penalty portion of the conviction overturned.
To prove “actual innocence,” Jones needs to cast substantial doubt on the entire conviction. Even if he has perfect proof that he did not rape the victim that he murdered, he can only get his death penalty conviction overturned if he proves he was 100% innocent of being involved in the entire incident. As you can see, this is a significantly tougher burden to meet.
Thus, the District Court heard Troy’s “actual innocence” argument, but nevertheless concluded that the recantations were “smoke and mirrors” and not enough to deny that some reasonable jurors may still have convicted him. On August 24, 2010, the court concluded: “Troy has failed to make a showing of actual innocence.” At that legal juncture, one thing was solemnly clear: Troy’s execution was imminent.
*Bear in mind that although the U.S. Supreme Court remanded its decision to the district court, its decision wasn’t adopted by the U.S. Supreme Court so it isn’t a controlling rule of the land. The District Court’s lengthy opinion is available in two PDF documents: Part I and Part II.