Innocent and in jail

Whatever their views about capital punishment, most Americans probably assume that a convicted defendant will be released from prison if he can prove that he didn’t commit the crime. In fact, the Supreme Court has stopped short of endorsing what lawyers call the “actual innocence” doctrine. But an unexpected order in a Georgia death penalty case may indicate that the justices are coming around to a common-sense view about the due process of law.

Last week, they ordered a federal court in Georgia to reconsider the case of death row inmate Troy Anthony Davis, convicted of murdering an off-duty police officer 18 years ago. Since then, seven prosecution witnesses have recanted their testimony, and dignitaries including former President Carter, Archbishop Desmond Tutu and Pope Benedict XVI have pleaded for clemency, with the pope’s representative providing Georgia officials with a detailed critique of the evidence used to convict Davis.

A new hearing for Davis is welcome as a matter of individual justice, though it raises the question of whether similarly wronged prisoners will be denied relief because they don’t have the support of prelates, politicians and movie stars. But the broader significance is that the court said a lower court 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 petitioner’s innocence.”

In dissenting from the order, Justice Antonin Scalia (joined by Justice Clarence Thomas) complained that the court “has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” The dissenters are right about the history of the actual innocence doctrine, which is one reason the ruling in favor of Davis is so surprising.


The order confounded expectations in two other ways. As recently as October 2008, the justices declined, with no explanation, to hear an appeal by Davis. In June, the court refused to hold that a convicted defendant in an Alaska case had a right to a DNA test that might clear him. Chief Justice John G. Roberts Jr. noted that 46 states already provide such access, but he also cavalierly contended that a state’s refusal to afford a prisoner DNA testing didn’t offend “some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

It’s hard to imagine a legal right more fundamental than the opportunity to prove one’s innocence, especially when the alternative is execution. If the reprieve for Davis indicates the court’s acceptance of that principle, he is not the only winner in this case.