However,
if the Paroles Board ordered a DNA test on the “bloody” shorts that were not in evidence,
then it DID happen there,
and
no matter what the “official” rules of court procedure say,
I have seen in my personal experience as a lawyer the FBI meeting with Federal Judge during a trial/hearin and presenting the Federal Judge with material not in evidence, all without the knowledge of the defense attorneys.

Sara’s suggestion that I should “… read a little more about how the Court works …”
would not change my direct observation of what really does happen, no matter what the written rules and procedures say.

My fear is that something similar may have happened during the Supreme Court private conference on the Davis case,
which
was unusual in that the vast bulk of cases in which certiorari was denied (hundreds of them) were disposed of on 6 October 2008 without being distributed for private conference.

Respectfully, Tony, you should read a little more about how the Court works before theorizing about what docket entries must mean. They do not indicate a conspiracy here, and I again say that as someone who desperately wishes the court had taken the Davis case and overturned his conviction.

If the Paroles board (which also has private proceedings) ordered, in 2007, a DNA testing of the “bloody” shorts, that would indicate a pattern by the prosecution of presenting material not in evidence to the decision-makers, possibly behind the backs of the defense attorneys,
thus
increasing my worry about the possibility similar actions with respect to the Supreme Court, especially as it set a private conference instead of
either an open oral argument hearing
or (as in the vast majority of cases) merely denying certiorari by routine order.

According to the Supreme Court docket for the Troy Davis case:
“… Sep 23 2008 Application (08A241) granted by the Court. The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is granted pending the disposition of the petition for a writ of certiorari. …”.

As an AP story on live5news.com said on Monday 6 October 2008:
“… There were expectations that the court would render a decision in the case on Monday [6 Oct 2008], but there was none …
Davis’s appeal [actually a petition for certiorari] is not listed on the docket for oral arguments this week.
The most likely date for his case to arise is in a conference by the Supreme Court justices scheduled for Friday [10 Oct 2008] …”.

As the Supreme Court docket showed
“… Oct 6 2008 DISTRIBUTED for Conference of October 10, 2008. …”
that is what happened,
and certiorari was denied on 14 October 2008 after the closed-door private conference.

So,
the Supreme Court could have dealt with the Troy Davis petition in three ways:
1 – it could have on Monday 6 October 2008 have routinely ruled on it (the vast majority of dispositions that day were routine denials).;
2 – it could have ordered oral arguments (open to the public);
3 – it could have (and did) order it distributed to a private conference.

The private conference choice leaves open the possibility that worries me, about material not in evidence being used in making the decision.

The reason the Court didn’t take the case is probably that they did not feel the legal question presented by Davis’ petition was one that compelled their intervention. The Georgia Supreme Court decision was based upon Georgia statutes and Georgia legal precedent primarily, and Davis’ attorneys had a hard time articulating a solid federal constitutional argument for why the GA Supreme Court decided the case incorrectly. State supreme court decisions are only appealable to the U.S. Supreme Court when they implicate a federal constitutional or statutory interest and when they are not supported by an “independent and adequate” ground of state law. I’m not sure the Court believed that the Davis petition presented a strong enough constitutional argument to justify their taking the case, beyond a simple “he’s innocent” argument. Unfortunately they didn’t think that was enough of a reason to hear it.

I don’t agree with their decision to deny certiorari to hear the appeal, but I am pretty confident it was based upon purely legal grounds and not any “secret evidence” that was somehow presented to them.

An Atlanta Journal-Constitution article by Bill Rankin dated 6 Oct 2008 said, about the Troy Davis case:
“… The U.S. Supreme Court … will meet in a private conference on Friday [ 10 October 2008 ] to consider Davis’ appeal …”.

Could material not in evidence have been presented to the Paroles Board and the U.S. Supreme Court in private beyond closed doors?

For example, there have been on the web (web site at http://www.fop9.net and blog comment by markallenmcphail) that said:
“… physical evidence tying Davis to the murder … Bloody “spotted” clothing was removed from Davis’ house after he was named as a suspect. Because of the way Troy was standing above Officer MacPhail when he executed the officer he would have received a faint splatter of blood …”
and
“… There WAS BLOOD on the shorts….. they did do a DNA testing that the Pardon’s and Parole board requested LAST year in 2007 hearing …”
and
“… The blood was so degraded (due to time) and the spots so small that the test “consumed” the sample without results …”.

However, it is my understanding that
the “bloody” shorts were NOT introduced into evidence in the case
and that the shorts belonged to Troy’s mother’s friend and were seized by the police who entered Troy’s mother’s house and took the shorts from her dryer.

The possibility that the “bloody” shorts were considered by the Paroles board “beyond closed doors”,
despite their not being part of evidence of the case, disturbs me,
particularly
when I see that the U.S. Supreme Court held a “private conference”
because
it has been a practice of the FBI to meet with Federal Judges during trials/hearings and to present the Federal Judges with material not in evidence without the knowledge of the defense attorneys.

My worry is that maybe the FBI might have been influenced by the FOP and prosecutors in the Troy Davis case to go to the “private conference” on Friday, 10 October 2008, and then and there present the “bloody” shorts, saying something like:
“These “bloody” shorts clearly show Troy Davis is guilty. They were not admitted only because of technical search and seizure problems. You Justices ought not to grant certiorari for Troy Davis because the “bloody” shorts (even though technically inadmissible) show him to be guilty.”

Since Troy Davis’s defense attorneys would not have been allowed in the “private conference”, they would not have been able to show that the “bloody” shorts were irrelevant (not even being Troy Davis’s shorts).

Since the “bloody” shorts would not have been in evidence, Troy Davis’s defense attorneys would not have been in a position to (and they did not) deal with them in their petition for certiorari,
but
they could have easily dealt with the issue if the issue had been presented to them honestly instead of possibly being sneaked into a “private conference” behind their backs.

Tony Smith

PS – As to the practice of the FBI to meet with Federal Judges during trials/hearings and to present the Federal Judges with material not in evidence without the knowledge of the defense attorneys,
I have seen such in my personal experience as a lawyer.
I should also state that in most cases, such a practice seems to me to further the cause of truth and justice,
but
the possibility that in the Troy Davis case the practice (if in fact used in the U.S. Supreme Court “private conference”) might not only work against truth and justice, but also might result in the killing of an innocent man,
has caused me to speak out now,
especially since
the execution is set for next Monday,
and hearings are now set before the 11th Circuit.

http://www.journeyamerica.wordpress.com

I have called they take your name and city,state that you are in support of Troy Davis.