Scalia, SCOTUS & Troy Davis’ Last Gasp

Late yesterday afternoon, the Supreme Court of the United States stayed the execution, set for Tuesday night, of Cleve Foster in Texas. The words of the order were simple:

The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is granted pending the disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the mandate of this Court.

But there is way more than meets the eye here, because this is not Foster’s first time to the Supreme Court stay rodeo. From a CBS News report earlier in the day before the stay was issued:

Cleve Foster, a Texas inmate sentenced to die for the rape-slaying of a Fort Worth woman nearly a decade ago, is scheduled to be executed tonight – he has been spared from the death chamber twice this year amid appeals.
Foster, 47, is set to die Tuesday evening for fatally shooting 30-year-old Nyaneur Pal, whose body was found in a ditch by pipeline workers on Valentine’s Day 2002. Foster’s execution would be the 11th this year in Texas.

That is what is unusual here. Foster has been up to the Supremes twice and was bounced back the last time without even reaching the merits. Yet here he is again – with a stay – a stay in which the process was initiated by Antonin Scalia. Now the truth of the matter is Scalia is the designated on call judge, what we in the criminal defense bar colloquially term the “hot judge”, for the 5th Circuit, so it would go through Nino. But, still, it is fascinating to see two death cases in five days stayed out of Texas, the death penalty capital of the world, with Scalia’s name on the order.

Foster won his first pardon in January from the U.S. Supreme Court, which halted his execution again in April when it agreed to reconsider an appeal that raised claims of innocence and poor legal assistance early on in his case.

His execution was rescheduled for Tuesday after the high court turned down that appeal.

I was half convinced the Court might even lift the new Foster stay Tuesday night, but I am on the after hours contact list, and have received no such notice as of the time of the instant posting and it is now into Wednesday morning.

Remember, I said this was the second such instance in the last five days? The other one was Duane Buck late last Thursday, which was also somewhat unexpected, although, perhaps, less so than Foster.

Still, that is two surprising instances of death stays by the Supremes in a very short time. Which brings us back to the most talked about execution case in recent memory, Troy Davis in Georgia. Is it a sign or signal from the Supreme Court to Troy Davis’ attorneys and/or the Georgia Clemency Board? Well, probably not literally, no; it would be pretty hard to make that case.

But, figuratively, maybe the case could be made. If a man in the two time strike out posture of Cleve Foster can obtain a stay on application as he did yesterday, the day of his putative execution, why cannot Troy Davis still approach the Supreme Court?

This is the man we are talking about:

Troy has refused to have a “last meal.” He has faith his life will be spared.

In the past, his tremendous faith has been rewarded. The last time Troy faced execution, in 2008, the warden brought in what was to be his last meal. But Troy refused to eat. Looking the prison staff in their eyes, he explained this meal would not be his last. He was vindicated when he received a last minute stay. Guards still remember this as a haunting moment, one rooted in Troy’s deep faith.

Still, there is every sign the state of Georgia intends to execute Troy this time–despite calls for them to stop by everyone from the former head of the FBI, William Sessions, to former US President Jimmy Carter.

Troy has prepared himself, and to the extent anyone can, his family, for either outcome.

As he has said many times “They can take my body but not my spirit, because I have given my spirit to God.”

The common wisdom, and repeated meme in the press, is that there is no remaining available judicial path for Troy Davis. But this may not necessarily be true. There are paths left to be pursued, even if narrow and dimly lit. And in an imminent execution situation, anything and everything must, and will, be pursued. The dedication, intensity, selflessness and never say die, literally, attitude of death penalty lawyers is legendary. If you have not seen them in action, you don’t know, but it is a thing of beauty.

Here is but one possible path, among many, which could possibly be attempted in one form or another by the Davis defense team. There has just, quite recently, been a fairly landmark study released on the unreliability of eyewitness testimony. Granted, the AJS study pertains to eyewitness testimony as related though police lineups, but it is further concrete evidence of a changing landscape in how the unreliability of eyewitness identification in general is treated, and the picture is quite disturbing as to lack of reliability and veracity.

Now the issue of eyewitness identification infirmity has been reviewed before in the case of Troy Davis, but not in the bright new light emerging recently. And there is one other important difference now. The Supreme Court has scheduled for oral argument on November 2, 2011 the seminal eyewitness ID case of Perry v. New Hampshire.

