Video after the jump:

Davis, as I’ve explained before, has been on death row in Georgia since 1989, when he was found guilty of killing an off-duty police officer based on the testimony of nine eyewitnesses. There was no physical evidence directly linking him to the crime, however,  and seven of the nine witnesses have since recanted their earlier statements. Another man has also boasted of committing the crime and new witnesses have said that other man was the real perpetrator. Some of the original witnesses claim they were pressured by police to identify Davis.

Despite multiple hearings at various state and federal courts on the issue, every court until yesterday had decided that the new evidence should not be considered.

Those judges all apparently agreed with Justice Antonin Scalia’s dissent yesterday, joined by Justice Clarence Thomas, in which he called the new hearing “a fool’s errand” and said: “This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

While Ashby Jones of zyhe Wall Street Journal’s Law Blog today calls that a “fascinating question,” it’s a question that only a lawyer can love.

In fact, even Chief Justice William H. Rehnquist, no flaming liberal, wrote in 1993 that “we may assume … that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional and warrant federal habeas relief,” as Adam Liptak points out today in The New York Times.

Fortunately, a majority of justices on Monday decided that the possibility of “actual innocence” as demonstrated by the facts of Davis’s case was sufficient to require the federal judge to at least hear the evidence. 

“The Court’s decision means that we may finally know whether Georgia sought to execute an innocent man and allowed the real perpetrator to escape,” said Virginia Sloan, president of the Constitution Project, which submitted a brief on Davis’s behalf.

Although that may be because the panel did not issue a long written opinion (which Adam Liptak at The New York Times has reported was because the judges couldn’t all agree on one), opting instead to adopt the reasoning of the district court, Armando Llorens, AKA Big Tent Democrat at TalkLeft, actually bothered to read the concurring opinions among the Second Circuit justices that decided, by a majority vote, not to re-hear the Ricci case after the panel’s ruling.

Llorens finds that in fact, the panel (including Sotomayor) was being extremely conservative (as a matter of judicial philosophy, not politics) in briefly affirming the lower court’s decision. He looks to the reasoning of Calabresi, who pointed out that the white firefighters who claimed to have been denied promotions due to race discrimination failed to make the necessary legal argument supporting that claim in the court below:

In this case, the municipality claimed that its actions were grounded solely in the desire to comply with federal law. The plaintiffs alleged instead that this was not the real reason for the city’s actions, and asserted that the city had other less salubrious, and directly racial-political, reasons for what it did.

The district court and the panel readily rejected the notion that the city’s stated reason was just a pretext. But neither court went on to consider whether the city was influenced by mixed motives.

Cabranes, who conservatives have cited as “chastising” Sotomayor in urging the full Second Circuit court to re-hear the case, thought that the court should have considered whether New Haven had these “mixed motives,” which might have violated the civil rights law. But for the Second Circuit to have undertaken that analysis on its own, when the district court did not, would have been inappropriate — and activist. As Calabresi explained in his concurrence:

Given the plaintiffs’ failure to argue mixed-motive analysis, those allegations cannot be adequately evaluated. But they nevertheless cannot help but affect how we look at the city’s actions. And they may even influence, inappropriately, how we are inclined to rule on the underlying, “interesting” issue.

Difficult issues should be decided only when they must be decided, or when they are truly well presented. When they need not be decided – and rehearing en banc is always a matter of choice, not necessity – it is wise to wait until they come up in a manner that helps, rather than hinders, clarity of thought. That is not so in this case.

The emphasis above is supplied by Llorens, who seems to be the only one to pick up on this important point. For the panel to have decided whether New Haven was motivated by a mixed motive would have been an “activist” position to take. And Sotomayor and her colleagues are no activists.

That should please those Republicans who say they don’t like judicial activism. Then again, some conservatives actually like judicial activism — when it’s promoting an ideologically conservative cause.