The 11th Circuit Court of Appeals in Atlanta, GA has issued a stay of Troy Davis' execution, which had been scheduled for Monday, October 27, 2008. This is the latest twist in a roller-coaster ride of stays and denials in his case. The stay allows Troy to pursue a federal habeas corpus action based on his actual innocence. The Antiterrorism and Effective Death Penalty Act of 1996 requires a federal appeals court to approve such a request before a new lawsuit can be filed.
Troy's legal claims rest on the recantations of seven of the prosecutions nine trial witnesses. In 1989, they said Troy killed an off-duty Savannah police officer. In 2008, they say police coerced their identification of Troy, and that one of the two non-recanting witnesses is the actual killer. Courts are understandably reluctant to believe recantations. If the witness lied under oath before, how can he or she be believed now? Nonetheless, many wrongful convictions have been overturned precisely because judges listened to recanting witnesses, found them credible and found their reasons for lying in the first place (often police coercion) persuasive.
But Georgia state law has a "catch-22" that raises the bar even higher and prevents most recantations from ever being heard by a judge. It's called the "purest fabrication" doctrine and it denies hearings even when extremely persuasive recantation affidavits have been submitted. The "purest fabrication" doctrine means that post-conviction hearings don't have to be held to evaluate the credibility of recanting witnesses unless the defendant can show, by other, independent proof before the hearing is held, that the original testimony was absolutely false.
The stay granted to Troy by the 11th Circuit is conditional, and there is no guarantee he will be allowed to move forward with a habeas petition. Before his lawyers can file a habeas petition, they must clear two difficult legal hurdles in briefs they are to file with the 11th Circuit.
First, they must show that his lawyers could not have previously found the new evidence supporting his innocence no matter how diligently they looked for it. And they must show that the new testimony, viewed in light of all the evidence, is enough to prove “by clear and convincing evidence that…no reasonable fact finder would have found [him] guilty.”
The 11th Circuit added a twist. It asked the parties to address whether Davis can still be executed if he can establish innocence under the second standard but cannot satisfy his burden under the first, due-diligence question.
In other words, should an innocent person be killed by the state because his trial lawyers failed to find evidence of his innocence before he was convicted?