UPDATED 12:42 p.m.

Refusing to decide whether the death penalty is barred for an individual with a strong claim of innocence, the Supreme Court on Tuesday turned aside the appeal of Georgia death-row inmate Troy Anthony Davis.  The order clears the way for the state to set a new execution date; a Supreme Court stay of the execution expired automatically with the denial of review. The case is Davis v. Georgia (08-66) (filings here).

Davis was sentenced to die for the murder of a Savannah, Ga., police officer in 1989.  Since the trial, all but two of the prosecution witnesses who had linked Davis to the killing have recanted their testimony, claiming police coercion or questionable interrogation tactics.  Five newly discovered witnesses have said that another man committed the crime.

In appealing to the Supreme Court, Davis’ lawyers urged the Court to issue a definitive ruling — something it had only assumed previously — that the Eighth Amendment creates a right of an innocnet person not to be executed.  The appeal also sought an evidentiary hearing so that Davis’ counsel to present the new evidence in an effort to spare his life.  In denying review on Tuesday, the Supreme Court gave no explanation, as is its custom with such denials.

The Court granted review of one new case, a test of the right to appeal after a federal judge returns a case to state court for trial, after it had been transferred to the federal court.  The issue in Carlsbad Technology v. HIF Bio Inc. (07-1437) (filings here) is whether a remand order can be appealed, if the judge returned the case after making a discretionary decision not to rule on the state-law claims after finding that the federal claim in the case had failed.  The case grows out of a dispute over ownership of a chemical compound that is used in treating cancer.

In an interesting development on one of the cases the Court declined to hear, Chief Justice John G. Roberts, Jr., in dissent, essayed what might be considered a script for a radio or TV crime show — a staccato recitation of facts, bluntly stated to give maximum dramatic effect.  The purpose of the dissent (joined by Justice Anthony M. Kennedy) was to argue that the Court should have heard a state of Pennsylvania appeal to clear up a dispute among state courts on when police have probable cause to make an arrest after they have observed a street-corner transaction, in a high-crime neighborhood, with an individual changing cash for “small objects.”  The Court made no comment as it denied review in Pennsylvania v. Dunlap (07-1486).

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