Here is how SCOTUSBlog summarizes the germane issue in Perry v. New Hampshire:

In a criminal case, is a court required to exclude eyewitness identification evidence whenever the identification was made under circumstances that make the identification unreliable because they tended to suggest that the defendant was responsible for the crime, or only when the police are responsible for the circumstances that make the identification unreliable?

Well then, there is your potential hook, because in the case of Troy Davis there is simply a boatload of issues within the ambit of the eyewitness issue framed in Perry. As related in a nice article in Time dated yesterday:

“Seven of the nine witnesses have recanted at this point. That in and of itself is problematic,” says Mary Schmid Mergler, Senior Counsel for the non-profit Constitution Project, whose high-profile advisers (a mix of abolitionists and death penalty supporters) have come out in favor of clemency for Davis. “But the most troubling thing is just the fact that a death penalty conviction rests solely on eyewitness testimony to begin with.”

So, there is but one potential cognizable issue; however, the better question may be how to successfully plead it, or any other devised on behalf of Davis. One path might be to file what is known as a “state court successor” action, which will be denied, and then try to piggy back an appeal from that onto a certiorari question present in another case the Supreme Court already seems interested in addressing. Say, for instance, Perry v. New Hampshire. This is what was done in the Cleve Foster case described at the beginning of this post. Another alternative might be to try to fashion a new federal habeas out of the issue. You need some constitutional error to do so and, again, it is a bit weak perhaps, but Perry could arguably be attached as a basis.

Now the bad news. Pretty much every conceivable issue, including general forms of eyewitness arguments, have been made and denied before in the case of Troy Davis. Any new attempt will have to go through the same brutal gauntlet of southern courts in Georgia and/or the 11th Circuit. There is little hope there, any potential meaningful stay, much less real relief, will have to come from the Supreme Court. Nino Scalia has already once called Troy Davis’ case a “fools errand” as did his acolyte Clarence Thomas. But that was before many of the incredible amount of infirmities were made of record in the convoluted case procedural history. Maybe, just maybe, Scalia and the Court’s conservative bloc love their precious death penalty enough to keep it clean from the taint the wrongful and unjust execution of Troy Davis would bring.

This is but a glimpse of the kind of desperate ends death penalty certified specialists will go to in defense of their clients on the line. The chances may be slim to none, but you try everything. Because nothing less is acceptable. Thankfully, the Davis team will have a lot more, and a lot better, theories than the above. It ain’t over until it’s over.

I want to thank my friend Dahlia Lithwick of Slate Magazine, and my new friend, David Dow of the University of Houston Law Center, Texas Innocence Network and author of The Autobiography of an Execution. The somewhat goofy thoughts here are mine, and Dahlia and David should not be blamed for them; however they gave me great feedback and discussion on this most depressing and critical case in American jurisprudence.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
39 replies
  1. Terry Olson says:

    Just want to say great thanks. Has our judicial system become a killing machine? And heralded at that? WTF?

  2. ezdidit says:

    Ssssssskammen! Judge Moore raises the bar of justice so high that corruption – police corruption & state’s attorney corruption – may pass with a wide berth…at the expedient cost of a man’s life.

  3. nomolos says:

    Ah, the very subject in a discussion at our house last night but we were discussing politics and the Supremes actually doing their bit in stopping the Perry president train.

    The consensus was that USACorp wants either a continuation of the Big Zero as CEO or, alternatively, Romney who is etically as pliable as a person can be.

    And this discussion was before there knowledge of the second postponement of State SponsoredMurder in a few days.

  4. Mary says:

    Thanks for this piece, bmaz. As I’m reading it, I’m hearing in the background on the news that Davis’ lawyers are filing an appeal based on the ballistics testing – I think you’ve laid out an option worth pursuing, although it’s hard to have hope on this case and at this stage. I wonder how death penalty lawyers do it – with all the decks stacked against them and yet they keep on trying, any way and every way. Even more, I wonder how the prosecutors do it, when there are such clear and huge issues and a life is at stake. Thank you, and your new best friend as well, for this piece and your other work.

