Since 1989, 273 people have been exonerated post-conviction in the United States through DNA evidence; including seventeen people who were executed before DNA was able to prove their innocence. While DNA testing has undeniably been a silver bullet in exonerating those who were not guilty, only about 10% of criminal cases actually have DNA evidence. Furthermore, not all states allow for or severely limit post-conviction exoneration through DNA testing. This leaves individuals seeking to assert post-conviction claims of innocence without the aid of DNA evidence in an intractable legal situation.

Troy Davis, who was executed in September 2011 for the murder of off-duty police officer Mark Allen MacPhail, found himself in just that position, lacking any DNA evidence to prove his innocence. Instead, the conviction was based on nine eyewitness reports, seven of which were later recanted citing police intimidation and coercion. In addition, the prosecution had no forensic evidence and no murder weapon. Yet Davis’s post-conviction challenges in state court, his habeas corpus petition in federal court, and his petition for a Writ of Certiorari to the Supreme Court were all denied.

The Supreme Court has failed to establish a clear path for proving post-conviction innocence when it comes to capital punishment cases.  In Herrera v. Collins, a case involving a post-conviction claim of innocence, the Court focused on defending procedure, yet expressed discomfort in dicta with the U.S. Constitution allowing the execution of an innocent person. The majority in Herrera ultimately found that “a claim of ‘actual innocence’ is not itself a constitutional claim” and that such claims have a “very disruptive effect” on the justice system. The disagreement within the Court in Herrera and the subsequent conflicting jurisprudence about post-conviction claims of innocence, has led to a general state of confusion in the law.

Despite this confusion, Troy Davis filed a successful original writ petition and his case was moved to the Southern District Court of Georgia under the “actual innocence” exception. This exception allows a federal court to hear the merits of successive claims if the failure to hear the claims would constitute a “miscarriage of justice”and was adopted in order to effectuate the intent of Congress that federal habeas review should be granted when the ends of justice so require. However, the Supreme Court has failed to establish when innocence is just a gateway through which a habeas petition must pass and when it can be brought under the miscarriage of justice exception. Moreover, courts have employed different approaches to applying the “actual innocence” standard in determining whether post-conviction claims should be heard. While some courts balance the evidence of innocence against the reliability of the state’s verdict, others apply the “extraordinarily high” burden of proof standard established by the Supreme Court in Herrera.

While Davis’s claim is the first innocence claim to ever pass the hypothetical “extraordinarily high” threshold assumed to exist in Herrera, the language of In re Davis, provides that the district court must determine whether evidence “that could not have been obtained at the time of the trial clearly establishes petitioner’s innocence”. The Georgia Federal Judge who reexamined Davis’s case after it was sent to the District court ruled that the recantations by key witnesses “cast some additional, minimal doubt on his conviction,” but were not sufficient for a new trial.” According to the Judge, while doubt existed, “ absent a truly persuasive showing of innocence” setting aside the jury verdict would “wreck complete havoc on the criminal justice system.”

Essentially, without DNA evidence, individuals are stuck in a Catch-22; if the conviction was based on faulty evidence, the reviewing court defers to the discretion of the jury verdict based on the faulty evidence to determine whether a defendant could be innocent. In a striking illustration of this point, the Supreme Court refused to hear the appeals of thirty of the thirty-one individuals who were subsequently exonerated by DNA evidence by 2007. If DNA testing has taught us anything, it is that the criminal justice system is extraordinarily fallible. This problem extends far beyond Troy Davis: if 273 people have been exonerated using DNA evidence after being convicted beyond a reasonable doubt, one might reasonable infer from a statistical perspective that there are many other innocent individuals among the 90% who lack DNA evidence.

This trend seems to conflict with the Supreme Court’s own finding in Sawyer v. Smith that the “Eighth Amendment protects against the risk that the death penalty would be imposed in an arbitrary or capricious manner.” A poignant example of this arbitrariness is the case of Marcus Ray Johnson who was due to be executed in the same chamber as Davis just two weeks later because his writ of certiorari was denied by the Supreme Court, but unlike Davis, was granted a stay by a Georgia court in order to investigate new DNA evidence. The Due Process Clause of the Fourteenth Amendment, states “nor shall any State deprive any person of life, liberty, or property, without due process of law . . . ” Surely, the procedural equality under the Due Process Clause is most important when it comes to the States most severe deprivation, life, but with extremely high and undefined standards for post-conviction exoneration in capital punishment, the justice system is failing.