On Troy Davis and Freestanding Innocence

23May09

Originally published in two parts at Dreamwidth.

Instead, I’ll be catching up on Troy Anthony Davis’s freestanding innocence claim, which has just been filed as a plea for original writ in SCOTUS. IIRC, SCOTUS has not granted an original writ of habeas corpus since 1925.

(EDIT: in re Grossman, 267 U.S. 87 (1925). My memory is not as crap as I’d thought. Also, a good history of the original writ is available in the Felker v. Turpin opinion, if anyone is into legal history.)

Davis’s case is complicated by the fact that his is a freestanding innocence claim, or a claim that “look, I didn’t do this and here is evidence,” rather than a claim of “the court did not play the game according to the rules.” The problem with freestanding innocence claims on habeas is that they may not exist. Section 2254 of AEDPA limits federal habeas review of state convictions to claims that are “contrary to, or involve[] an unreasonable application of, Federal law, as determined by the Supreme Court of the United States”, or which “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

As I understand it, Mr. Davis’s freestanding innocence claim is based, at least in part, on the fact that seven eyewitnesses who testified at his trial have since recanted. While common sense has us all going “wtf? of course he’s innocent! Grant his fucking writ already!”, the law itself is not on Mr. Davis’s side.

First, there IS no “contrary or unreasonable application of” Federal law involved in a freestanding innocence claim. (Arguably. There have been arguments that convicting innocent people is itself a contrary or unreasonable application of law, its spirit if not its letter. SCOTUS has not been all that impressed with such arguments in past, mostly because if convicting innocent people is a “contrary or unreasonable application of” any law, it’s the State law under which he or she was convicted, which is not appropriate grounds for federal review.) Freestanding innocence is not “the court screwed me by not playing by the rules.” It’s “I didn’t do this.”

The closest SCOTUS has ever gotten to admitting the viability of a freestanding innocence claim was in Herrera, in which the Court said that it couldn’t say freestanding innocence didn’t exist, just that this case wasn’t it. Not the most comforting of opinions (“I’m not not licking toads!”), but it did leave the door open for cases like Mr. Davis’s – and, comparing Davis’s seven recanting eyewitnesses to the facts of Herrera, I’d say he’s got a chance of being the “freestanding innocence” claim, albeit not a very good one.

(On the other hand, comparing the same facts to the case of Kyleen Hargrave-Thomas, they’re probably about equal on the freestanding innocence-o-meter, but Ms. Hargrave-Thomas is still sitting in Scott while Judge Gadola sits on her 60(b) and Governor Granholm sits on her claim that she’s not going to do shit till Judge Gadola rules on the 60(b)…and that case had a genuine 2254(d)(1) claim in addition to freestanding innocence. But no, I’m not bitter.)

The other problem, of course, is that any freestanding innocence claim relies for its very existence on the discovery of new evidence not reasonably discoverable at the time of trial. Which Mr. Davis has. But which immediately slams the door on a 2254(d)(2) claim. 2254(d)(2) deals with an “unreasonable determination of the facts,” which would immediately seem to encompass a freestanding innocence claim, except it’s only the facts “in light of the evidence presented in the State court proceeding.” Meaning that, for the purposes of 2254(d)(2), those seven lying witnesses (assuming they did lie in the State court and are not lying on their recant, which the prosecution will argue, you watch) are still in play. Shoots freestanding innocence right dead, I tells ya.

Often, it’s possible to wedge a freestanding innocence claim through 2254(d)(1) by hooking to an ineffective assistance of counsel claim, by blaming counsel’s inept investigation for not discovering the innocence evidence prior to filing the 2254(d)(1) petition. Tricky, because counsel has to have fucko’ed that one after trial but before now, though it’s doable if you can hook the mistake to your appellate counsel’s performance, to-wit: “My appellate counsel fucked up by not doing enough investigation to find out that seven of these nine eyewitnesses were lying fucking liars.”

The problem, of course, is that “my counsel’s investigation was inadequate” is not an ineffective assistance of counsel claim so long as counsel did any investigation at all; it’s only ineffective assistance if counsel did no investigation whatsoever. Also, counsel is allowed to come to court drunk and to sleep through large portions of your trial. No, really.

