A Criminal Enterprise

The Next Round for Troy Davis

Posted in Uncategorized by Bidish J. Sarma on August 20, 2009

At long last, a court has provided Troy Davis with some relief on his claim of actual innocence.  On August 17, the United States Supreme Court ordered a federal judge in the Southern District of Georgia to “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence.”  The Court’s order and a concurring statement written by Justice Stevens and joined by Justices Ginsburg and Breyer are located here on the SCOTUSblog website.  Justice Scalia, joined by Justice Thomas, dissented from the order.  His dissenting opinion is also on the SCOTUSblog website, here.

The Supreme Court took action on Davis’s original petition for habeas corpus.  This extraordinarily rare exercise of jurisdiction raises many interesting questions.  Professor Berman has asked several of these questions on his Sentencing Law and Policy blog, including: “will SCOTUS immediately review the ‘findings of fact’ it has ordered or will the Eleventh Circuit take the first ‘appeal’ in this ‘original’ habeas matter?”  Professor Berman’s post can be read in full here.  Kent Scheidegger also raised a number of other interesting questions here on the Crime & Consequences blog.

The Court’s order came on a hail-mary pass from Davis’s lawyers.  It seemed as he had exhausted almost all of this options.  As David Von Drehle’s Time article explains, “Numerous times since the 1996 [Antiterrorism and Effective Death Penalty Act] law was passed, the high court has ruled that the limits imposed by the [Act] are valid — when they restrict the lower courts.  But the Justices held open their own prerogative to issue a writ of habeas corpus if so moved. In other words, the lower federal courts had no power to hear another word from Davis. But he could make his pitch directly to the Supreme Court.”  Even with the doors to the highest court technically open, the odds certainly still looked long.  Adam Liptak of the New York Times pointed out “The court has granted such petitions just a handful of times in the last century, and Justice Scalia said the court had not taken the ‘extraordinary step’ of ordering a federal trial court to adjudicate such a petition from a state prisoner in nearly 50 years.”

As federal jurisdiction experts discuss and debate the Davis order’s implications, Davis’s lawyers must prepare to present the facts to the district court.  It is well-known that seven of the nine eyewitnesses who testified against Davis have recanted their testimony.  However, another interesting aspect of the evidentiary hearing may concern the testimony of a key witness who has not recanted: Stephen Sanders.

(The other non-recanting eyewitness is Red Coles – the other main suspect in the case – who pointed the finger at Davis.  As this post on the new Snitching blog explains, another “important aspect of the Davis case that commonly occurs in informant cases is the ‘first-in-the-door’ phenomenon, in which the first suspect to cooperate with police not only gets to direct attention away from himself but can fundamentally shape the official investigation.”)

During the investigation immediately after the shooting, Sanders – the front-seat passenger in a van at the drive-thru window – told the police unequivocally that he “wouldn’t recognize [the shooter] again except for his clothes.”  A month later, long after the police arrested Davis, the police asked Sanders if he had any newfound confidence in his ability to identify the shooter.  He did not.

Two years later, Sanders testified against Davis . . . and, astoundingly, expressed no doubt.

Although individuals reviewing the new evidence may doubt the veracity of witness’s recantations, they should not hang their hats on the non-recanted testimony provided by Sanders.  Several factors – above and beyond his own damning initial admission that he could not identify the shooter – indicate that Sanders’s testimony is unreliable.  First, the conditions were far from optimal for a trustworthy identification: Sanders had an obstructed view across the driver’s side passenger; the lighting was poor; and he only had a brief opportunity to see the shooter.  Second, now-familiar concerns with cross-racial identification further weaken confidence in Sanders’s ability to make an accurate identification two years after the crime. Third, memory does not improve over time.   In fact, the scientific literature indicates that memory fades sharply very soon after an event occurs and then levels off (in a phenomenon sometimes called “the forgetting curve”).  Finally, in-court identifications – like the one Sanders made at Davis’s trial – are the most suggestive.

Will Davis be able to undermine the credibility of evidence presented at his original trial?  Will the defense lawyers be able to successfully frame credibility concerns as “evidence that could not have been obtained at the time of trial?”  Will that depend on whether they can convince the judge that advancements in the study of memory or newfound wisdom about witness identification have changed expert opinions of the quality of Sanders’s identification?  The answers to these questions could prove critical to the outcome of Troy Davis’s next evidentiary hearing.

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  1. […] 2009 The Troy Davis case has received international attention.  We previously discussed the case here.  At the bottom of the legal debate is the question of whether Congress intended the […]

  2. […] Posted in Uncategorized by Robert Smith on October 18, 2009 See Previous Post: The Next Round for Troy Davis (discussing background of SCOTUS action on Troy Davis’ Original Writ […]


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