U.S. Supreme Court to Consider Constitutional Right to DNA Testing

On November 3, the US Supreme Court agreed to hear a non-capital case from Alaska in which the defendant asserts that the constitution requires the state to allow DNA testing on evidence from his trial so that he can prove his innocence. In District Attorney's Office v Osborne (No 08-6), the Court will initially consider whether William Osborne may bring a civil rights claim (under 42 USC 1983) demonstrating that the state has violated his constitutional right to due process by refusing to turn over the evidence for testing. Osborne was convicted in 1994 of a sexual assault and the testing on evidence from the crime scene tended to point to his guilt. Today, however, more sophisticated testing is available that might exonerate Osborne.

The case is on appeal by the state of Alaska, which is challenging a ruling from the U.S. Court of Appeals for the Ninth Circuit that held that Osborne was entitled to the testing partly because the state is required to turn over exculpatory evidence even after a defendant's trial. The state has argued that there needs to be finality in its courts' decisions, but the Ninth Circuit stated:

Although finality is undoubtedly an important consideration,
it is not such an immovable force as to override the due
process interests presently at stake. If Osborne already had in
hand the exculpatory evidence he seeks and filed a habeas
petition stating a valid claim for relief, there would be no
question that his petition must be heard despite finality considerations.
. . . Though no doubt eroding finality, such an exception “serves as ‘an additional safeguard against
compelling an innocent man to suffer an unconstitutional loss
of liberty,’ guaranteeing that the ends of justice will be served
in full.”

(Osborne v. District Attorney's Office, No. 06-35875 (9th Cir. April 2, 2008) (internal citations omitted).

(See, Nov. 3, 2008). See also Supreme Court and Innocence.

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Troy Davis Execution Stayed by Federal Appeals Court

The US Court of Appeals for the 11th Circuit issued a stay for Georgia death row inmate Troy Davis on October 24. The federal appeals court’s three-judge panel ordered both sides to draft briefs to address wheter Davis can be executed if he can demonstrate his likely innocence. Davis’ case has garnered both international and national attention. Former President Jimmy Carter and the European Union were among those calling for a stay of execution. Davis was scheduled to be executed on October 27 after the U.S. Supreme Court denied review following Davis' unsuccessful appeal to the Georgia Supreme Court.

Davis' original conviction was based primarily on eyewitness testimony. Since the 1991 trial, 7 of the 9 non-police eyewitnesses have recanted their testimony, with some pointing to another suspect.

(G. Bluestein, “Appeals court halts execution of Ga. Cop killer,” Associated Press, October 24, 2008). See Innocence.

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SUPREME COURT: Justice Stevens Questions Thoroughness of Review by Georgia Supreme Court

Supreme Court Justice John Paul Stevens took the occasion of the Court's denial of review to a death row defendant in Georgia to question the adequacy of the appeals process in that state. On October 20, the Supreme Court denied certiorari in Walker v. Georgia, an appeal from the Georgia Supreme Court, and Justice Stevens concurred in that denial. However, Justice Stevens said he found the lack of careful scrutiny by the lower court to be "particularly troubling," especially since the case involved a black defendant and a white victim. Justice Clarence Thomas also wrote separately in the case, sharply disagreeing with Justice Stevens, and maintaining that no proportionality review by the Georgia Supreme Court was constitutionally required.

Justice Stevens wrote:

I find this case, which involves a black defendant and a white victim, particularly troubling. . . Rather than perform a thorough proportionality review to mitigate the heightened risks of arbitrariness and discrimination in this case, the Georgia Supreme Court carried out an utterly perfunctory review. Its undertaking consisted of a single paragraph, only the final sentence of which considered whether imposition of the death penalty in this case was proportionate as compared to the sentences imposed for similar offenses.

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U.S. Supreme Court Declines to Review Troy Davis Case

The U.S. Supreme Court denied certiorari in the Troy Davis case on October 14, despite his claim of innocence. Davis had petitioned the Court to intervene in his case after seven of the nine non-police witnesses against him recanted their testimony. His lawyers said the new evidence demonstrated his innocence and that another man had even confessed to the killing. The Georgia Board of Pardon and Paroles could still review its earlier decision to deny clemency to Davis.

(G. Bluestein, “High court turns down GA death row inmate,” Associated Press, October 14, 2008). See Davis v. Georgia (08-66) (filings here). See also Innocence and U.S. Supreme Court.

In another case, the U.S. Supreme Court on Oct. 13 denied review to Richard Cooey in Ohio. Cooey had raised a challenge to the way that lethal injection would be used in his execution. He was executed in the morning of Oct.14. (, Oct. 14, 2008). This is the only execution outside of the south in 2008.

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Questions Before the U.S. Supreme Court in the Troy Davis Case

The United States Supreme Court is currently considering whether to hear the case of Troy Davis or to allow his execution to go forward. The Court stayed his execution on September 23, less than two hours before it was to take place.  The formal term for agreeing to hear a case is "granting a petition for certiorari."  Davis' attorneys submitted such a petition, raising a number of questions on which the Court could grant a hearing.  The first question presented to the Court is:

"Does the Eighth Amendment to the U.S. Constitution create a substantive right of the innocent not to be executed so as to invoke the procedural requirements of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution when substantial evidence of innocence is discovered?"

