NOTE TO READERS: This post has been corrected, at this link.

The Supreme Court, over two Justices’ dissents, on Monday ordered a federal judge in Georgia to consider and rule on the claim of innocence in the murder case against Troy Anthony Davis (In re Davis, 08-1443)  The Court told the District Court to “receive testimony and make findings of fact as to whether evidence that could have been obtained at the time of trial clearly establishes [Davis’] innocence.”

Justices Antonin Scalia and Clarence Thomas dissented. Some of their arguments were answered in a separate opinion by Justice John Paul Stevens, joined by Justices Stephen G. Breyer and Ruth Bader Ginsburg.   The new member of the Court, Justice Sonia Sotomayor, took no part in the Court’s action.

The action was highly unusual, because Davis had filed what is called an original writ of habeas corpus — that is, a plea for his release, filed directly in the Supreme Court rather than in lower courts.  Such claims rarely succeed.  Justice Scalia noted in his dissent that the Court had not taken a similar step “in nearly 50 years.”  (The documents that were before the Justices — the original writ, petition for certiorari, brief in opposition, and amici filings — can be downloaded here.)

The action also was unusual because the Court normally does not take actions of this significance during its summer recess. The case had been ready for the Justices’ consideration near the end of their past Term, in late June, but they simply took no action at that time.  There was no word on why the Court took it up again at this time, rather than waiting until a new Term had opened.  The length of the two opinions released Monday, however, may have taken some time to prepare, especially with most of the Justices traveling during the summer recess.

The Court did not disclose how each of the Justices had voted, other than the dissents of Justices Scalia and Thomas. Presumably, however, an order of this kind would have required the approval of at least five votes.  Justices Breyer, Ginsburg and Stevens presumably voted for the order; their opinion said the case was the type was was exceptional enough to qualify for the action.  It is unclear how Chief Justice John G. Roberts, Jr., or Justices Anthony M. Kennedy and Samuel A. Alito, Jr., voted, if they did, but it appears that at least two of them would have had to agree to the step taken.

Davis was convicted in 1991 of murdering an off-duty Savannah police officer, Mark Allen MacPhail, in 1989.  Since his trial, Davis has claimed, seven of the state of Georgia’s key witneeses have recanted the testimony they gave at the trial.  Several other individuals have implicated another man — the prosecution’s key witness against Davis — as the shooter.

The Court’s order and Justice Stevens’ separate opinion can be downloaded here . Justice Scalia’s dissent is available here

The Court’s action set off a sharply-worded exchange — Justice Stevens on one side, Justice Scalia on the other — over the strength of Davis’ claim to be innocent, and over whether the Georgia federal judge who will be conducting the new reiew has any power to rule for Davis.

The Court has never ruled on whether a credible claim of “actual innocence” justifies extraordinary remedies in federal court, when a state conviction is involved.  Davis’ case may well test that issue, as it moves through the federal courts again.  Justice Scalia, in fact, said in his opinion Monday that, if there is a genuine issue on that point, the Court itself should decide the issue.

On the merits of Davis’ claim, Justice Scalia dismissed it as “a sure loser.”  He said that the Georgia Supreme Court, the federal Eleventh Circuit, and the Georgia pardon board have all considered the very evidence that Davis now cites, and “found it lacking.”

Justice Stevens did not judge finally the merits of the claim, but hinted that he had found it at least partly supported, saying that “the substantial risk of putting an innocent man to death” justified the Court in taking the unusual action it did on Monday.

On the power of a federal judge to rule in Davis’ favor at this stage, Scalia argued that the 1996 federal law limiting federal habeas review of state criminal convictions — the Anti-Terrorism and Effective Death Penalty Act (AEDPA) — barred any federal court from hearing Davis’ claim because there was no error at his trial that violated any prior Supreme Court decision.

Scalia wrote: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”  He conceded, though, that the Court has left the issue open.

Stevens said that the District judge may have authority to act, perhaps finding that AEDPA’s limits do not apply to “original” habeas writs of the kind the Justices acted on on Monday, or do not apply to a habeas claim of “actual innocence.”  In addition, Stevens said, there may be an argument that AEDPA’s habeas limits are unconstitutional if they barred court review of such a claim.  Finally, Stevens said, it can be argued that it would be a federal constitutional violation to execute an innocent person.

All of those issues, presumably, will be canvassed initially by the federal District judge, with further review likely in both the Eleventh Circuit and, potentially, the Supreme Court.

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