(It’s really fun to get habeas petitions that are all “my trial counsel fucked up and my appellate counsel fucked up by not noticing that my trial counsel fucked up. Repeat for seventeen different instances of fuckup. Also, I’m going to argue that my postconviction counsel fucked up by not noticing each of the seventeen different instances of fuckup even though there is no ineffective assistance claim for postconviction counsel because there is no Constitutional right to postconviction counsel. Fuckup fuckup fuckup fuckup fuckup. Also I am, like, the innocentz, yo.” Ninety-nine and 44/100% of those petitions go to the circular file.)

So there you go. We’ve got a claim that cannot be brought under Federal statute and which “doesn’t not exist” under Federal common law, and a bench that is largely untested in the habeas arena except when it comes to “enemy combatants,” an area which said bench cannot seem for the life of it to get in accord with its own precedent. (I miss O’Connor and Rehnquist.) My hopes, they are not high.

The first thing that strikes me on getting a quick background in Mr. Davis’s case is his counsel’s repeated attempts to argue that the Eighth Amendment creates a substantive right not to be executed when you’re innocent.

I understand attempting to ground such a right in the Eighth Amendment, since it certainly doesn’t exist in either of the due process clauses – they only give you the right not to be deprived of life without due process of law, not “without due process of law producing the result that comports with reality.” To my knowledge, no one has ever argued that “due process” means “process producing the correct result,” and one wonders how one would enforce such a process if it were required.

But no court has ever found a substantive right of no-innocent-execution or anything like it, and asking any court to do it with nothing on which to stand is a tall order. Cooking up a new substantive right out of whole cloth – even if it is a substantive right with which the overwhelming majority of Americans would agree – is massive judicial activism. The Warren court would probably have had the guts to do it, but our current bench doesn’t, and neither does the Eleventh Circuit.

Which also gives us today’s “surprise right you don’t have”: you don’t have a constitutional right not to be executed if you are innocent of the crime for which you are being executed. Really. I will now hold while you contact your Senator.

*pause, sip coffee*

The primary problem in the lower courts immediately prior to the filing of the cert petition for an original writ (available here) is that Mr. Davis’s federal habeas claim under 2254 was procedurally defaulted. There are ten billion and twelve ways to commit procedural default, but the upshot of all of them is that you cannot get your petition heard, not because your petition itself is crap but because you did something wrong in submitting it to the court.

To vividly illustrate, the actual murderer himself could show up in court and testify, with photographs, diagrams, and video of the event, that he is actually the murderer and not you, but if you somehow nine months ago forgot to put a staple in the proper corner of a document, you’re going to execution and there’s nothing you can do about it. (And yes, some procedural defaults are nearly that banal.)

I will now hold again while you contact your Senator. The law you are pissed about is the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA, pronounced “ED-puh”).

*pause, sip coffee*

No, really, call your Congresscritter, especially if he happens to be Arlen Specter; Specter specifically submitted and got passed an amendment to AEDPA that was supposed to allow innocence claims to be heard regardless of procedural default. He will be right pissed to hear the courts have eaten his amendment.

One of the things you absolutely must do before filing a habeas petition in federal court (on a State conviction, not a federal one) is “exhaust your claims” in state court; that is, anything you want to argue in federal court must be presented first to every available level of your state courts. If you were convicted in a state with a dual-track postconviction system, you’ll have to present it to all of them twice: once on trial/appeal and once on postconviction. (We have this in Michigan; it’s called a 5600 petition, after the Michigan Court Rule that governs it.)

Once you file a federal habeas petition, AEDPA gives you one year (365 days) to make it through the federal courts. The months or years the feds sit on your petition once you’ve filed it do not count against you. Usually, if a district court finds you haven’t exhausted your state claims, they grant what’s called a “stay and abeyance”: basically, they agree to sit on your petition, thus stopping the one-year clock, for as long as it takes you to run back to state court and clean up there. A stay-and-abeyance isn’t guaranteed, but they’re usually not denied absent extraordinary circumstances, like it’s obvious you fucked up on purpose for some nefarious reason.

According to the cert petition, and I’m too lazy to go pull the state court opinions to verify, the U.S. District Court refused to grant a stay-and-abeyance on Mr. Davis’s first habeas petition, which frankly shocks me, especially on a freestanding innocence claim, which it appears he’d developed by that time (his Constitutional claims were a Giglio prosecutor-induced perjury claim and a Brady prosecutor-withholding-of-exculpatory-evidence claim – not strong stuff).