  5. rugger9 says:

    Davis has had more dates set than Foster, I believe. There has been lot of litigation regarding the case, as the ghouls point out, but in every case it seems that the door was closed on Davis due to procedural reasons, technicalities, but not on the merits of the case.

    As it is, I happen to be a supporter of death penalty, but only if you are CERTAIN YOU HAVE THE RIGHT PERP. That isn’t the case here, no forensics, no DNA, 7/9 witnesses recanted many of them citing police pressure for their prior testimony, the principal accuser just happens to be the owner of a gun similar to do the deed [the weapon wasn’t recovered, either] and just happened to know Davis was the guy who bought his gun without any paper trail, and who was well known to the authorities. Reasonable doubt, sure enough.

    There is no reason that the MERITS of the appeal should not be argued. Hiding in the technicality jungle as the ghouls are doing simply highlights how flimsy their case is. It’s similar to why the Prop 8 supporters didn’t want the court tapes released, everyone would see they’ve got nothin’. Saying things like “it wasn’t raised” or “the window has passed” glosses over the fact that the basic right to life, liberty, and pursuit of happiness in the Declaration of Independence, as modified by the Due Process clause of the 14th Amendment [among others] simply screams that the cards be laid on the table. Otherwise they execute a potentially innocent man. If the prosecution has nothing to hide, why not?

  6. bmaz says:


    Well, you know, there is a time and a place for cutoff dates and technical defenses and the like; but it sure as heck is not when there is a question of an innocent man being executed.

  7. orionATL says:

    central to my condemnation of the state and federal judiciary in the troy davis case is

    that legitimate questions have been raised about davis’ guilt

    yet our state and federal judges dealing with this potentially terrible injustice

    refuse to find a way to allow new, possibly exculpating, information to be considered.

    this is infuriating and profoundly unjust behavior from the appellate judges.

    this is the same injustice due to fundamental judicial missfeasance that the federal judiciary has engaged in the many cases at guantanamo.

    a judicial system that willnot protect citizens from government misconduct or incompetence

    is a judicial system complicit in, and assuming responsibility for, the government misconduct or incompetence which appellate judges refuse to use the law to address.

    these judges, state and federal, choose to hide behind the law, engaging in pettifoggery by the ream, and deluding themselves that their inexcusable insensitivity to justice is hidden from us, the citizens.


    the judges are not to be trusted and

    their decisions are not legitimate.

  8. bmaz says:


    I could not disagree more. From what I see on a daily basis, and considering the absolutely incredible amount of cases that pass through the different levels, the American court system does an incredible job. We focus on the most complex, toughest, and most politically charged cases imaginable. We also focus, necessarily, more on what is wrong than what is right, and that leads to maybe a skewed perception of the whole.

  9. orionATL says:


    injustice happens in any big system.

    that does not mean it is to be excused or tolerated,

    most especially not by the lawyers and judges who ARE the system.

    the cases you see that satisfy your standards i do not see.

    what i DO see are cases like the troy davis and jose padilla cases where there is reason to believe that severe injustice has been done an individual by that judicial system.

    when judges, appelate judges in particular, fail to redolve a serious specific case of injustice, they create a mark against the legitimacy of the judicial system.

    too many of these marks, and by my count we have more than too many in the last decade, and the judicial system loses legitimacy .

    the american federal judicial system at appeals level has lost their legitimacy.

    quantity and complexity of cases handled, bmaz, is never a measure of the quality of the justice meted or of the legitimacy of the appellate system.

    i could not put it more simply than this:

    the job of an appellate judge is to see that injustice is not perpetrated in the system. an inexcusable injustice appears to have been perpetuated in the case of troy davis. nor has there been lack of time or lack of critical information for judges to consider.

  10. Bill Michtom says:

    Since the criterion for guilt is “beyond a reasonable doubt,” the discussion of innocence is irrelevant–especially for execution.

  11. YankeeFrank says:

    @Bill Michtom:

    Bill, you sound like a computer. Perhaps we should replace judges with computers since binary logic seems so favorable to you.

    You also sound, ironically enough, like Scalia, who in a decision within the last year or two said basically the same thing (and I paraprhase) — guilt or innocence has nothing to do with whether a person is executed.

    I say to you and all who hold such sterile and inhuman views that if execution is to occur despite innocence, then the system itself must be executed for malfunction and criminality, or it must be honestly named and described as the execution system, NOT the justice system.

