Supreme Court orders new hearing for Georgia death row inmate

By Richard Fausset

Aug. 18, 2009 12 AM PT

ATLANTA — In a surprising move that could indicate a more liberal stance toward death penalty appeals, the Supreme Court on Monday granted a new day in court for a Georgia death row inmate whose two-decade legal saga gained international attention after seven trial witnesses recanted their testimony against him.

The court’s order was the first of its kind in nearly 50 years. The recantations have helped Troy Anthony Davis, 40, earn powerful allies in the court of public opinion, including Pope Benedict XVI and President Carter.

Davis’ attorney considered the petition a long shot, but the Supreme Court instructed a federal district court to hold a hearing to determine whether Davis’ innocence could be established by evidence that wasn’t available in his 1991 state trial.

“The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing,” Justice John Paul Stevens wrote in concurring with the order.

Amnesty International and other groups against the death penalty hailed the action. But Davis’ sister, Martina Correia, said she was “more shocked than elated” by the news.

“Lawyers are kind of like doctors -- they’ve got to give you the gloom and doom first,” said Correia in a phone interview.

“But if I’d felt that way, I couldn’t have kept fighting for this for so long,” she added.

Also expressing shock was Anneliese MacPhail, the 75-year-old mother of the man Davis was convicted of murdering. Her son, Mark Allen MacPhail, a police officer, was off-duty when he was shot to death in 1989 while coming to the aid of a homeless man who was being beaten in a Savannah, Ga., parking lot.

“It’s kind of discouraging and aggravating,” she said. “I’d like to have some peace now. I’m mentally worn out by these cases.”

Legal experts were taken aback by the rare move, which came during the court’s typically sleepy summer recess. A number of experts said it could indicate that the federal justice system may be loosening its conservative position toward death penalty appeals.

Federal court rulings in recent years had been making it harder for inmates to win writs of habeas corpus, or pleas for their release. Congress also raised the bar in 1996 with the Anti-terrorism and Effective Death Penalty Act, passed in the wake of the Oklahoma City bombing.

But the increasing prevalence of DNA evidence is changing some minds.

“I think we’re in a new day, and there’s obviously a split,” said Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit in Washington that has been critical of the application of the death penalty.

Davis’ last-ditch appeal to the high court rested on a claim of “actual innocence” -- that is, an appeal based on evidence that purportedly shows he did not commit the crime, as opposed to an argument based on an unconstitutional flaw in his prosecution.

The Supreme Court has never determined whether an execution can be barred because an inmate proved actual innocence.

But on Monday, a majority of the justices appeared to indicate that innocence may be sufficient to earn an inmate a new hearing, said Laurie Levenson, a professor at Loyola Law School in Los Angeles.

“This is a ray of hope for those inmates who might feel like their petitions are procedurally blocked,” Levenson said. “If they can show they are actually innocent, they may have a chance.”

Levenson and a number of other law professors assumed that a majority of justices had voted in favor of the order, though the court itself was not totally clear about the tally. Stevens was joined by Justices Ruth Bader Ginsburg and Stephen G. Breyer in concurring.

Justices Antonin Scalia and Clarence Thomas dissented. Scalia, the author of the dissent, called Davis’ case a “sure loser,” saying that the essence of his appeal has been considered and rejected by a number of bodies.

Scalia also argued that the 1996 anti-terrorism law barred the district court from granting Davis relief.

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