This may be yet another example of tilting at windmills, but so be it. Earlier this morning I e-mailed Judge Penny Haas Freesemann of the Eastern Judicial Circuit of Georgia in Chatham County, who, according to Chatham County District Attorney Larry Chisolm, would decide any petition to withdraw the death warrant in Troy Davis’ case. The text of my letter follows:
Dear Judge Freesemann,
I know you are inundated with e-mails today, and I do not know whether you are, in fact, in a position to act with regard to the death warrant in Troy Davis’ case. Nonetheless, as an attorney with 24 years’ experience here in Illinois, I feel compelled to correspond with you in an effort to promote what I see as our cardinal ethical obligation as legal professionals: To protect and defend the integrity of the legal system and to promote respect for the rule of law.
I will not belabor the facts you already know. From the multiple recantations of key witnesses to the lack of physical evidence tying Mr. Davis to the murder of Officer McPhail, the underlying case against him is riddled with doubt. In his concurring opinion in the Supreme Court’s 2009 order transferring Mr. Davis’ habeas corpus petition to the U.S. District Court for the Southern District of Georgia, Justice Stevens noted that “it ‘would be an atrocious violation of our Constitution and the principles upon which it is based’ to execute an innocent person,” quoting In re Davis, 565 F. 3d 810, 830 (11th Cir. 2009) (Barkett, J., dissenting). In re Troy Anthony Davis, No. 08-1443 (U.S. Sup. Ct. Aug. 17, 2009), slip op. at 2. And while the District Court ultimately found that Mr. Davis failed to “clearly establish[ ] [his] innocence” in accordance with the Supreme Court’s order (see id., at 1), the doubts that persist with respect to his guilt or innocence leave open the very grave possibility that if the execution occurs today, the State of Georgia will be committing just such an atrocious violation of our Constitution.
Moreover, whether or not Mr. Davis’ execution is technically legal, whether or not he has been afforded his due process rights in some technical legal sense, going forward with the execution in the present circumstances will undoubtedly weaken respect for the law and the legal system throughout our country. How can we, as lawyers and judges, expect ordinary Americans to accept the fact that a potentially innocent man has been executed ... but at least the courts jumped through all the right hoops before executing him? To the public, the glaring fact remains: The legal system failed to satisfy the most basic principle ensconced in our Constitution – that the government should not be able to take a person’s life unless his guilt is established beyond a reasonable doubt. The public will not take solace in legal technicalities, and as a lawyer I do not take solace in them either.
So far, the legal system has failed to provide a remedy to Mr. Davis, and that failure weakens the legal system itself and promotes disrespect for the rule of law. If you have the power to prevent this execution from going forward, I strongly urge you to exercise that power – not only for Mr. Davis’ sake, but for the sake of the legal system. You may well have the power to save the life of a potentially innocent man and to restore faith in the law with the stroke of a pen. By doing so, you would demonstrate to the public that the law cares more for substance than procedure, that legal technicalities cannot stand in the way of vindicating our core constitutional values.
I sincerely hope you will consider whatever options are available to you.
Kind regards and with the utmost respect,
Elsewhere, the AP reports that Davis’ attorneys plan to file one last appeal today:
Davis’ lawyers drew up a late appeal asking a local judge to block the execution over evidence they object to. Defense attorney Brian Kammer told The Associated Press he would file the appeal in Superior Court in Butts County, home of the state’s death row, when it opens Wednesday.
(Via Think Progess on Twitter.)
Needless to say, that appeal is a long shot, as are requests to either the District Attorney or Judge Freesemann to withdraw the death warrant. Long shots, but not necessarily impossible …