For those of you who can't get enough of the Troy Davis case (I guess, like me), I have decided to cull together a whole bunch of stuff around the internet about the case. For my previous posts on the case, see here and here.
First, I really enjoyed two posts over at The Criminal Lawyer discussing the case. I am having a hard time getting the link to the specific posts working. Not sure why. In any event, you should probably just visit the site anyways. It's really good stuff. With respect to the Troy Davis stuff, you can find them in the "habeas" category on the right. The two posts are entitled, "Dersh Being Disingenuous" and "Wow! Supreme Court Puts Actual Innocence In Play." Sorry that I couldn't give direct links to those posts, but they are really worth checking out.
Next, here is a recent post by former congressman Bob Barr, who I have read is a Troy Davis supporter. After leaving Congress in 2003, Barr carved himself out a niche as a strict conservative libertarian -- a little different from his heady days as an ultra-right impeachment manager. But as a libertarian, it would make sense that he would support someone like Davis, who is fighting the power of the Government to execute an allegedly innocent man.
But his column is disingenuous to the extreme. One would think that a true libertarian would express some remorse over being a part of the Congress that passed the AEDPA. A true libertarian would support a robust right to challenge a Government's power to detain somebody. And the AEDPA obviously restricts that beyond reason.
But that's not really the disingenuous part. What's disingenuous is where he says:
I can state unequivocally that this legislation was not intended to preclude a claim of actual innocence based on post-sentence evidence from being considered in a habeas petition.
That's just ridiculous. If that is what everybody's understanding was of the statute, THEN THEY SHOULD HAVE PUT IT IN THE DAMN STATUTE. Thanks Bob Barr for all your great work.
And as an aside, this argument is made in rebuttal to Scalia's view that the AEDPA restricts Davis's right to raise an actual innocence claim. While Barr's assurances about the meaning of the statute may make him feel good, they will have absolutely no effect on Scalia, who refuses to even look at recorded legislative history when analyzing a statute. I doubt other judges will be persuaded, either.
Here is a view of the Davis case from the left. Ann Scheider expresses concern that an actual innocence claim really has no shot before the Supreme Court. After looking at the "death-qualified juror" cases in which the Supreme Court has upheld a prosecutor's right to strike jurors who are against the death penalty, she argues that, "If a majority of the highest court of the land views obtaining and imposing a death sentence as a 'legitimate interest of the state,' then actual innocence, along with Troy Davis, seems doomed."
Reading even more tea leaves as to Roberts and Alito, she says, "As original constructionists, they frown upon giving Supreme Court opinions on issues that are not fully ripe for decision. So they had nothing to lose by joining the Davis majority: it doesn't commit them to a position on the ultimate issue. What it does, though, is create a possible opportunity for them to expand the "legitimate interests of the state" in having final convictions."
It's an interesting analysis. I have slightly higher hopes for Roberts and Alito. That may be totally unjustified, but they did decide to do what's right in Davis. So maybe if Davis can show that he is actually innocent, then maybe they will take the right path here.
Finally, here is a really interesting post from Professor Michael Dorf at FindLaw in which he dissects Justice Stevens' concurrence in a far more constructive way than Justice Scalia did in his dissent.
One thing about the analysis though is that it puts forth the conventional wisdom that the AEDPA's "clearly established law" language codified the Teague "new rule" retroactivity concept. It didn't really. Just like Barr's assertion above, if Congress wanted to have done that it would have. Instead, the "clearly established law" part is far more repressive and broad than Teague ever was.
The "clearly established" language is simply not equivalent to the "new rule" retroactivity rules.
Prior to the AEDPA, the Teague "new rule" concept only applied to petitioner's who sought to rely on cases decided after their conviction became final. However, they were allowed to rely on all prior federal cases (and not just Supreme Court cases) to argue that there was a constitutional violation. They could rely on broad concepts to argue that they should apply in the particular situation, even if it never had been applied in that situation before. This is also true regardless of whether the Supreme Court subsequently issued a decision after the judgment became final that supported the argument.
But, as now interpreted by the Supreme Court in Musladin, "clearly established law" completely rules out that type of analysis. The law now must be clearly established by the Supreme Court for that particular context in order to obtain habeas relief. In other words, it has nothing to do with retroactivity. It's an historical analysis.
Musladin is a good example of this. Prior to the AEDPA, the Ninth Circuit's decision finding a constitutional violation would have been non-controversial. They took a broad concept and argued that it should apply to the particular context, even though the Supreme Court had never spoken on the issue. Teague would have been irrelevant. It was just a standard application of federal constitutional principles.
But the new standard of review now forecloses the claim, not because there was a subsequent decision that shouldn't apply, but because there was no prior decision to apply.
So to the extent that the AEDPA codified Teague, it did so by taking the "new rule" concept and blowing it up into something much broader and restrictive than Teague ever envisioned. Once again, thanks so-called libertarian Bob Barr! You really created a monster in the AEDPA.
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