Scalia: Innocence doesn't matter

In an unusual ruling, the Supreme Court orders a Georgia court to review the case of a death row inmate


Vincent Rossmeier
August 18, 2009 9:01PM (UTC)

Summer is a slow time in Washington. Congress is in recess, President Obama is on vacation and everyone still left in the city is realizing all over again that the place was built on a swamp. The Supreme Court is in recess, too, and in the past that's usually meant that news from the court is virtually non-existent.

On Monday, however, the Supreme Court took the atypical step of issuing a major ruling during its summer break, ordering a federal trial court in Georgia to review the case of death row inmate Troy Davis to decide whether new evidence, not available at trial, establishes Davis' innocence.

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What makes the case all the more unique is that to receive the ruling, Davis' attorney filed an original writ of habeas corpus, which skips the lower courts and goes directly to the Supreme Court. As Justice Antonin Scalia pointed out in a dissent he wrote against Monday's decision, the Court has not made such a ruling "in nearly 50 years."

However, the three Justices who openly favored the decision seemed to think there was enough question about Davis' guilt to review the case. Davis was convicted 18 years ago for the 1989 murder of a Savannah, Ga. police officer. Attorneys for Davis argued in their appeal that since that time, seven of the witnesses who helped to condemn Davis have recanted on their testimony. The case has drawn international attention, with former President Carter, Pope Benedict and Nobel Peace Prize winner Desmond Tutu questioning the merits of Davis' conviction.

Justice John Paul Stevens was joined by Justices Ruth Bader Ginsberg and Stephen G. Breyer in supporting the order to review the case. “The substantial risk of putting an innocent man to death,” Justice Stevens wrote in his opinion, “clearly provides an adequate justification for holding an evidentiary hearing.”

Scalia vehemently disagreed with Stevens. His opinion suggested a certain callousness on the question of whether the courts should care if the state puts an innocent man to death, but he was right when he said the Supreme Court has never ruled whether an individual's "actual innocence" necessitates the involvement of a federal court in a state conviction. Scalia wrote in dissent, "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” He also said that Davis' appeal would be a “a sure loser” once it was examined again.

The court did not disclose how each Justice voted on the issue. Its newest member, Justice Sonia Sotomayor, did not take part in the ruling. But she did cast her first vote on the Supreme Court in a different death penalty case, joining three of the court's other liberals in dissenting against the majority's decision not to grant a stay to stop an execution in Ohio.

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Vincent Rossmeier

Vincent Rossmeier is an editorial assistant at Salon.

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