Before new evidence of his innocence was discovered, Davis brought an unsuccessful direct appeal in Georgia's state courts and an unsuccessful habeas petition in federal court. Later, on the strength of the new evidence (including recantations by several trial witnesses and new testimony from three witnesses who heard another man confess to the crime), Davis tried to obtain a new trial from Georgia's state courts. The Georgia Supreme Court decided that Davis was not entitled to an evidentiary hearing to prove his actual innocence. Last year, the U.S. Supreme Court denied Davis' petition to review that decision.
As required by the noxious AEDPA, Davis asked the Court of Appeals for the Eleventh Circuit for permission to file a second habeas petition alleging that the new evidence, unavailable at the time his first habeas petition was filed, established his actual innocence. The Eleventh Circuit stayed Davis' execution while it considered that request, but lifted the stay after deciding (pdf) by a 2-1 vote that Davis did not meet the AEDPA's strict requirements for commencing a second habeas proceeding -- requirements that, as a practical matter, are nearly impossible to satisfy. The dissenting judge objected that the "AEDPA cannot possibly be applied when to do so would offend the Constitution and the fundamental concept of justice that an innocent man should
not be executed."
Davis asked the Supreme Court to review the Eleventh Circuit's decision. In a surprising but welcome turn of events, the Court recessed for the summer without acting on that request. The result: there is still hope, however slim, that a man who is widely believed to be innocent will escape the death penalty.
At some point after the Court resumes its work on the first Monday in October, it will decide whether to hear Davis' petition. While it should be self-evident that the right to due process -- the right to fundamental fairness -- protects an innocent inmate from execution, the Supreme Court has never decided whether there is a "constitutional right to be released upon proof of 'actual innocence'." Just a month ago, Chief Justice Roberts sidestepped that "open question" in a majority opinion holding that due process does not guarantee an inmate's access to DNA evidence in the state's custody for the purpose of establishing his actual innocence.
Roberts observed that the abstract right to be released upon proof of innocence raises difficult questions. Inmates would presumably be held to a "high standard" of proof, but if the bar is set so high that it can never be met, the right would be meaningless. Those questions need not be addressed in Davis' case, which (as the dissenting judge in the Eleventh Circuit recognized) poses simpler questions: whether executing Davis "in the face of a significant amount of proffered evidence that may establish his actual innocence, is unconscionable and unconstitutional," and whether Davis "may be lawfully executed when no court has ever conducted a hearing to assess the reliability of
the score of affidavits that, if reliable, would satisfy the threshold showing for a truly persuasive demonstration of actual innocence, thus entitling Davis to habeas relief."
If the Supreme Court is unwilling to confront those questions, Davis will be put to death unless Chatham County's newly elected District Attorney, Larry Chisolm, can be persuaded to reopen the case. While that isn't something a prosecutor would ordinarily do, most prosecutors don't receive pleas for justice from Desmond Tutu and the Pope. Davis' hopes for a reprieve from death are dwindling, but they aren't lost.
