- The Washington Times - Thursday, September 3, 2009

Strange as it might seem, the Supreme Court of the United States has never directly and explicitly held that it is unconstitutional for a state to execute a person about whom substantial evidence of innocence has been presented.

However, in a rare exercise of the high court’s power to directly order a lower federal court to consider evidence of actual innocence concerning a man already found sentenced to death, at least three justices have declared a willingness to hold that “actual innocence” is constitutionally based.

The historic ruling came in the case of Anthony Troy Davis, who was convicted 20 years ago of the late-night shooting death of Savannah, Ga., police officer Mark MacPhail. Davis’ conviction was based not on direct physical evidence or DNA test results, but entirely on so-called eye-witness accounts.

The conviction was subsequently upheld on appeals. However, the fact that seven of nine of those eyewitnesses have recanted their testimony, coupled with the fact that none of the state or federal courts have yet heard directly from any of those witnesses, presented to the Supreme Court a strong argument that Davis should at least be allowed to make such a case.

The unusual ruling came by way of an original habeas corpus petition directly by the Supreme Court to a lower federal court. The last time the court had so acted was nearly half a century ago.

The Aug. 17 ruling cemented Justice Antonin Scalia’s reputation as the high court curmudgeon. In his scathing dissent, Justice Scalia said that a close reading of a federal law — the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) — precluded a federal court from even considering a petition from a state death sentence including evidence of “actual innocence.”

Sarcastically labeling the action ordered by the majority justices a “fool’s errand,” Justice Scalia concluded there is simply no way the evidence of innocence Davis would present would sway a court, and that even if it did, the federal district court would be powerless to do anything about it based on his reading of AEDPA.

Specifically, Justice Scalia said that AEDPA barred a habeas corpus writ regarding any state court claim unless based on “… a decision that was contrary to, or involved an unreasonable application of, clearly established federal law.” Justice Scalia surmised that, since the Supreme Court “has never held that the Constitution forbids the execution of a convicted defendant who … is later able to convince a habeas court that he is ‘actually’ innocent … ,” Davis is simply out of luck.

The Constitution of the United States was adopted in 1787; the Bill of Rights four years later in 1791. Apparently for Justice Scalia, these past 218 years have not sufficed to “clearly establish” that federal law is based on the premise that only the guilty are to be executed.

Justice Scalia correctly noted that lower courts had already considered the transcripts of witness testimony presented by Davis’ attorneys establishing his innocence. What Justice Scalia fails to mention is the important fact that no court had yet heard from the live witnesses who had recanted, and who, for example, presented evidence of police pressure to secure their testimony.

Even though Scalia Justice opines that the majority opinion leaves the district court unable to decipher what is expected of it, in fact it is very clear. The court is to conduct a full hearing at which the witnesses Davis believes will show his actual innocence are allowed to testify. And the state of Georgia will have full opportunity to rebut that testimony. This seems to me to be a pretty straightforward directive; and not one that imposes a major burden on the state of Georgia.

If the lower court conducts the hearing as directed by our nation’s top court and still concludes Davis was the shooter, so be it. Not having been there, I am not in a position to judge.

However, I was a member of the U.S. House of Representatives Judiciary Committee in 1996 when we debated and voted on AEDPA. I can state unequivocally that this legislation was not intended to preclude a claim of actual innocence based on post-sentence evidence from being considered in a habeas petition. Employing such a pinched and erroneous reading of the law to deny a condemned man the opportunity to present substantial evidence of innocence would constitute a major travesty of justice in America.

Bob Barr was the United States attorney for the Northern District of Georgia from 1986 to 1990 and served in the U.S. House of Representatives from 1995 to 2003 as a member of the Judiciary Committee.

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