Charles Dickens’ Mr. Bumble had harsh words for the law in the context of marital rights: “If the law supposes that… the law is a [sic] ass—a idiot.” Every once in a while, however, in spite of itself, the law produces justice. When this happens the public should rejoice and some jurists wonder what went wrong.
Take the case of Troy Davis, a death row Georgia inmate. Mr. Davis was convicted in 1991 for the 1989 murder of a Savannah police officer. During the years following his conviction, the case against Mr. Davis came apart. Although there was no murder weapon found, no fingerprint evidence, no DNA, in short, no physical proof of guilt with the defendant insisting on his innocence, a jury found him guilty and he was sentenced to die. The conviction was based exclusively on testimony of nine witnesses who implicated Mr. Davis in the crime. During the past years, seven of the nine witnesses recanted their testimony, claiming pressure and intimidation by the police to coerce the testimony. Other exculpatory evidence has been brought forth; there is, moreover, some showing that one of the witnesses has been shown to be a more likely suspect in the officer’s killing.
It seems reasonable to assume that the law would allow Mr. Davis an evidentiary hearing to determine whether there were rounds for a new trial. No one has asked for him to be released – just a chance to get a hearing to see if he should get a new trial. Not on some arcane technicality but on the ground that he was possibly innocent.
An appeal was taken to the Georgia Supreme Court, Mr. Davis being represented by an acknowledged over-burdened and under-staffed Georgia Resource Center, centering on allegations of discriminatory jury selection issues. Nothing about recanting witnesses, exculpatory evidence or possible police misconduct was brought to the state Supreme Court. Why? The statement of the person in charge of the appeal submitted an affidavit stating, in part:
“The work conducted on Mr. Davis’ case was akin to triage, where we were simply trying to avert total disaster rather than provide any kind of active or effective representation… There were numerous witnesses that we knew should have been interviewed, but lacked the resources to do so.”
Whatever the reason, the Georgia Supreme Court affirmed the conviction and sentence, finding that there were no procedural flaws in the original trial and that “it was fair”. Later appeals were processed through the Georgia courts and were denied, all without consideration of the witness and misconduct allegations.
Mr. Davis’ attorneys, now augmented by the Innocence Project organization, began a series of habeas corpus procedures through the Federal Courts, presenting all of the evidence that had either been unavailable during the original trial or had been newly discovered. By now, the United States Congress had passed and President Clinton had signed the Antiterrorism and Effective Death Penalty Act [AEDPA] which was designed to speed up executions by restricting the power of Federal judges to review state orders. The public, according to the prevailing view at the time, and now for that matter, was so exasperated by the delay in enforcing the death penalty, that actual innocence might not be enough to overturn a state conviction.
Up and down the Federal court system, all courts essentially ruled that, by law, even if there were a very clear possibility that Troy Davis did not kill anyone, nothing could be done to stop his execution.
Then, in 2008, armed with affidavits and an exhaustive compilation of materials that showed even more proof of innocence, Mr. Davis now represented by volunteer attorneys with vast experience in death cases, began a second set of habeas corpus proceedings in the Federal courts. In a split decision, the Eleventh Circuit denied the petition, the majority holding that the law did not permit any consideration of innocence; as long as the initial trial was procedurally fair, that was it. The dissenting Judge felt otherwise, stating that the statute could not “be applied when to do so would offend the Constitution and the fundamental concept of justice that an innocent man should not be executed.”
And then, again, to the United States Supreme Court where an extraordinary thing happened. That Court, in the past week, ordered that a Federal District Court should hold an evidentiary hearing to look into the evidence that was being presented. This bit of common sense justice was strongly opposed by Antonin Scalia and Clarence Thomas who wrote that allowing a review would “serve no purpose except to delay the state’s execution of its lawful criminal judgment.”
Then the dissent made a statement that should horrify any person with a modicum of responsibility,
“This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”
Alan Dershowitz suggests the following parable:
If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”
In the past 25 years, it has been reported that over 135 death row inmates have been exonerated by newly discovered DNA or other evidence. Whatever a person’s view as to the death penalty, trials are conducted by humans and humans are capable of mistakes; we are all fallible. Allowing Troy Davis a chance to establish that the correct defendant is being punished is fair, reasonable and, most important, the only just result. If an innocent person is put to death, he will remain dead even if the truth comes out later.
Justice and common sense
Justices Scalia and Thomas have placed expediency over justice and, if that is not unconstitutional, nothing is.
Tags: appeals, Constitution, death penalty, death row, fair trial, Innocence Project, Troy Davis. Supreme Court
