Last year the Supreme Court, in a highly unusual move ordered the lower courts to hold a hearing to determine whether Troy Davis, a convicted murderer was actually innocent.

While the Supreme Court often hears direct appeals and appeals involving writs of habeas corpus. these appeals generally involve procedural and legal matters. In the absence of a flawed procedural or legal matter it is generally assumed that the finding of a jury is sacrosanct.

Pursuant to the Supreme Court’s order Judge William T. Moore Jr. of the Southern District of Georgia held an evidentiary hearing allowing Troy Davis to present witnesses in an attempt to show that evidence that was not available at the time of his trial exculpates him.

The court found that Davis presented insufficient evidence that a jury could find by a clear and convincing standard that he was innocent. He provided several types of evidence. Much of the evidence was recantations of evidence presented at trial. But the court found much of the recantations not credible and found the rest of the recantations to be too weak to convince a jury. Davis also presented evidence that another person, Sylvester Coles committed the murder including, hearsay statements by Coles. But again in light of the hearsay nature of the statements the court found it too weak to exculpate Davis. Other evidence was directly exculpatory. But the court found it to be smoke and mirrors and did not find it to be credible.

But prior to making his finding that Davis did not prove his case, Moore found that the Eighth Amendment permitted post trial findings of innocence when new evidence is presented. In a number of cases the Supreme Court has considered the appropriateness under the Eighth Amendment of the death penalty based upon the characteristics of the offender. In such cases the Court has used a two step process.

First, a court “considers ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue. . . . Second, a court must independently determine whether the punishment in question violates the constitution based upon precedent and the court’s ‘understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose.’”

As to legislative enactments the court took notes of numerous enactments including those allowing DNA test post conviction to test jury convictions. It pointed out that much of the purpose of our criminal laws is to prevent the imprisonment and execution of innocent people. Therefore Moore found that the Eighth Amendment requires the exculpation of innocent people post conviction. But it found that Troy Davis had not proved his innocence. This is not the last word. The decision will be appealed.