Though I follow a number of lawblogs, I missed a rather interesting Supreme Court decision until reading about it on the blog of entrepreneur Mark Cuban. For reasons understandable to those who follow Cuban, he has a Google alert for “prosecutorial misconduct,” which yields more results than one would like.
It led him to Michael Dorf‘s FindLaw essay “Did the Supreme Court Recognize an Innocent Person’s Right Not to Be Executed?”
“What,” you may be asking yourself, “such a right doesn’t exist already?! They find stuff emanating from penumbras and they haven’t found this one yet?!”
Nope:
In 1993, in Herrera v. Collins, the Supreme Court raised, but did not ultimately decide, the question whether it would violate the Constitution to execute an actually innocent person. Acknowledging an “elemental appeal” to the claim that the Constitution forbids executing the innocent, the Court nonetheless left open the question whether, “in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” Even if such a demonstration would indeed render an execution constitutionally forbidden, moreover, the late Chief Justice Rehnquist said for the Court, “the threshold showing for such an assumed right would necessarily be extraordinarily high.” Finding that Herrera’s proffered evidence did not satisfy this standard, the Court denied relief in that case.
But, in a case decided August 17 involving a man on death row for murdering a cop, convicted on evidence that has since been recanted and with substantial new evidence pointing to the state’s star witness as being the actual killer,
Yet despite national and international attention—including pleas by former Georgia Governor and U.S. President Jimmy Carter, former Georgia Republican Congressman and federal prosecutor Bob Barr, and even Pope Benedict—neither the Georgia courts nor the Georgia Pardons and Parole Board has seen fit to stop Davis’s execution.
Last week, the Supreme Court offered Davis a ray of hope. In response to his petition for a writ of habeas corpus, the Justices ordered that a federal district court in Georgia “should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis’s] innocence.”
A key excerpt from the dissent:
This Court has never held that the Constitution forbids the execution of a convicted de-fendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that ques-tion unresolved, while expressing considerable doubt thatany claim based on alleged “actual innocence” is constitutionally cognizable.
Now, as a practical matter, there is no such thing as innocence in the eyes of the law. A person is either found guilty or acquitted. And we obviously don’t want to routinely retry cases on the basis of the convict’s assertions of innocence. After all, if the population at Shawshank is any indication, they’re all innocent. Once convicted, the burden of proof for presenting new evidence of innocence ought reasonably be high.
But, surely, the basic idea of justice precludes the state from knowingly executing someone for a crime they didn’t commit?
