What the court actually reviews in death penalty cases

One of the frustrating things about the Troy Davis case is how many people actually do not understand what all these appeals courts (including the Supreme Court) have been reviewing.  I’ve been hearing (and reading from my on-students) the idea that with all these court reviews, surely he must have really been guilty.  Of course, appeals courts don’t weigh in on guilt or innocence.  In fact, just because it is entirely obvious to anybody who’s paid the least bit of attention to the case (i.e., 7 or 9 witnesses recanted) that there is far more than reasonable doubt, that is most definitely not the standard for overturning a verdict.  Rather, it is the much higher standard of whether new evidence/information presents a “clear and compelling” case that a jury would have found differently if exposed to this new information.  That convulsed standard is much higher than whether an appeals court thinks now whether there was a reasonable doubt or not.  Thus, courts refusing to overturn the Troy Davis verdict does not at all suggest they think the original jury was actually right.  Just that the evidence is not overwhelming that they were wrong.   Alas, I don’t think I’ve come across any articles that actually explain this.  The best explanation I came across was Slate’s Emily Bazelon discussing it on this week’s political gabfest.  It’s what Mark Kleimann is referring to here (though he assumes an audience who understands the legal points):

The deeper problem is a criminal justice system where “due process” produces infinite delay but where the doctrine of “finality of judgment” makes it impossible to review in any forthright manner cases where the wrong guy get bagged for the crime.

The notion that a man can be executed – or kept in a cage forever – because his lawyers failed to prove his innocence (after a flawed, but procedurally correct, initial conviction) ought to outrage everyone with a sense of natural justice.

Anyway, a very important point.  It would be great if more death penalty defenders actually understood it.

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