Among the witnesses who did not recant a word of their testimony against Davis were three members of the Air Force, who saw the shooting from their van in the Burger King drive-in lane. The airman who saw events clearly enough to positively identify Davis as the shooter explained on cross-examination, "You don't forget someone that stands over and shoots someone."
In re Davis, 130 S. Ct. 1 (2009) (Scalia, J., dissenting). Justice Stevens addressed his brother's arguments in a concurrence:Today this Court takes the extraordinary step-one not taken in nearly 50 years-of instructing a district court to adjudicate a state prisoner's petition for an original writ of habeas corpus. The Court proceeds down this path even though every judicial and executive body that has examined petitioner's stale claim of innocence has been unpersuaded, and (to make matters worst) even though it would be impossible for the District Court to grant any relief. Far from demonstrating, as this Court's Rule 20.4(a) requires, “exceptional circumstances” that “warrant the exercise of the Court's discretionary powers,” petitioner's claim is a sure loser. Transferring his petition to the District Court is a confusing exercise that can serve no purpose except to delay the State's execution of its lawful criminal judgment. I respectfully dissent.
Justice SCALIA's dissent is wrong in two respects. First, he assumes as a matter of fact that petitioner Davis is guilty of the murder of Officer MacPhail. He does this even though seven of the State's key witnesses have recanted their trial testimony; several individuals have implicated the State's principal witness as the shooter; and “no court,” state or federal, “has ever conducted a hearing to assess the reliability of the score of [postconviction] affidavits that, if reliable, would satisfy the threshold showing for a truly persuasive demonstration of actual innocence,” 565 F.3d 810, 827 (C.A.11 2009) (Barkett, J., dissenting) (internal quotation marks omitted). The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing. Simply put, the case is sufficiently “exceptional” to warrant utilization of this Court's Rule 20.4(a), 28 U.S.C. § 2241(b), and our original habeas jurisdiction.
Chief Judge William T. Moore of the U.S. District Court in Savannah, an appointee of President Bill Clinton, convened the hearing in June 2010 -- whereupon Davis’ case crumbled. Much of his “new” evidence had already been heard by the original trial jury. Some of his witnesses fared badly on cross-examination, while prosecution testimony stood up.Davis’ lawyers declined to put two of Davis’ purported recanting witnesses on the stand, though they were available – one even waited outside the courtroom. Judge Moore quite logically found these omissions “suspicious.”Davis’ lawyers did not call the “real” shooter; nor did Davis, with his life on the line, testify. Perhaps this reflected his experience at trial, where he told his story to the jury, and the jury did not believe it.In August 2010, Moore issued a 174-page ruling, in which he picked apart Davis’ factual claims one by one, concluding, “The vast majority of the evidence at trial remains intact.”
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