The Supreme Court, over two Justices' dissents, on Monday ordered a federal judge in Georgia to consider and rule on the claim of innocence in the murder case against Troy Anthony Davis (In re Davis, 08-1443) The Court told the District Court to "receive testimony and make findings of fact as to whether evidence that could have been obtained at the time of trial clearly establishes [Davis'] innocence."
Justices Antonin Scalia and Clarence Thomas dissented, and some of their arguments were answered in a separate opinion by Justice John Paul Stevens, joined by Justices Stephen G. Breyer and Ruth Bader Ginsburg. The new member of the Court, Justice Sonia Sotomayor, took no part in the Court's action.
The action was highly unusual, because Davis had filed what is called an original writ of habeas corpus — that is, a plea for his release, filed directly in the Supreme Court rather than in lower courts. Justice Scalia noted in his dissent that the Court had not taken a similar step "in nearly 50 years."
The action also was unusual because the Court normally does not take actions of this significance during its summer recess.
The Court did not disclose how each of the Justices had voted, other than the dissents of Justices Scalia and Thomas. Presumably, however, an order of this kind would have required the approval of at least five votes. Justices Breyer, Ginsburg and Stevens presumably voted for the order; it is unclear how Chief Justice John G. Roberts, Jr., or Justices Anthony M. Kennedy and Samuel A. Alito, Jr., voted, if they did.
Davis was convicted in 1991 of murdering an off-duty police officer, Mark Allen MacPhail. Since his trial, Davis has claimed, seven of the state of Georgia 's key witneeses have recanted the testimony they gave at the trial. Several other individuals have implicated another man — the prosecution' s key witness against Davis — as the shooter.
