The Supreme Court on an original petition for habeas corpus ordered the US District Court for the Southern District of Georgia to hold hearings and to decide whether evidence developed since the trial of Troy Davis establishes Davis’ innocence.

Troy Davis was charged with and convicted of the murder of an off duty Georgia police officer. Nine witnesses testified for the prosecution at trial. Seven of these witnesses have recanted. This will give a Federal judge the power to listed to these witnesses and other witnesses that have come forward and determine whether or not Troy Davis is telling the truth when he says he is innocent. It will not be an easy job. To meet the Supreme Court’s test Davis will have to “clearly establish” his innocence. This is a much more difficult task than proving, at trial, that there is a reasonable doubt that he is not guilty.

Justice Scalia dissented from the Court’s opinion. He asserts that Davis is guilty and that the District Court is without power to change the result of the trial. Justice Stevens filed a concurring opinion disputing Scalia’s argument. As Justice Stevens points out no court has ever had a hearing to determine the validity of the numerous affidavits challenging the lower court decision. He points out that the lower court may find that restrictions on reversing lower court decisions may not apply to original petitions in the Supreme Court or to findings of innocence either on statutory grounds or on constitutional grounds.

There is good reason not to apply the rules for habeas corpus to findings of innocence. By definitions findings of innocence imply that evidence, not available at trial and only developed post trial, prove the defendant’s innocence. Since the habeas rules apply strict timelines evidence found years after trial would not be admissible in a habeas. Yet this post trial evidence is the very type of evidence one would expect in a claim of innocence. This is particularly important in a case such as Troy Davis’ where he is sentenced to death. As Justice Stevens pointed out we certainly do not want to execute the wrong person.

In Michigan v. Jackson the Supreme Court held that if a defendant asserts his/her right to counsel at an arraignment or similar hearing any waiver of the right to have counsel present when the police initiate an interrogation is considered invalid. In Montejo v. Louisiana the Supreme Court yesterday overruled Jackson

In Montejo, a murder case, the defendant remained quiet while the Louisiana Court at what it calls a 72 hour hearing automatically appointed counsel. But before counsel could meet with the client the police got the defendant to show the police where the murder weapon was located. While the defendant was helping the police find the weapon and after Miranda warnings were given and waived the defendant wrote a letter to the family of the victim apologizing for killing the victim. Over objection this letter was read at trial and the defendant was convicted of murder.

Under a strict reading of Jackson the facts in Montejo do not apply since there was no request for counsel. But the Supreme Court was worried about the uniform application of the law, since the states divide with approximately half requiring a defendant to request counsel and approximately half automatically appointing counsel. The rule of law should not depend on whether the state requires a request or automatically appoints counsel.

But the underlying reason for Jackson, according to the Court, the prevention of badgering by the police once a defendant requests counsel is not applicable in those states that automatically appoint counsel. Furthermore the Court found in an opinion by Justice Scalia that defendants are sufficiently protected by Miranda, which requires that defendants be told that they have a right to the presence of counsel at an in custody interrogation, Edwards v. Arizona, which held that once a defendant had asserted his/her Miranda rights further interrogation could not occur until an attorney was appointed, and Minnick v. Mississippi which held that the attorney must actually be present at any interrogation after the defendant asserts his/her Miranda rights. Weighing the injury to the truth finding function of our courts against the protection of Fifth and Sixth amendment rights provided by Miranda, Edwards, and Minnick the majority of the Court found that Jackson’s protection of the defendant’s rights was outweighed by society’s need for valid confessions.

Justice Stevens, in dissent, points out that the majority misunderstand the basis for Jackson. It is not based upon the Fifth Amendment need to protect the defendant from badgering as is Edwards, but rather it is based on the Sixth Amendment need to ” ‘protec[t] the unaided layman at critical confrontations with his adversary,’ ” Unlike Edwards, and like Jackson, Montejo involves post arraignment police interrogation. It is only at arraignment that the Sixth Amendment right to counsel is incurred. While Justice Stevens agrees that the Louisiana Supreme Court does a great disservice to the Supreme Court’s interpretation of Jackson. He would merely override the Louisiana Supreme Court’s decision and he would maintain the ruling of Jackson under the rule of stare decisis, particularly in light of the fact that none of the parties asked that it be overruled.