  12. rkilowatt says:

    …”From what I see on a daily basis…

    What is not seen are the failures to prosecute injustice at the regulatory and control levels. Such failures are not communicated by any “visible” sources. They are “disappeared” into nonexistence by their invisibility.

    What isn’t prosecuted, isn’t. That’s the workable modus operandi.

    Banksters, tax-farmers, regulatory capture,
    professional loophole creators, etc., all use non-transparency as cover.

    Kings, queens, nobles, high-priests down thru displays of robes, tuxedos and chestfulls of medals and even the lowly tie…all tells of the immunities of privilege and the thrills of tyranny and pronunciamentos.

    Simply recall “yearning to breathe free” and consider “free of what?”.

  13. bmaz says:

    @rkilowatt: Right, but those are decisions by the executive branch to charge or not charge, not a fault of the court system or legitimacy of judges. At root, no system is better than the people chosen to lead it; the ultimate fault lies in the people, and their choices, not primarily the system per se.

  14. rugger9 says:

    Exactly my point. This is why they need to examine the merits, if for no other reason than that the true killer is still out there.

  15. rugger9 says:

    Orion does bring up the very valid point, in that if there is a perception that justice is not available in court, then it will be sought elsewhere, as noted in 1600s England, with much disquiet. It is a common thread throughout the millenia concerning uprisings in various lands.

    Yankee, you might be reading too much into Bill’s statement, I see it as a clear refutation of the DP, in that Reasonable Doubt = Not Guilty, and Davis shouldn’t be in this hole now. Plus, the real killer appears to still be out there, so exactly how are we safer?

    The fact that the appellate level exists to correct these kinds of injustices, yet these Bu$hies [recall the fight over Pryor’s confirmation and the upperdown demands by the GOP, strangely missing now…] resort to technicalities to carry out their agenda. To all of those who railroaded this through, you will own this murder if innocence is found later, and that includes the cop’s family. And God doesn’t forget.

  16. JTMinIA says:

    NPR was hosting a discussion of Davis all afternoon. Many guests and callers said something along the lines of “we should not ever kill someone that we aren’t 100% sure is guilt.” While I, of course, couldn’t help agree with this, I also found it strangely naive and old-fashioned. We torture people without be sure of their guilt or useful knowledge; why shouldn’t we kill people too?

  17. rugger9 says:

    bmaz is correct in that the court system normally does function well, but there are a couple of things that hurt the perception of fairness, absolutely necessary to civility in dispute resolution:

    * The ideologues rammed through by GOP administrations are doing the very thing the GOP whines about constantly, legislating from the bench in activist mode. That means clear bias in how a case is decided, not stare decisis or precedent. And since the root of the bias seems to be usually tied to $$$ or political connections, what the actual rules are for us to follow aren’t clear any more.

    * The cementing of the GOP advantage in their union busting and voter interference activities, all the while allowing unlimited corporate interference in elections with unaccountable voting machines means that the ballot box is no longer viable to change the walls that close in on those who aren’t the favored few. Those on the outside aren’t going to like it. The MOTUs don’t care because they own all of the ways to redress the injustice, and think they can muzzle the proles indefinitely. Seriously, as it is now, Saudi Arabia could decide who our next President is by the cash tossed into the elections, is that what you Teabaggers really thought you voted for? Because you did vote for it.

  18. JohnT says:

    Here is but one possible path, among many, which could possibly be attempted in one form or another by the Davis defense team. There has just, quite recently, been a fairly landmark study released on the unreliability of eyewitness testimony. Granted, the AJS study pertains to eyewitness testimony as related though police lineups, but it is further concrete evidence of a changing landscape in how the unreliability of eyewitness identification in general is treated, and the picture is quite disturbing as to lack of reliability and veracity.

    It’s called memory misattribution. Watch these two videos

    I admit, I failed the test in the second video

  19. rkilowatt says:

    Inherent in any system created by privileged elites is intention/design to give immunities to its creators and self-preservation of their status as elites.

    For such system to persist thru time, the system itself must disallow its uncreation. This is accomplished by provisions in the system to effectively delimit selection of its managers to privileged elites or their subordinates.