Davis' petition to the Supreme Court is an appeal of the decision by the Georgia Supreme Court denying him an evidentiary hearing to examine evidence of his innocence. Davis claims that the 8th Amendment, which forbids cruel and unusual punishments, bars the execution of defendants with substantial reliable evidence of their innocence obtained since trial. Georgia lower courts refused to grant an evidentiary hearing in the case on the grounds that the new evidence--the recantation of the eyewitness testimony of 7 of 9 non-police witnesses and additional testimony implicating one of the eyewitnesses as the shooter--does not meet Georgia state law standards pertaining to the applicability of recantation testimony. However, the dissenting State Supreme Court judges argued that the “application of the majority’s ‘categorical rule’ against recantation evidence ‘fails to allow an adequate inquiry into the fundamental question, whether or not an innocent person might be convicted or even, as in this case, might be put to death.’”


In Herrera v. Collins (1993), the U.S. Supreme Court assumed that “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.”  Davis is asking the Court to go beyond this assumption and hold that the constitution bars the execution of a demonstrably innocent defendant.  If the Court so holds, it follows that Davis is entitled to an evidentiary hearing to protect that right under the "due process" clause of the 14th Amendment .  At such a hearing, the recantation of the eyewitnesses could be closely examined.

Davis' petition raises two other related questions that the Supreme Court could agree to consider:

"Alternatively, the Due Process Clause of the Fourteenth Amendment protects State-created liberty interests when State law mandates a decision favorable to an individual based on a set of substantive predicates. Georgia law creates an Extraordinary Motion for New Trial that mandates a new trial based on newly-discovered evidence if the defendant can show that the new evidence meets six substantive predicates. Does Georgia’s Extraordinary Motion for New Trial create a liberty interest protected by procedural due process?"

Here, Davis' request for a hearing rests on his claim that Georgia's state law surrounding a motion for a new trial creates a federally protected right involving his life and liberty.  To ensure that such a constitutional right is respected, a hearing on his new evidence is required.

Finally, Davis asks the Court to consider:

"If either the Eighth Amendment or Georgia law creates a liberty interest protected by the Due Process Clause, does the Supreme Court of Georgia’s failure to grant an evidentiary hearing to review the cumulative substance and credibility of Mr. Davis’ admissible new innocence evidence violate the procedural requirements of the Due Process Clause?" 

In other words, is Georgia's denial of a hearing unreasonable, given what is at stake?  Once the Court recognizes that Davis is raising a right protected by the Due Process Clause, the question of whether he should receive a hearing is governed by a balancing of the various interests of the defendant and the state.  For Davis, without a hearing he could lose his life, even though he may be innocent; for the state, granting a hearing only requires them to delay their carrying out of their sentence.

Davis claims that in making their decision, the lower courts looked at each piece of his new evidence in isolation from all others, rather than conducting a cumulative analysis of all of the evidence, as the U.S. Supreme Court has repeatedly instructed lower courts to do. Davis' attorneys argue that if the evidence is looked at cumulatively, the recantation testimony could have the effect of undermining confidence in the original verdict.  Davis' attorneys noted that eyewitness misidentification testimony has been a factor in 77% of all post-conviction DNA exonerations, highlighting the fallible nature of the type of testimony in question here. The prosecution’s case against Troy Davis was comprised almost entirely of eyewitness testimony. Davis' petition states: “Society, thus, has an interest in ensuring that the executed who can produce substantial, admissible new evidence of their innocence are not executed without the opportunity to vindicate themselves through minimal due process required by our Constitution.”

The Supreme Court is expected to consider Davis' petition at its meeting on Friday, October 10.  See Troy Davis' Cert. Petition to the U.S. Supreme Court. See also Innocence and U.S. Supreme Court.



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International Law Experts Question Supreme Court Decision in Medellin Case

Notable international law experts cited in a recent article in the Washington Lawyer criticized the Supreme Court’s 2008 decision on whether an international treaty was binding on Texas in the case of death row inmate Jose Medellin. Carolyn Lamm, an attorney at White & Case specializing in international dispute resolution, stated that "[T]he failure to compel our state court organs to comply with the decision of the ICJ [International Court of Justice] is regrettable, and the dissenting opinion that the language was self-executing is correct.” In August 2008, Texas executed Medellin despite the judgment of the ICJ that his rights and those of 50 other foreign nationals on death row were violated under the Vienna Convention of Consular Relations due to a failure to inform the inmates of their right to contact their country’s consulate for assistance upon arrest.

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U.S. Supreme Court Denies Rehearing in Kennedy v. Louisiana Opinion

On October 1, the U.S. Supreme Court denied Louisiana's request for a rehearing of the Court's ruling striking down the death penalty for non-homicidal offenses against individuals. Louisiana contended that a recent adjustment to military law that continued to allow the death penalty for child rape should have been taken into account by the Court, resulting in a different opinion. The Court slightly modified both the majority and dissenting opinions to include reference to the military code. The Court issued a statement, leaving intact its decision not only reversing Patrick Kennedy's death sentence for child rape, but also holding that the death penalty would be disproportionate for any crime against an individual in which the victim is not killed.  The statement said, in part:

[A]uthorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context. The military death penalty for rape was in effect before the decisions in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), and Coker v. Georgia, 433 U. S. 584 (1977); and when the Court surveyed state and federal law in Coker, it made no mention of the military penalty.

