New Hope for Troy Davis

August 18, 2009
Guest Post

By Matt Kelley, who writes about prisoners' rights and criminal justice reform issues at, where this piece was initially published. He also works as the Online Communications Manager at the Innocence Project. Views expressed here are his own and do not represent any organization.

In an extremely rare move for the U.S. Supreme Court, the justices yesterday issued an order directing a federal judge to hold an evidentiary hearing in the case of Troy Anthony Davis, who has sat on Georgia's death row for nearly two decades for a crime he says he didn't commit. A pile of convincing evidence suggests that Davis is indeed innocent, and the court's move points to the strength of this evidence.

This decision also confirms that Davis' attorneys - and the army of activists who have worked tirelessly on his behalf - are making themselves heard. The justices don't live in a vacuum, and at least six of them found yesterday that allowing a man to be executed before possible evidence of his innocence is fully considered would be a grave injustice and a violation of due process.

Justices Antonin Scalia and Clarence Thomas were the lone dissenters, and new justice Sonia Sotomayor didn't participate. Scalia wrote a frightening dissent suggesting that he may consider the execution of an innocent person completely constitutional.

He 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." That's a scary sentence. But let's focus on the positive for a moment:

Justice John Paul Stevens, writing an unsigned majority opinion, offered full-throated disagreement to Scalia's callous dissent - ordering a lower court to review the case and questioning the constitutionality of the Clinton-era Antiterrorism and Effective Death Penalty Act. "It ‘would be an atrocious violation of our Constitution and the principles on which it is based' to execute an innocent person," Stevens wrote.

The fact that Justices Roberts and Alito joined the majority shows the isolation of Scalia and Thomas in their willingness to allow Davis' execution to move forward despite questions about his guilt.

Scalia's demagoguery aside, however, this case is a big win for Davis and it means evidence in his case will be fully reviewed.

Davis was convicted and sentenced to death for the 1989 shooting of a Savannah police officer. Seven of nine eyewitness against him at trial have since recanted and several have implicated one of the prosecution's star witnesses as the actual perpetrator.

The Supreme Court's decision yesterday does many things, foremost among them opening the question of whether it is constitutional to execute an innocent person. To most of us, this question seems to have an obvious answer, but Scalia apparently wants more discussion. Davis' case may give him that opportunity to discuss. Hopefully, if this question returns to the court in the years ahead, whether in Davis' case or another, I hope at least five justices will side with human decency and judicial fairness.

The decision also shows how far eyewitness identification evidence has come. The recantations of seven eyewitnesses provide the strongest evidence of Davis' innocence, and eyewitness identification evidence has increasingly come under fire in recent years. More than 75% of the 241 wrongful convictions overturned through DNA testing involved at least one misidentification. Cases like Davis', with no DNA evidence to corroborate recantations, have found appeals courts exceedingly difficult to convince in years past, but that is changing. Davis' success at the nation's highest court is another sign that eyewitness misidentification is becoming more fully understood as a common and pervasive cause of wrongful conviction, and one that needs to be addressed before we make the ultimate mistake and execute an innocent person.