    To wit, the Constitution was designed to produce this very result. Its designers were tormented/twisted/overwhelmed by slavery and other, narrow self-interests.

    That includes the great mind and works of Thomas Jefferson, who mightily conquered rampant religious infighting, only to succumb to the system of slavemaster and slavery as his ticket to elite status.

    We inherited a political system that delimits “the people chosen to lead it”. There is elite-narrowed selection of the candidates from among whom “the people” can choose. A really clever-stroke that serves well its creators, who have lots of “skin” in their game of preservation of status as elites.

    E.g., the subsystem of selection of Senators and their trumping powers is a joy that brings tears to elites.

  20. rugger9 says:

    However, the Constitution still provides the right to petition for redress in the First Amendment, and due process in the 14th, as well as restrictions on USG powers in other amendments. It even provides that one doesn’t have to pay to vote (as they are trying to do in WI and elsewhere).

    What the RW judicial activism is doing is isolating that safety valve for discontent, and it will bite them. I will also note that it is more probable that the Teabaggers will do the deed when that time comes, since no one is more pissed off when they realize they’ve been had.

    While I still played, we could handle a bad referee, but not a biased one.

  21. bmaz says:


    The “Hot Judge” is the designated judge for a certain geographical (in this case, the 11th circuit) or certain assigned time period, that all emergency petitions, writs and application can be presented to 24 hrs a day.

  22. P J Evans says:

    Reportedly it was issued by Thomas.

    I’m bothered by the people who believe that just being arrested means you’re guilty, and that police are never wrong or lying when they testify.
    (I know someone whose son was charged with murder based on the ‘eyewitness’ testimony of a retired police officer from out of state, who was on the other side of a six-lane street, looking through a window. He ended up taking a plea bargain of illegal possession of a firearm.)

  23. Peterr says:

    SCOTUS denied the request for a stay. The full order [pdf] was brief and to the point: “The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is denied.”

    Bmaz, it sounds like maybe Scalia was on vacation or otherwise unavailable, and so Thomas became the justice on call.

  24. posaune says:

    I weep for what we have become. I weep for my mother who worked for Robert Jackson for 5 years at Nuremburg. And now look at us.

  25. orionATL says:


    your passion, caring, and sense of loss are of consequence here. i think it is reasonable to believe that your mother who taught you would believe the same.

    i’m not a lawyer, but robert jackson is one of my heros.

    he has that status because he was one of the very, very few powerful people who dared speak out, and speak out passionately, against the abuse
    of the very power (prosecutorial) he held.

    justice robert jackson would have had, i suspect, some very caustic rejections of the injustices suffered by jose padilla or tony davis.

  26. rkilowatt says:

    @rugger9: Alas, the Amendments were and are just touching afterthoughts to the Constitution.

    The Const. remains the core system and was composed by authors whose idea of a system of governance entirely omitted the the vital aspects in the Amendments.

    The foundation monitors all amendments as quicksand to a glorious tower.

    Montana Gov. Wheeler pointedly explained that politicians function as the backstop behind the catcher in baseball. Their job is to protect the box seats. [from Kenneth Rexroth’s autobio in conversation with Wheeler in early 1920s.]

  27. rugger9 says:

    One of the problems systemically is that as a convict, Davis had the burden of proof to show his innocence on appeal, whether that is by design or by precedent is not clear. It does seem to me however, that it is worth examining why seven of nine witness recanted, why Davis had to find and subpoena his accuser on his own, and so on in a series of procedural kabuki motions that ended up preventing the debate of his motions on the merits. When it is combined with bloodthirsty ideologues in robes, as this case was, the writing was indeed on the wall for Davis.

    When Davis is cleared, is the prosecutor going to be held accountable? I understand in France tat prosecutorial misconduct that results in punishment is itself punished by whatever the defendant got. 30 years, the prosecutor gets 30. One other aspect is that justice is replaced by “winning cases” as a basis for evaluating prosecutor effectiveness. You see it in every DA race [CA has elected DAs], the conviction rates but no a peep about justice. It’s why the SJMN series last year was so damning [and probably tipped the scales against the Santa Clara COunty DA Delores Carr, even before one realizes that Rosen is much better], because prosecutor misconduct is so routine. Or you can check out for the Southern view.

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