. . .

That the Manual for Courts-Martial retains the death penalty for rape of a child or an adult when committed by a member of the military does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty here is unconstitutional.

On June 25, the U.S. Supreme Court struck down as unconstitutional the Louisiana statute that allowed the death penalty for the rape of a child where the victim did not die. The Court held that all such laws, where the crime against an individual involved no murder or intent to murder, were not in keeping with the national consensus restricting the death penalty to the worst offenses. As a result, the only two people sentenced to death for this crime in the modern capital punishment era no longer face execution. Both were sentenced under the Louisiana statute that was found unconstitutional. Today, no one is on death row for any offense not involving murder.

The Court noted that the defendant, Patrick Kennedy, had been sentenced to death under a law that was not embraced by 44 out of the 50 states. The Court pointed to the danger in laws such as Louisiana's, which allowed the death penalty where no murder was committed: "When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint."

Victims' groups and child advocates had concluded that the death penalty for child rape could actually harm children, rather than protect them. Some of the reasons they cited included a possible decrease in reporting, re-victimization through the lengthy appeals or re-trials, and that equating rape to muder sends the wrong message to child victims.

(Kennedy v. Lousiana, 07-343 U.S. (2008); Order modifying the opinion and dissent, Oct. 1, 2008). See Supreme Court and DPIC's Kennedy v. Lousiana page.

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Professor Anthony Amsterdam To Receive the Frederick Douglass Human Rights Award

Leading attorney, law professor, and advocate Anthony Amsterdam is being honored by the Southern Center for Human Rights with the Frederick Douglass Human Rights Award in Washington, DC on October 2. Professor Amsterdam conducts the Capital Defender Clinic at New York University Law School and is recognized for his four decades of prominent work in cases ranging from death penalty defense to claims of free speech and the press, privacy, and equality of opportunity for racial minorities and the poor.


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U.S. Supreme Court Stays Georgia Execution in Case With Strong Evidence of Innocence

The U.S. Supreme Court issued a stay of execution for Georgia inmate Troy Davis on September 23 only two hours before his scheduled execution. Evidence of his innocence has garnered national and global attention, with pleas for clemency coming from former President Jimmy Carter, Desmond Tutu, and Pope Benedict XVI. Seven of the nine non-police witnesses who testified against Davis at his original trial have recanted their testimony, including two who have said they felt pressured by police to testify against Davis. The Georgia Supreme Court and the state Board of Paroles and Pardons have denied requests for a new trial and clemency, despite the lack of physical evidence implicating Davis.

The Supreme Court issued the stay without explanation and will decide on September 29 whether to hear his case. If they choose not to hear his claims, the stay will automatically terminate and Georgia can proceed with the execution. Davis' lawyers appealed to the Court to decide whether the Eighth Amendment bars the execution of a convicted person who could likely prove his innocence. In their petition to the Court, his attorneys wrote that the case, "allows this court an opportunity to determine what it has only before assumed: that the execution of an innocent man is constitutionally abhorrent." (Read Davis' Cert. Petition to the U.S. Supreme Court).

Kent Scheidegger, a death penalty supporter at the Criminal Justice Legal Foundation in California, said the intervention by the Court is "not usual but not too rare either." He added, "I'm not terribly surprised. This fellow has enough of a claim of innocence that many people say he's innocent."

(R. Brown, "With 2 hours to spare, justices stay execution," New York Times, September 24, 2008). See also Innocence and U.S. Supreme Court.

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Upcoming Supreme Court Cases

The U.S. Supreme Court will return to hear oral arguments in its new term on October 6. To date, the Court has granted certiorari in (agreed to hear) three death penalty cases. Bell v. Kelly will be argued on November 12, 2008. This case originated in Virginia and concerns the scope of federal review when the state court has failed to develop an issue. Edward Bell claimed that his attorney failed to present important mitigating evidence at this sentence hearing, but this claim was not fully explored in state court.

In Cone v. Bell, which will be argued on December 9, 2008, the Court will review a case from Tennessee that has been before it on two previous occasions. In the present case, the issue is whether federal courts can consider matters that have been dismissed on state procedural grounds. Gary Cone claimed that his prior drug use should have served as a mitigating factor at this sentencing hearing. The state court dismissed the claim for lack of evidence. In a prior case before the Supreme Court, Cone asserted that his trial attorney failed to provide adequate representation. The attorney, himself, was suffering from mental illness and later committed suicide, but Cone's death sentence was upheld.

Finally, the Court will hear Harbison v. Bell on a date to be determined. This case also orginates in Tennessee and concerns a federal law providing for representation in capital cases. The issue is whether this representation should extend to an inmate's state clemency petition.

See Supreme Court.

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