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The Troy Davis papers

Lawyers for Georgia death-row inmate Troy Anthony Davis, pressing his claim that he did not commit a murder more than 21 years ago, have suggested four different ways that the Supreme Court might review his case.  The filings, submitted last Friday, are now available, in cases docketed as 10-949 and 10-950, both titled Davis v. Humphrey.  (The blog posted earlier on the filings, here.).

Davis’s counsel filed a cert. petition in 10-949 (here, with appendix here), and a combined jurisdictional statement, original petition for habeas corpus, and petition for common law writ of certiorari in 10-950 (one document, found here).   The documents seek review of a federal District Court ruling rejecting the claim of innocence, and an Eleventh Circuit Court decision refusing to hear an appeal from that rejection.  The case is back at the Court after the Justices ordered it reviewed by the District Court (in In re Davis, 08-1443).

The papers make it clear that Davis’s legal team first is seeking a review of his innocence argument and evidence by the Eleventh Circuit.  If the Court accepted that option, his lawyers suggested, it should order the Circuit Court to allow Davis to appeal there to challenge the ruling against him by District Court Judge William T. Moore of ‘Savannah.

Thus, the cert. petition in 10-949 raises the question whether the Circuit Court had jurisdiction to review Judge Moore’s ruling in a case that was transferred to him by the Supreme Court.  While the Circuit Court concluded that the Supreme Court in this case had used its original jurisdiction under Article III of the Constitution, Davis’s petition argued that the Constitution puts strict limits on the Court’s original jurisdiction, and this case does not fit within those limits.   Mr. Davis, the petition noted, “is not an ambassador, foreign official, or U.S. state,” so the Court has no original jurisdiction in his case.

While Davis got action from the Supreme Court after filing what is called an “original” habeas writ, that term is misleading, the petition said.  Such pleas for the Court to issue a habeas writ are filed directly in the Supreme Court, but they come under its authority to hear appeals, not “original” cases within the Constitution’s meaning, according to Davis’s petition.   “This Court,” it added, “has recognized the appellate nature of its habeas jurisdiction for over 200 years,” citing Chief Justice John Marshall in the 1807 case of Ex parte Bollman.

The Circuit Court’s refusal to allow an appeal, the petition argued, was “an anomalous outcome” involving procedural limits that do not apply at all to Davis’s case.  “If  the decision stands,” it asserted, “the most exceptional habeas cases will be entitled to the least amount of judicial oversight.”

“To ensure that Mr. Davis receives the judicial review that this remarkable case of actual innocence demands and that Congress provided, the Court should grant the petition, reverse the decision below, and direct the court of appeals to issue a certificate of appealability,” the petition said.

The Court must act, the petition insisted, “to ensure that appellate review continues to be a viable safeguard against the execution of innocent men and women.”

On the merits of his claim of innocence, Davis’s petition says that that claim was “sufficiently exceptional to warrant invocation of the Court’s original habeas jurisdiction for the first time in nearly 50 years….Necessarily implicit in this Court’s transfer is that proceedings in the district court would be subject to further appellate review.”

The papers argue that Judge Moore, in finding that Davis is not innocent, not only “committed serious errors of law but also issued a decision that is manifestly against the weight of the evidence.”  A federal appeals court, the petition added, is “best equipped, at least in the first instance, to undertake the meticulous review required of such claims.”

If, however, the Justices deny review of the case in 10-949, Davis’s lawyers then urged it to take on the case and directly review Judge Moore’s decision.  Three of the questions raised in 10-950 are directly tied to the District Court ruling.  (The fourth raised the same issue as the other document, on the Circuit Court’s authority to review Judge Moore’s decision.)

The first question in 10-950 asked the Court to clarify the standard of court review for claims of innocence.  That question seeks to test whether the burden of proof on an innocence claim is the same as the Court laid down in the 1992 case of Sawyer v. Whitley for judging errors in the imposition of a capital sentence.   The Court, the document said, has not yet articulated a standard of proof for a free-standing claim that an individual did not commit a crime — that is, the claim is made separate from any assertion of a constitutional violation in the trial.  Even at a trial where constitutional protections are provided, they “often fail,” resulting in conviction of the innocent, the petition asserted.

The second question challenged Judge Moore’s exclusion of evidence that would indicate that another man had repeatedly confessed to the murder.   Davis has contended that another man at the scene of the shooting of an off-duty police officer in Savannah in 1989 was the killer.  That individual is a man named Sylvester “Redd” Coles.   Judge Moore, the petition said, should have considered that evidence in order to see the cumulative effect of everything that might show Davis was innocent.

The third question asked the Court itself to decide  whether all of the evidence Davis’s lawyers had presented sufficiently established his innocence, so that carrying out his death sentence would be cruel and unusual punishment under the Eighth Amendment.

The bulk of that separate document deals with the evidence in the case, directly challenging Judge Moore’s conclusions.

In the concluding part of that filing, Davis’s lawyers made their argument for direct review of the innocence claim, if the Justices do not order the Circuit Court to conduct that review first.  “The jurisdictional path for Mr. Davis’s appeal is unsettled,” the paper conceded.

It went on to outline three alternative paths for direct Supreme Court review.

The first is direct review by noting jurisdiction over the case, on the theory that existing federal law permits that route, or on the separate theory that Judge Moore was acting as a kind of legal adviser to the Court — like a Special Master or Magistrate Judge — so the Court may now review what he did with the case.

The second and third possible paths involve what are called “extraordinary writs” — that is, an original writ of habeas corpus, like the one Davis’s lawyers filed in 08-1443, leading to the transfer to Judge Moore for review, and the common law writ of certiorari.

The path that the Court will choose among these approaches is unclear.  It has the option of denying review altogether, perhaps by denying the petition to review the Circuit Court’s denial of appeal rights, or by finding it has no jurisdiction, or by refusing to issue an extraordinary writ.   It also has the often of pursing any one of the three approaches suggested to it.

While the two new filings are expected to be considered together, the earlier case that led to the transfer to Judge Moore — that is, the case docketed as 08-1443 — is expected to simply remain on the Court’s docket, without further action on it.

Under the normal schedule, the state of Georgia will have until Feb. 24 to respond to both the new cert petition and the jurisdictional document — unless it obtains an extension of time to make those filings.   It seems most unlikely that the Court, if it takes on the case in any form, would resolve it during the current Term.

Recommended Citation: Lyle Denniston, The Troy Davis papers, SCOTUSblog (Jan. 26, 2011, 1:22 PM),