Stevens leaving legacy of judicial care: "Innocence Matters"

As Supreme Court Justice John Paul Stevens approaches retirement, observers are beginning to assess the legacy of his almost 35 years on the bench.

One issue with which Justice Stevens may be closely associated is the death penalty. In 1976, he voted with the majority to reinstate the death penalty, ending a four-year period during which capital punishment resided in constitutional limbo.

Justice Stevens’ views of the death penalty and public opinion about it have evolved since 1976. In a 2007 case upholding the constitutionality of lethal injection procedures, Justice Stevens, while feeling compelled as a matter of precedent to vote with the majority, nonetheless expressed grave doubts about the death penalty, calling it “anachronistic.”

But one of Justice Stevens’ last acts involving the death penalty could be the most meaningful.

Last August, the Supreme Court considered the case of Troy Davis (pictured). Davis, who is on death row in Georgia for the 1989 murder of Savannah police Officer Mark MacPhail, was convicted solely on the basis of eyewitness testimony. Most of those witnesses have now recanted their trial testimony, some alleging that police coerced their original statements, and several new witnesses have come forward to implicate another suspect.

In ordering a federal court to hold a hearing on this new evidence, Justice Stevens stated: “The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.”

He explained that Davis’ innocence claim constituted “exceptional circumstances” requiring the court use its rarely-invoked original habeas corpus jurisdiction.

Justice Stevens’ leadership in this case was a triumph of the common-sense notion that innocence matters; it matters more than procedural technicalities. No matter whether one opposes or supports the death penalty, I would hope we can at least agree that the innocent should not be executed.

The hearing the Supreme Court ordered will take place Wednesday in Savannah. Finally, a court will consider the weight of the new evidence. Prior to the Supreme Court decision, state and federal appeals courts relied on procedural grounds for refusing to hold evidentiary hearings.

I served on the Georgia Supreme Court when the Davis case came up on direct appeal in 1993. We upheld the conviction.

But that was before most of the witnesses had recanted their trial testimony. I was no longer a member of the court when it rejected, by a 4-3 vote, Davis’ extraordinary motion for a new trial in March 2008.

The court did not order an evidentiary hearing. If I had been on that court, the vote might have been 4-3 the other way.

It is by such razor-thin margins that we determine who lives and who dies.

Thanks to Justice Stevens, the hearing other courts failed to hold will finally take place.

Yet the granting of an evidentiary hearing to examine innocence claims is no guarantee those claims will be accepted.

This is not a new trial, where the defendant is presumed innocent. This is only a hearing, where Davis will be required to “clearly establish” his innocence — a very difficult standard to meet.

No matter the outcome of this case, Davis stands for the principle that the factual innocence or guilt of people sentenced to death matters. For those facing the irreversible punishment of death, we should always do our best to get to the truth.

Never should procedural rules trump the consideration of newly discovered exculpatory evidence.

Justice Stevens has clearly endorsed this principle, reminding us that compelling innocence claims should be treated with exceptional care, especially in death penalty cases. And that is an admirable legacy for any judge.

Norman S. Fletcher was a justice on the Georgia Supreme Court from 1989 through 2005, serving as chief justice from 2001 to 2005. He currently serves as a member of the Constitution Project’s Right to Counsel Committee.

Source: Opinion by Norman S. Fletcher, Atlanta Journal-Constitution, June 21, 2010. Judge Fletcher was a justice on the Georgia Supreme Court from 1989 through 2005, serving as chief justice from 2001 to 2005. He now serves on the Constitution Project's Right to Counsel Committee.