What if the Evidence of Actual Innocence isn’t New?

In my latest FindLaw column (here), I ask whether the Supreme Court’s order in the Troy Davis case recognizes a constitutional right of an innocent person---whose trial was not infected by a constitutional error---not to be executed. My conclusion: Maybe, depending on what the Court does if and when the case comes back. Here I’ll address an issue I don’t cover in the column: Why, exactly, does the Supreme Court’s order of an evidentiary hearing focus on “whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence?”

First, we need to understand what even counts as new evidence. In Davis, the core argument is that the government’s case relied on witnesses who, under pressure from the police and prosecutors, said that they saw Davis commit the murder but in fact did not. Now, in some sense that evidence could have been obtained at the time of Davis’s trial: The witnesses could have said at that time that they were lying. But presumably the fact that the witnesses were lying about what they saw (or didn’t see) was not the sort of fact that Davis or his lawyers could have reasonably uncovered at the time of trial. Justice Scalia says in dissent that the evidence Davis is proffering is not in fact new, but even he doesn’t appear to think that it was available at TRIAL. He means it’s not new in the sense that it was previously offered as a ground for post-conviction relief. (It was not, however, evaluated by a judge hearing live testimony.) And Justice Stevens, and presumably the Court as a whole, reject even the narrower characterization of the evidence as nothing new.

Second, there is a peculiarity in the wording of the Supreme Court’s order. It says that the district judge should conduct a hearing to determine whether the new evidence itself establishes Davis’s innocence. The most straightforward reading of that language would suggest that the new evidence, STANDING ALONE, must establish innocence. That can’t be what the Court means, or at least I HOPE that’s not what the Court means. After all, in a typical case, the new evidence will need to be weighed along with the evidence that was produced at trial.

Here's a somewhat silly example: Suppose that at trial, defendant says he couldn't have committed the murder because he has an alibi placing him thousands of miles away. However, eyewitnesses and DNA evidence place the defendant at the crime scene, and the alibi is the defendant's girlfriend, who could be disbelieved as biased. Years later, it is discovered that the defendant has an identical twin (from whom he was separated at birth and whose existence was unknown to him). The twin, it turns out, has a long rap sheet. Does the new evidence--of the twin's existence--by itself establish the defendant's innocence? No, but in combination with the defendant's alibi evidence, it should. Accordingly, I think the order in Davis is best read to permit this sort of combination of the new evidence with the trial evidence.

Third, and finally, suppose that the evidence of innocence COULD have been obtained at the time of the trial, but simply WASN'T obtained then. Can the state execute an innocent person then? Once again, I sure hope not, but I think it will depend on whether the failure to obtain the evidence of innocence for trial was due to ineffective assistance of counsel. If such neglect was ineffective assistance, then the prisoner has a valid constitutional claim. Prima facie, he may be barred by AEDPA from presenting that evidence because his petition is successive or the claim has been procedurally defaulted, but a showing of "actual innocence" lifts those bars. So, if the evidence COULD have been obtained at trial but wasn't, the prisoner can use his innocence evidence to get his ineffectiveness claim heard; while if the evidence COULD NOT have been obtained at trial, then the innocence evidence can be presented as a freestanding innocence claim under Herrera and now Davis.

At least that's how it ought to work. There remains the macabre possibility that evidence COULD have been obtained at trial, and so there is no Davis/Herrera claim, but that the failure to obtain the evidence at trial was not so egregious as to rise to the level of ineffective assistance of counsel. If there is any room between the two standards, then the law would allow the execution of a certainly innocent person. I very much doubt that there are 5 votes for THAT proposition, at least once Justice Sotomayor starts participating. Stay tuned!

Posted by Mike Dorf