Sunday, September 18, 2011

Spare the Life of Troy Davis

As much as I’ve decided to eschew politics on this blog, I have to weigh in on an issue that some might describe as political. I don’t see it that way; I see it as a simple moral issue. Then again, I’ve been inalterably opposed to the death penalty all my life; it’s never been about liberal or conservative values – just human values.

Anyway, even if you don’t reflexively oppose the death penalty like I do the case of Troy Davis, scheduled to die by lethal injection in Georgia on September 21, should give you pause. If you don’t know Davis’ story, here’s the back ground. And note that this comes from none other than William Sessions, former director of the FBI. Not exactly a faint-hearted, weak-kneed liberal. Anyway, Mr. Sessions describes the Troy Davis case this way:

As Troy Davis faces his fourth execution date on Sept. 21, many may assume that lingering doubts about the case have been resolved. This is far from true, and the Georgia Board of Pardons and Paroles — which has several new members since the Davis case last crossed its desks — has the daunting task of reviewing one of the most controversial cases the state has ever seen.

What quickly will become apparent is that serious questions about Davis’ guilt, highlighted by witness recantations, allegations of police coercion and a lack of relevant physical evidence, continue to plague his conviction. Last summer, an extraordinary hearing ordered by the U.S. Supreme Court to answer these questions instead left us with more doubt.

At Davis’ evidentiary hearing, witnesses called by Davis recanted trial testimony and made allegations of police pressure. Others testified that an alternative suspect had confessed to them that he committed the crime. One eyewitness testified, for the first time, that he saw this other suspect, a relative of his, commit the crime. Police witnesses for the state of Georgia alternatively asserted that the original trial testimony was the true version of events and that it was elicited without coercion.

Some of these same witnesses also had testified at Davis’ trial but have since recanted their trial testimony. The judge at the evidentiary hearing found their recantations to be unreliable and, therefore, found Davis was unable to “clearly establish” his innocence. The problem is that the testimony of these same witnesses, whom the judge had determined were less believable, had been essential to the original conviction and death sentence.

As a lawyer, this is extremely disheartening. The issue here is not whether Mr. Davis should be set free or whether his conviction should be thrown out, but whether the state of Georgia should be permitted to go forward with his execution in the face of serious doubts as to his guilt or innocence. Logic would dictate that in such a case, at a bare minimum, his death sentence should be vacated or commuted; better to let the man live so that those doubts can be cleared up than to kill him without resolving those doubts, right? Apparently, however, the courts could not provide a legal remedy to Mr. Davis because he, the condemned man himself, “was unable to ‘clearly establish’ his innocence” at last year’s Supreme-Court-ordered hearing to review his sentence. Perhaps the court applied the correct legal standard in the context of that hearing (I’m no expert in the field), but if so that tells you that the legal system has clearly broken down. If our courts cannot set aside a death sentence when the defendant’s guilt is clearly in doubt, we need to rethink our approach to these cases.

There is, however, one last avenue for relief. As Mr. Sessions says, the Georgia Board of Pardons and Paroles will meet tomorrow, September 19, to consider granting Mr. Davis executive clemency:

In 2007, the Georgia State Board of Pardons and Paroles issued a stay of execution for Davis and took the admirable position that it would “not allow an execution to proceed in this State unless and until its members are convinced that there is no doubt as to the guilt of the accused.”

Because this case continues to be permeated by doubt, the Board of Pardons and Paroles’ stance continues to be the right one. In reality, there will always be cases, including capital cases, in which doubts about guilt cannot be erased to an acceptable level of certainty. The Davis case is one of these, and it is for cases like this that executive clemency exists.

Those responsible for clemency play a vital role in ensuring our legal system includes a measure of compassion and humanity. The death penalty should not be carried out, and Davis’ sentence should be commuted to life.

That is absolutely correct, as my friend and local writer Emily L. Hauser has been arguing for days now. See her posts here, here, here, and here, with multiple links to online petitions and contact information of various state officials so that you can add your voice to the thousands who have urged the state of Georgia to reconsider the execution of Troy Davis. Please also take a moment to read Emily’s outstanding piece in The Atlantic called “Explaining the Death Penalty to my Children.” It’s one of the most cogent things I’ve read on the subject. I also highly recommend Karoli’s excellent piece, “A Letter to Georgia: Do Not Come What You Loathe,” from the perspective of someone whose family has endured a murder but who still opposes Mr. Davis’ execution. Really moving stuff.

But even apart from Troy Davis’ case, let me reiterate that I am opposed to the death penalty in all cases. I know that view isn’t shared by the majority of Americans, but so be it. It is my view and always has been. I make no apologies for it.

So I’ll leave you with the words of the late Supreme Court Justice Thurgood Marshall from his concurring opinion in Furman v. Georgia, 408 U.S. 238, 371 (1972), a case that struck down the death penalty as it was then imposed in the state of Georgia and elsewhere throughout the United States:

At a time in our history when the streets of the Nation’s cities inspire fear and despair, rather than pride and hope, it is difficult to maintain objectivity and concern for our fellow citizens. But, the measure of a country’s greatness is its ability to retain compassion in time of crisis. No nation in the recorded history of man has a greater tradition of revering justice and fair treatment for all its citizens in times of turmoil, confusion, and tension than ours. This is a country which stands tallest in troubled times, a country that clings to fundamental principles, cherishes its constitutional heritage, and rejects simple solutions that compromise the values that lie at the roots of our democratic system.

In striking down capital punishment, this Court does not malign our system of government. On the contrary, it pays homage to it. Only in a free society could right triumph in difficult times, and could civilization record its magnificent advancement. In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute. We achieve “a major milestone in the long road up from barbarism” and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment.

Unfortunately, Justice Marshall’s optimism was short lived. Just four years later, in Gregg v. Georgia, 428 U.S. 153 (1976), the Supreme Court reinstated the death penalty, subject to certain procedural controls. Nonetheless, I believe Justice Marshall had it exactly right. We are better than the death penalty.


  1. I don't consider this political, either. Thank you for spreading the word on Troy Davis. I really hope all the attention the case has garnered will make a difference in the clemency meeting tomorrow.

  2. I have been back and forth on the death penalty over the years. In college, I felt as you do. As I got older and the crimes got worse, I began to wonder if it weren't justified in some extreme cases. But as I get still older, I'm concluding that I was right the first time.

    It is as wrong for the state to kill a man as it is for a man to kill a man, and the reason isn't what you'd think. We will all die; death itself isn't the issue. The issue is the effect on the killer of arrogating to oneself the right to kill. It is corruptive, as is all power.

    The second major reason the state shouldn't kill is that our justice system isn't anything like as even-handed and accurate as we pretend it is; just review the files of the Innocence Project for that one! In Troy Davis' case the doubt of his guilt goes way beyond the "reasonable doubt" that should have prevented him from being convicted in the first place - if the justice system were as even-handed and accurate as we pretend it is...

  3. Excellent piece, Dave. Thurgood Marshall was correct in Furman and he is still correct today.