ANALYSIS: Joe Biden to Blame for Troy Davis’s Fate?
(APN) ATLANTA — With the US Court of Appeals panel’s split ruling putting Troy Davis again, for the fourth time, on track to be executed by the State of Georgia, the role of 1996 federal death penalty legislation championed by Vice President Joe Biden–then a US Senator from Delaware–comes to light.
Davis, whose case has drawn international attention, is on death row for the convicted murder of a Savannah police officer. Davis’s family and attorneys have produced affidavits from 7 out of 9 witnesses recanting their statements at trial, implicating another man as guilty, and alleging police coercion as the reason for why these witnesses testified against Davis in the first place.
However, court after court continues to refuse to hear from the witnesses.
The two judges making up the majority decision on the panel quote former US Sen. Biden, as well as US Sens. Dianne Feinstein (D-CA) and Edward Kennedy (D-MA) in their 50 page explanation.
“The vast majority of us… want to and have been trying for years to change the old system to limit the time in which a petition can be filed and to limit the number of petitions that can be filed. So essentially you get one bite out of the apple,” then-US Sen. Biden (D-DE) said, according to the 1995 Congressional Record.
“The proposal to limit inmates to one bite at the apple is sound in principle,” US Sen. Kennedy had said.
The judges, in the recent decision against Davis, go on to write that the intent of US Congress is clear and unambiguous, and that they do not want to go against the wishes of Congress.
“A lot of Democrats particularly in the 90s were on the tough on crime bandwagon. It was to their advantage to tell the public we’re tough on crime,” Laura Moye, Southern Regional Deputy Director for Amnesty International USA, told Atlanta Progressive News.
Enacted in 1996, the Anti-Terrorism and Effective Death Penalty Act , among other things, placed limits on the grounds upon which someone on death row could request a new federal hearing.
The AEDPA “tightened these limits by requiring successive petitioners to show both cause – or diligence – as well as a fundamental miscarriage of justice – or actual innocence,” the majority judges noted.
In terms of due diligence, the court asks that the defendant explain why they were not able to bring these claims in their first federal appeal. “The question is, could you have brought this to us earlier,” Moye said.
“In addition, [the new law] also requires successive petitioners to establish actual innocence by clear and convincing evidence, a far more demanding showing,” the judges noted.
In Davis’s case, the judges’ decision details how Davis and his attorneys did, in fact, present his affidavits in his last round of appeals.
However, the judges argue that Davis presented the evidence in the context of a procedural argument concerning due process, and not in the context of actually claiming innocence.
The judges cite federal law and previous courts’ interpretations to argue that Davis should have presented his innocence claims first, and that if he lost, he could have then appealed on procedural grounds. However, they argue he cannot do the reverse.
“We must consider whether Davis has made a prima facie showing establishing the first requirement whether the factual predicate for his [innocence] claim could not have been discovered previously through the exercise of due diligence,” the judges wrote.
“What matters is whether [Davis], with the exercise of due diligence, could have discovered [the facts he now presents to us] at the time he filed his first federal habeas petition.”
“Davis suggests that he was diligent in gathering the new evidence underlying his [innocence] claim because he brought this very evidence to the first federal habeas court,” they wrote.
“The problem with this argument, however, is that he did not present evidence of actual innocence to the district court in support of a Herrera freestanding actual innocence claim. Rather, he used this evidence only to argue that, under Schlup, he could overcome the procedural default of the other constitutional claims he sought to pursue.”
“They’re penalizing him for not playing the game exactly properly by saying, why didn’t you bring up this claim at that time?” Moye said, “At a time when the federal government cut the state resource centers [for indigent defense] and two attorneys were representing about 80 people.”
“They have this standard that’s not attainable in real life,” Moye said.
Moye questions the judge’s separate consideration of the constitutional error and the innocence claim.
“Isn’t it a constitutional error to be innocent on death row? The fact you would need some kind of supporting argument to being innocent seems ludicrous,” Moye said.
Judge Rosemary Barkett dissented from the majority opinion.
“This case highlights the difficulties in navigating AEDPA’s thicket of procedural brambles,” Barkett wrote. “While we must deal with the thorny constitutional and statutory questions before us, we also cannot lose sight of the underlying issue in this case.”
“Simply put, the issue is whether Troy Anthony Davis may be lawfully executed when no court has ever conducted a hearing to assess the reliability of the score of affidavits that, if reliable, would satisfy the threshold showing for a truly persuasive demonstration of actual innocence, thus entitling Davis to habeas relief.”
“To execute Davis, in the face of a significant amount of proffered evidence that may establish his actual innocence, is unconscionable and unconstitutional,” Barkett wrote.
“The majority takes the position that we cannot permit Davis to bring his evidence before the district court because our discretion to do so is constrained by AEDPA. But AEDPA cannot possibly be applied when to do so would offend the Constitution and the fundamental concept of justice that an innocent man should not be executed,” Barkett wrote.
“In this case, the circumstances do not fit neatly into the narrow procedural confines delimited by AEDPA. But it is precisely this type of occasion that warrants judicial intervention,” Barkett wrote.
Moye argues Davis’s case highlights the problems with AEDPA and the death penalty in general.
“The fundamental problem with the death penalty is, at what point do you limit somebody’s access to the justice system, when you have a system of punishment that’s irreversible?” Moye said.
“What level of risk of executing an innocent person is acceptable? So if you speed up the process, you increase the likelihood of horrific error. It’s inherently problematic,” Moye said.
WHAT HAPPENS NEXT?
Amnesty International and Georgians for Alternatives to the Death Penalty have set an emergency day of worldwide action for May 19, 2009, to include a demonstration at the Georgia Capitol.
Meanwhile, the federal appeals court issued a 30 day stay, which would be lifted on May 16, in which time Davis can appeal to the Supreme Court of the US.
“They were trying to bump it back to the US Supreme Court like they didn’t want to deal with it,” Moye said.
“We’re encouraging people to keep sending letters to the governor,” Moye said.
If the Supreme Court of the US does not intervene, the State of Georgia could execute Troy Davis as early as June 2009.
“The odds [of Supreme Court intervention] are very, very bad, but it’s not an impossibility. They would be going to the Supreme Court now with this sort of stand-alone innocence claim. The Supreme Court could take a look at AEDPA and maybe they could make some sort of decision about whether part or all of law is unconstitutional,” Moye said.
“Or they could say they disagree with the 11th Circuit decision, that [proving] an additional constitution error is not needed,” Moye said. “Or they could disagree on the due diligence issue.”
About the author:
Matthew Cardinale is the News Editor for The Atlanta Progressive News and is reachable at matthew@atlantaprogressivenews.com.
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