Oh, but then it goes to appeal, and then it gets fun.

The highly unimaginative Eleventh Circuit, in denying Mr. Davis’s petition for leave to file a second habeas petition (opinion available here) said, among other things, that Mr. Davis should have stated a substantive freestanding innocence claim (in shorthand, a Herrera claim) to supplement his procedural freestanding innocence claim (in shorthand, a Schlup claim).

Schlup is ass-long and complicatz0red, but it’s basically the “escape hatch” of procedural default. That is, if you have been procedurally defaulted, you can still get a court to hear your habeas petition if you can show enough evidence (not previously available at trial or appeal) of your actual innocence that it is “more likely than not that no reasonable juror would have convicted” in light of that new evidence.

The Eleventh Circuit’s “so sorrie, should has argued you some Herrera” stance makes no sense. A Schlup claim does not stand or fall on the content or merits of the habeas petition. Schlup is a gateway claim: all it gets you is the right to have your habeas petition heard, regardless of what’s in it or whether it can hold water for more than five seconds. I’m pretty certain, in fact, that the Eleventh Circuit got this wrong. Unfortunately, it (a) doesn’t create valid grounds for a subsequent petition even if they did, and (b) doesn’t appear to be the basis of their judgment anyway.

If SCOTUS denies this petition, it will not, officially, be on the basis of Section V, which argues for a substantive Eighth Amendment right not to be executed if innocent. It may however be unofficially based on Section V. The Section makes all the right arguments from all the right cases, but the politics of the current Court make it highly foreseeable that this Court will decide not to bother with freestanding innocence at the cost of a man’s life when other courts would not.

After all, the strongest statements from SCOTUS against executing the innocent come from O’Connor, who is gone; Blackmun, who is dead; and Souter, who is leaving at the end of this Term (if granted, Mr. Davis’s claim would not be heard until next Term, unless remanded to the U.S. District Court for an evidentiary hearing.) In their places we have Roberts, who has never once taken the side opposite the State in any context; Alito, who will almost certainly argue this is a problem for the legislature; and [MYSTERY NOMINEE], who would only plug up the Souter hole but not provide extra impetus for finding a substantive right. (Also, if [MYSTERY NOMINEE] is Judge Sotomayor or Judge Wood, I don’t think she’d find a substantive right, either.)

This, in short, is not a Court likely to stand up and say “the time has come to make an affirmative statement about freestanding innocence claims and the right not to be convicted for crimes you didn’t commit and it is this.” Granting this petition would be tantamount to doing that, if not actually doing it. We just don’t have that Court.

I’m not saying that Section V shouldn’t be in there; I think it’s an absolutely proper, necessary, and vital argument and that it’s well-made for what it is. I’m saying that, despite the properness, necessity, and vitality of said argument, SCOTUS’s current personality is not one amenable to granting on those grounds.

…On the other hand, SCOTUS does have the option to grant without deciding by simply saying “yes, fine, District Court, give this poor schlub an evidentiary hearing” and wash its hands of the rest.

The crucial bit of the cert petition is on pages 18-19:

Once a petitioner is found to be innocent under Schlup, relief based on the petitioner’s underlying constitutional claims invariably follows. Indeed, once a court finds that “it is more likely than not that no juror would convict petitioner in light of the new evidence,” it defies all logic and morality that he would be executed nonetheless.

We discussed this very thing in my habeas class because it remains to this day an unresolved paradox of habeas law: a successful Schlup argument results in a federal court ruling that no reasonable juror would convict the petitioner, yet the petitioner (a) is still forced to attempt to establish that (1) there is such a thing as a substantive freestanding innocence claim and (2) his case is it, and (b) still faces the very real possibility that his habeas petition could be denied, which means that even though no reasonable juror could convict him, he remains convicted.

If SCOTUS grants this petition, it will be because of these two sentences. No Court has ever addressed this paradox. SCOTUS may or may not address this paradox in granting the petition; it doesn’t have to, and the temptation not to do so will be great, particularly for this Court regardless who Obama puts on it. (Nobody Obama picks could change the tenor of this Court much, frankly.)

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