The United States Supreme Court is currently considering whether to hear the case of Troy Davis or to allow his execution to go forward. The Court stayed his execution on September 23, less than two hours before it was to take place. The formal term for agreeing to hear a case is "granting a petition for certiorari." Davis' attorneys submitted such a petition, raising a number of questions on which the Court could grant a hearing. The first question presented to the Court is:
"Does the Eighth Amendment to the U.S. Constitution create a substantive right of the innocent not to be executed so as to invoke the procedural requirements of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution when substantial evidence of innocence is discovered?"
Davis' petition to the Supreme Court is an appeal of the decision by the Georgia Supreme Court denying him an evidentiary hearing to examine evidence of his innocence. Davis claims that the 8th Amendment, which forbids cruel and unusual punishments, bars the execution of defendants with substantial reliable evidence of their innocence obtained since trial. Georgia lower courts refused to grant an evidentiary hearing in the case on the grounds that the new evidence--the recantation of the eyewitness testimony of 7 of 9 non-police witnesses and additional testimony implicating one of the eyewitnesses as the shooter--does not meet Georgia state law standards pertaining to the applicability of recantation testimony. However, the dissenting State Supreme Court judges argued that the “application of the majority’s ‘categorical rule’ against recantation evidence ‘fails to allow an adequate inquiry into the fundamental question, whether or not an innocent person might be convicted or even, as in this case, might be put to death.’”
In Herrera v. Collins (1993), the U.S. Supreme Court assumed that “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” Davis is asking the Court to go beyond this assumption and hold that the constitution bars the execution of a demonstrably innocent defendant. If the Court so holds, it follows that Davis is entitled to an evidentiary hearing to protect that right under the "due process" clause of the 14th Amendment . At such a hearing, the recantation of the eyewitnesses could be closely examined.
Davis' petition raises two other related questions that the Supreme Court could agree to consider:
"Alternatively, the Due Process Clause of the Fourteenth Amendment protects State-created liberty interests when State law mandates a decision favorable to an individual based on a set of substantive predicates. Georgia law creates an Extraordinary Motion for New Trial that mandates a new trial based on newly-discovered evidence if the defendant can show that the new evidence meets six substantive predicates. Does Georgia’s Extraordinary Motion for New Trial create a liberty interest protected by procedural due process?"
Here, Davis' request for a hearing rests on his claim that Georgia's state law surrounding a motion for a new trial creates a federally protected right involving his life and liberty. To ensure that such a constitutional right is respected, a hearing on his new evidence is required.
Finally, Davis asks the Court to consider:
"If either the Eighth Amendment or Georgia law creates a liberty interest protected by the Due Process Clause, does the Supreme Court of Georgia’s failure to grant an evidentiary hearing to review the cumulative substance and credibility of Mr. Davis’ admissible new innocence evidence violate the procedural requirements of the Due Process Clause?"
In other words, is Georgia's denial of a hearing unreasonable, given what is at stake? Once the Court recognizes that Davis is raising a right protected by the Due Process Clause, the question of whether he should receive a hearing is governed by a balancing of the various interests of the defendant and the state. For Davis, without a hearing he could lose his life, even though he may be innocent; for the state, granting a hearing only requires them to delay their carrying out of their sentence.
Davis claims that in making their decision, the lower courts looked at each piece of his new evidence in isolation from all others, rather than conducting a cumulative analysis of all of the evidence, as the U.S. Supreme Court has repeatedly instructed lower courts to do. Davis' attorneys argue that if the evidence is looked at cumulatively, the recantation testimony could have the effect of undermining confidence in the original verdict. Davis' attorneys noted that eyewitness misidentification testimony has been a factor in 77% of all post-conviction DNA exonerations, highlighting the fallible nature of the type of testimony in question here. The prosecution’s case against Troy Davis was comprised almost entirely of eyewitness testimony. Davis' petition states: “Society, thus, has an interest in ensuring that the executed who can produce substantial, admissible new evidence of their innocence are not executed without the opportunity to vindicate themselves through minimal due process required by our Constitution.”