The Supreme Court made waves yesterday with its nearly unprecedented decision to order a federal district court to conduct an evidentiary hearing into the case of Troy Davis, the Georgia man sentenced to death based largely on the testimony of eyewitnesses who have since recanted. But it's Justice Scalia's dissent, joined by Justice Thomas, that's attracting the most attention, largely thanks to his technically correct but fairly cold-hearted remark that the Supreme 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." See Kent Scheidegger for legal analysis. While the novel question of law here is a relatively mundane procedural one, the case provides a good illustration of a larger unresolved tension in death penalty appeals.

All told, I don't find Justice Scalia's reasoning especially persuasive. But he does make one noteworthy point: if the evidence of Davis's innocence is so strong that it merits this unheard-of step, how is it that the Georgia Board of Pardons and Paroles, the Georgia Supreme Court, and the U.S. Court of Appeals for the Eleventh Circuit all ruled against Davis?

There are two possible answers that spring immediately to mind. One is that the Georgia judicial system and the Eleventh Circuit are some combination of nefarious, incompetent, and lazy. That's possible, but it isn't very likely, especially in a case that's gotten as much attention as Davis's has. A second answer, which seems much more realistic, focuses on the standard of review those bodies were using--that is, how much deference they granted to the jury's determination of factual guilt. And under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the answer is that federal courts, at least, must grant substantial deference to the jury's findings.  

Here's what the Eleventh Circuit said: "When we view all of this evidence as a whole, we cannot honestly say that Davis can establish by clear and convincing evidence that a jury would not have found him guilty of Officer MacPhail’s murder." Now, that may well be true--not all of the prosecution witnesses have recanted, after all. "Clear and convincing evidence" is a fairly high bar to meet. Davis must prove not merely that the new evidence, on balance, seems to raise reasonable doubts about his guilt that weren't present the first time around. He must show, rather, that it is substantially more likely than not that the jury would have reached a different conclusion had it been presented with the new evidence.  It's entirely possible that Davis can't quite meet that standard. As Davis's sister told the Atlanta Journal Constitution, "I know that a lot of people still think Troy is guilty."  If that's correct, then the Eleventh Circuit was probably right to deny Davis's petition even if he cleared the procedural hurdle that's at issue here.

But the problem is that, like Davis's sister, we generally don't think that level of certainty should be sufficient to put people to death. And this is a conflict between the way we think about the death penalty and the way the federal court system works in death penalty cases under AEDPA. Out of necessity, appellate courts grant immense deference to the factual findings of a trial court.  You can't constantly be relitigating complex factual matters on appeal; the system would grind to a halt. Ordinarily, we're willing to tolerate the possibility that the trier of fact might have made a mistake, in order to provide some finality and preserve scarce judicial resources. In death penalty cases, for obvious reasons, people are inclined to throw such prudent procedural niceties out the window and say that the question of factual guilt or innocence should always be on the table in an equitable fashion, whether in state court or on habeas review in federal court, without stacking the deck in favor of the jury's verdict. But the system isn't set up that way.

And that's probably what was driving the Court in this instance. In particular, there's been quite a bit of speculation about why Chief Justice Roberts, in particular, voted in Davis's favor, without signing onto Justice Stevens's concurring opinion. As Doug Berman puts it, "I suspect that the Chief Justice's vote may have been influenced mostly by how the Davis case would reflect on the Court as an institituion."  That is, in the public's mind, the evidence of Davis's guilt is now weak enough that, were the factual case to be tried anew, there's at least a good chance that he would not be convicted--and so we're uncomfortable with the Supreme Court giving his execution the green light. The problem is that federal law requires more than that in order to halt a state execution, so the Court decided to remand it back to Georgia in the hope that it'll go away without the justices having to try to grapple with this tension under such a difficult set of factual circumstances.

--Josh Patashnik