Innocent Dead Men Walking

Some innocent dead men walking can now take hope. Two cases have been decided in the last four months that suggest that in the United States, at last, it may actually make a difference whether or not the prospective visitor to the death chamber is guilty or innocent. A New York case decided in November may give some guidance to other courts considering the question, if not to the Clarence Thomas-Antonin Scalia duo for whom innocence is less important than finality. The two friends most recently expressed themselves in the case of Troy Anthony Davis.

Troy was convicted by a jury of murdering an off-duty police officer in Savannah in 1989 and sentenced to death. Following his conviction some of the witnesses against him recanted their testimony and implicated the prosecution’s chief witness. After his state remedies to obtain reversal of his conviction were exhausted, Troy took the unusual step of filing an original writ of habeas corpus in the U.S. Supreme Court hoping to get relief on the grounds that he was in fact innocent as shown by evidence that was unavailable at the time he was convicted. Over the dissent of Messrs. Thomas and Scalia the Justices referred the case to a Federal District Court and ordered it to “receive testimony and make findings of fact” as to whether the proffered evidence establishes Troy’s innocence.

The Scalia-Thomas duo objected to the referral. They wanted finality irrespective of Troy’s guilt or innocence. Ever a stickler for procedural propriety, Justice Scalia observed at the outset of his objection to the Court’s action, that it had been almost 50 years since the Court had favorably acted on a petition like Troy’s. He did not stop there, however. He explained that the Antiterrorism and Effective Death Penalty Act of 1996 imposed limits on the ability of Federal Courts to release Troy because that Act says “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings” unless the judgment offended (my words-not the statute’s) federal law in a manner that Justice Scalia believes Troy’s conviction clearly did not. He believes that an “actual-innocence claim” asserted by a “dead man walking” should be treated no differently from any other claim that asserts a conviction was wrongfully obtained because of, for example, a minor procedural error. To prove he is not some nut off in right field, Justice Scalia observed: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.” The results of Troy’s referral to a Federal District court are not yet known. What is known is that people in New York are considerably more concerned with claims of “actual innocence” than the Scalia-Thomases.

In the case of the People of the State of New York against Fernando Bermudez Justice John Cataldo of State Supreme Court in Manhattan said that in considering whether to reverse a conviction he would, among other things, consider whether Mr. Bermudez had “demonstrated his actual innocence by clear and convincing evidence.” Mr. Bermudez spent 18 years in prison for a murder Justice Cataldo concluded he had not committed. In Judge Cataldo’s 73-page opinion he identified several errors committed by the lower court that by themselves, he said, would warrant a new trial. He concluded, however, by saying the defendant has “demonstrated his actual innocence” by clear and convincing evidence and therefore vacated Mr. Bermudez’s conviction.

Commenting on Judge Cataldo’s ruling, New York State Senator Eric Schneiderman said the ruling “dramatizes the need to ensure that actual innocence is established as a legitimate ground for a hearing.” Senator Schneiderman is one of the sponsors of legislation introduced in the New York State Senate known as the “actual innocence justice act of 2009.” It says a motion to vacate a judgment would be appropriate if the defendant is “actually innocent of the crime or crimes of which he or she was convicted.”

As Mr. Bermudez left Sing Sing in November he was quoted in the New York Times as saying: “This is a day for other people to have hope that justice is possible in this country.” If Justice Scalia were asked to comment on Justice Cataldo’s ruling, on the other hand, he would lament the sacrifice of finality on the altar of innocence.

CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be e-mailed at brauchli.56@post.harvard.edu.


More articles by:
Weekend Edition
March 16, 2018
Friday - Sunday
Michael Uhl
The Tip of the Iceberg: My Lai Fifty Years On
Bruce E. Levine
School Shootings: Who to Listen to Instead of Mainstream Shrinks
Mel Goodman
Caveat Emptor: MSNBC and CNN Use CIA Apologists for False Commentary
Paul Street
The Obama Presidency Gets Some Early High Historiography
Kathy Deacon
Me, My Parents and Red Scares Long Gone
Jeffrey St. Clair
Roaming Charges: Rexless Abandon
Andrew Levine
Good Enemies Are Hard To Find: Therefore Worry
Jim Kavanagh
What to Expect From a Trump / Kim Summit
Ron Jacobs
Trump and His Tariffs
Joshua Frank
Drenched in Crude: It’s an Oil Free For All, But That’s Not a New Thing
Gary Leupp
What If There Was No Collusion?
Matthew Stevenson
Why Vietnam Still Matters: Bernard Fall Dies on the Street Without Joy
Robert Fantina
Bad to Worse: Tillerson, Pompeo and Haspel
Brian Cloughley
Be Prepared, Iran, Because They Want to Destroy You
Richard Moser
What is Organizing?
Scott McLarty
Working Americans Need Independent Politics
Rohullah Naderi
American Gun Violence From an Afghan Perspective
Sharmini Peries - Michael Hudson
Why Trump’s Tariff Travesty Will Not Re-Industrialize the US
Ted Rall
Democrats Should Run on Impeachment
Robert Fisk
Will We Ever See Al Jazeera’s Investigation Into the Israel Lobby?
Kristine Mattis
Superunknown: Scientific Integrity Within the Academic and Media Industrial Complexes
John W. Whitehead
Say No to “Hardening” the Schools with Zero Tolerance Policies and Gun-Toting Cops
Edward Hunt
UN: US Attack On Syrian Civilians Violated International Law
Barbara Nimri Aziz
Iraq Outside History
Wilfred Burchett
Vietnam Will Win: The Long Hard Road
Victor Grossman
Germany: New Faces, Old Policies
Medea Benjamin - Nicolas J. S. Davies
The Iraq Death Toll 15 Years After the US Invasion
Binoy Kampmark
Amazon’s Initiative: Digital Assistants, Home Surveillance and Data
Chuck Collins
Business Leaders Agree: Inequality Hurts The Bottom Line
Jill Richardson
What We Talk About When We Talk About “Free Trade”
Eric Lerner – Jay Arena
A Spark to a Wider Fire: Movement Against Immigrant Detention in New Jersey
Negin Owliaei
Teachers Deserve a Raise: Here’s How to Fund It
Kollibri terre Sonnenblume
What to Do at the End of the World? Interview with Climate Crisis Activist, Kevin Hester
Kevin Proescholdt
Secretary of Interior Ryan Zinke Attacks America’s Wilderness
Franklin Lamb
Syrian War Crimes Tribunals Around the Corner
Beth Porter
Clean Energy is Calling. Will Your Phone Company Answer?
George Ochenski
Zinke on the Hot Seat Again and Again
Lance Olsen
Somebody’s Going to Extremes
Robert Koehler
Breaking the Ice
Pepe Escobar
The Myth of a Neo-Imperial China
Graham Peebles
Time for Political Change and Unity in Ethiopia
Terry Simons
10 American Myths “Refutiated”*
Thomas Knapp
Some Questions from the Edge of Immortality
Louis Proyect
The 2018 Socially Relevant Film Festival
David Yearsley
Keaton’s “The General” and the Pernicious Myths of the Heroic South