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Judge Barkett's "fervent, lonely" dissent reaches open ears of Supreme Court

One of my favorite readers has sent in this guest post, and I post it here:

Three days ago The New York Times highlighted Eleventh Circuit Judge Barkett as the author of a "fervent, lonely" dissent which expressed frustration with AEDPA's "thicket of procedural brambles." According to Judge Barkett's dissent, deathrow inmate Troy Davis was entitled to a hearing on evidence that strongly supported a compelling claim of actual innocence. The Eleventh Circuit held otherwise. But today, the Supreme Court relied heavily on Judge Barkett's dissent when ordering the district court to hold a hearing on the evidence of Davis' actual innocence. (The short, three-page order stemming from a rare grant of an original writ of habeas is worth reading for its powerful, plain, equity-driven prose.) Facing head-on against the dissenting Justices Scalia and Thomas, Justice Stevens, joined by Justices Ginsburg and Breyer, wrote:

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 (CA11 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. . . . But imagine a petitioner
in Davis?s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man. The dissent?s reasoning would allow such a petitioner to be put to death nonetheless. The Court correctly refuses to endorse such reasoning.

Judge Barkett had explained to The New York Times that her dissents are fueled by ?mostly frustration that I cannot make people see what I see." Hopefully, today's ruling gives Judge Barkett a small sense of satisfaction that her dissent succeeded in making others see what she sees.

Full post as published by Southern District of Florida on August 18, 2009 (boomark / email).