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Politics : View from the Center and Left -- Ignore unavailable to you. Want to Upgrade?

To: JohnM who wrote (118796)	8/19/2009 11:17:02 AM
From: Travis_Bickle	Read Replies (1) \| Respond to of 541921

I don't agree the evidence is all that strong, but in any case testimony etc. is not evidence until it is admitted evidence at trial ... on appeal you can argue that the trial judge failed to admit into evidence something that should have been admitted, but you don't get a second trial (ie you don't get to present new evidence). === In reviewing an issue of fact, an appellate court ordinarily gives deference to the trial court's findings of fact. It is the duty of trial judges or juries to find facts, view the evidence firsthand, and observe witness testimony. When reviewing lower decisions on an issue of fact, courts of appeal generally look for "clear error". The appellate court reviews issues of law de novo (anew, no deference) and may reverse or modify the lower court's decision, if the appellate court believes the lower court misapplied the facts to the law or wrongly applied the law. An appellate court may also review the lower court judge's decisions of discretions, such as whether the judge properly granted a new trial or disallowed evidence. Review is for "abuse of discretion". This standard tends to be even more deferential than the "clear error" standard. en.wikipedia.org The trial court makes findings of fact, not the appellate court. ==== Davis has repeatedly asked the courts to examine the new exculpatory evidence, but so far has not been successful in persuading a majority of judges to grant him a new trial or conduct a hearing in which the recanting eyewitnesses could be cross-examined to determine the credibility of Davis’ innocence claims.[4] In October 2008, Davis filed a second Habeas petition in the 11th Circuit Court of Appeals on the grounds that it was the first time Davis was presenting a free-standing innocence claim and that no court has yet held an evidentiary hearing on the exculpatory evidence[5] of recanted testimony. On 16 April 2009 the three-judge panel denied Davis' petition on procedural grounds by a 2-1 majority. On 17 August 2009, the U.S. Supreme Court, over the dissenting votes of two justices, ordered a federal district court in Georgia to consider and rule on whether new evidence "that could not have been obtained at the time of trial clearly establishes [Davis'] innocence." On August 17, 2009, the Supreme Court, over two Justices’ dissents, ordered a federal district court in Georgia to consider and rule on Davis' claim of innocence. The Court order directed the District Court to “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis'] innocence.” [10] (The case was "In re Davis", 08-1443.) This was a highly unusual action, because original writs of habeas corpus filed in the Supreme Court are very rarely granted; the Court had not granted one of these in "nearly 50 years." The vote of the Supreme Court was not published, but some justices released opinions: Justice Scalia wrote a dissenting opinion joined by Justice Thomas,[57] and Justice Stevens wrote a separate opinion in response, joined by Justices Ginsburg and Breyer. Justice Sotomayor did not take part in the consideration of the case.[10] en.wikipedia.org ====================== So far we have a bunch of affidavits that were submitted to a court ten years after the trial. The affidavits are not evidence. The affidavits were signed after the statute of limitations on a perjury charge had expired. The SCOTUS is telling the lower court that it must consider the affidavits and decide whether they clearly establish Davis' innocence. I would be amazed if the court ruled that the affidavits establish Davis' innocence ... they establish nothing ... in 1991 these people testified, under penalties of perjury, that Davis was the shooter ... ten years later they change their stories ... the jury found their trial testimony credible ... end of story imo.