Having reported on the yoyo status of the Troy Davis execution, another shocker came yesterday when the 11th Circuit issued yet another stay of execution, scheduled for this coming Monday.  According to the Atlanta Journal-Constitution :

On Wednesday, Davis asked the 11th Circuit for permission to pursue a new federal habeas corpus petition in which an inmate claims he is unlawfully incarcerated. The Antiterrorism and Effective Death Penalty Act of 1996 requires a federal appeals court to approve such a request before such a new lawsuit can be filed.

“Upon our thorough review of the record, we conclude that Davis has met the burden for a stay of execution,” the court said in an order issued by Judges Joel Dubina, Rosemary Barkett and Stanley Marcus.

The judges called the stay “conditional” and said they want to hear more from Davis’ lawyers and state attorneys.

What is so surprising about this stay is that it comes on the heels of the United States Supreme Court’s rejection of Davis’ petition for cert, raising the obvious question of what the Circuit saw that the Supremes did not.  while there is no available opinion as yet, the newspaper reports that:

Davis must clear two difficult legal hurdles to win a new round of appeals.

First, he must show that his lawyers could not have previously found the new evidence supporting his innocence no matter how diligently they looked for it. And he must show that the new testimony, viewed in light of all the evidence, is enough to prove “by clear and convincing evidence that…no reasonable fact finder would have found [him] guilty.”

The 11th Circuit added a twist. It asked the parties to address whether Davis can still be executed if he can establish innocence under the second standard but cannot satisfy his burden under the first, due-diligence question.

The last paragraph is the one that is most shocking, and most offensive, about existing federal law.  One would think that proof of innocence, with nothing more, would be an awfully good reason not to execute someone.  The very notion of putting an innocent person to death is reprehensible.  The very notion of putting someone who may well be innocent, even if not quite proven, is reprehensible.  But not in America.

The second prong, diligence, is the bureaucratic kicker.  It is our legal system’s elevation of process over substance. 

There is an interest in finality of legal determinations.  Cases can’t go on forever, with nothing ever being finally resolved.  As a general rule, I take no issue with this.  But like all legal truisms, there are circumstances that trump the need for finality.  Innocence is one such circumstance. 

I would be inclined to ask who amongst us is in favor of executing an innocent person, but I already know the answer:  much of our federal judiciary.  The idea that a belated claim of innocence should be ignored because it didn’t fall within arbitrary time frames, or that a defendant should die because of any number of structural defense issues that delayed learning about, or presenting, new evidence, is just offensive.  While appellate decisions clean up the mess of practical litigation reality, to stake a person’s life on the fiction of expected diligence is just plain wrong.

But this latest twist, the 11th Circuit’s post-cert-denial grant of a stay, suggests that there are judges on the court who are indeed concerned about the possibility of putting an innocent man to death.  Bravo. 

But it begs one very serious question:  What if the Circuit concludes that there is evidence to prove that Troy Davis did not murder Police Officer Mark Allen MacPhail, but that his attorney failed to act with sufficient diligence.  Are they prepared to put an innocent man to death for a procedural flaw?  Is America prepared for this? Stay tuned.