Watch CBSN Live

The Long Road To The Davis Case

Attorney Andrew Cohen analyzes legal issues for CBS News and
The decades-long, law-and-order-fueled trend toward restricting appellate avenues in criminal cases may be reaching its gruesome but inevitable conclusion in the case of Troy Davis, a death row inmate who apparently will be executed soon despite a series of post-trial revelations about his lack of culpability that ought to shock the conscience of even the most ardent supports of capital punishment.

Davis, who is black, was charged, tried and convicted in Georgia for murdering a white police officer. He was sentenced to death in 1991. There was no physical evidence linking him to the crime. There was no DNA. There was no murder weapon found on him. Since his trial, seven of the nine main prosecution eyewitnesses against him have recanted their trial testimony. Some of these witnesses claim police coercion or harsh interrogation tactics caused them to be untruthful at trial.

Moreover, a handful of witnesses have stepped forward to claim that another man has confessed to the crime. This "other man," according to the Atlanta Journal-Constitution, is one of the two remaining trial witnesses who, not surprisingly, still claims that Davis shot the officer. The final eyewitness (of the nine we are concerned with) initially told the police that he could not identify Davis at the crime scene before later changing his tune at trial and incriminating Davis. Even during this new age of DNA there has been no great movement to resolve these legal and factual conflicts.

Short of seeing a videotape of that other fellow's confession, it's hard to imagine a scenario that more clearly calls out for a full and independent evidentiary hearing, or even a new trial, to assess the validity of the changed narrative about Davis' role in the crime. And, indeed, in an earlier time in our history it is quite likely that the federal courts would have ensured such a review. No more. The highly-politicized, step-by-step closing of the courthouse doors to appeals like this-the intentional restriction of meaningful appeals rights-may send an innocent man to his death.

When Davis' appeal on these issues made it to the Georgia Supreme Court the judges there denied him any relief and declared in a 4-3 vote that there must be "no doubt of any kind" but that the trial testimony was of the "purest fabrication" in order to warrant interceding on Davis' behalf. Got that? It takes only the absence of "reasonable doubt" to convict someone of murder but in Georgia to properly investigate a condemned man's strong claim of innocence judges have to have "no doubt" at the outset of the inquiry that the inquiry will prove his innocence. How, one dissenting Georgia justice asked, can anyone ever meet such a standard?

It's a game that Davis can't win; and that's precisely how leaders of the anti-appeal movement have wanted it. As the criminal justice system has become more conservative, the courts and the Congress have relentlessly created (or recognized) barriers to meaningful appellate review. The stated reason, of course, has always been to diminish frivolous appeals by prison inmates who have nothing better to do with their time than test the judicial system. But today the barriers are so high that they are keeping beyond the reach of substantive review the sorts of vital questions raised by Davis and his attorneys.

Having lost in Georgia, and at the lower federal court level, the defense then asked the United States Supreme Court to declare that the State violates the Eighth Amendment's prohibition against cruel and unusual punishment when it executes an innocent man (or doesn't even hold a full hearing on his strong claims of innocence). At a minimum, the defense believed, the Justices would look closely at the stringent, new "pure fabrication" rule the Georgia High Court came up with in the Davis appeal.

But it isn't going to happen. The same Supreme Court in Washington, which delayed Davis' execution last month, announced on Tuesday that it would not, after all, take the case on its merits. This virtually guarantees that Davis will be executed despite the grave doubts about his guilt. There will be no evaluation of the Eighth Amendment in these circumstances; no considered review of the new Georgia rule; no ardent discussion between Justices Scalia and Stevens about when, if ever, a defendant like Davis can ever get that meaningful new look from the courts.

Why the Justices turned away from a case they had sniffed at last month may forever remain a mystery. But what is perfectly clear is that Georgia has now created a virtually unassailable bar to criminal defendants whose shaky convictions are later subverted through the discovery of new evidence or the dissolution of the accuracy, reliability and credibility of important trial evidence. After decades of success, subtle and otherwise, the anti-appeal movement has just now reached its crescendo or, depending upon your point of view, its nadir.