Via Doug Berman, the 11th Circuit has rejected Troy Davis’ attempt to raise the issue of actual innocence in a second habeas. While the lengthy per curiam decision mentions the usual suspects, Davis’ prior state appeals and efforts to avoid the executioner, the core of the decision clearly presents the most troubling aspect of the court’s love of procedure as an end in itself.
Indeed, a common theme found throughout the congressional debates was the desire to prevent habeas petitioners from having successive “bites at the apple.” See 141 Cong. Rec. S7803, S7877 (1995) (statement of Sen. Dole) (“By imposing filing deadlines on all death row inmates, and by limiting condemned killers convicted in State or Federal court to one Federal habeas petition — one bite of the apple — these landmark reforms will go a long, long way to streamline the lengthy appeals process . . . .”); 141 Cong. Rec. S16892, S16913 (1995) (statement of Sen. Feinstein) (“[T]his bill provides habeas petitioners with ‘one bite at the apple.’ It assures that no one convicted of a capital crime will be barred from seeking habeas relief in Federal court[.]”); 141 Cong. Rec. S7803, S7809 (1995) (statement of Sen. Kennedy) (“The proposal to limit inmates to one bite at the apple is sound in principle.”); 141 Cong. Rec. S7803, S7832 (1995) (statement of Sen. Biden) (“The vast majority of us . . . want to and have been trying for years to change the old system to limit the time in which a petition can be filed and to limit the number of petitions that can be filed. So essentially you get one bite out of the apple.”).
In other words, we just weren’t putting people to death fast enough to please the politicians. Streamlining the process became more important than certainty of guilt. Note the use of the words “certainty of guilt,” rather than certainty of innocence, which is the prerequisite enjoyed by the court in considering the merit of a defendant’s petition.
Once convicted and sentenced to death, it’s not enough to show that there is a good chance that a verdict of guilt was wrong. After the word “guilty” is uttered, the world turns on its head and the defendant is guilty. Why? Because juries are presumed infallible, and only the heaviest of burdens met can overcome that presumption in a criminal case. Oddly, civil juries are far dumber than criminal, as they are reversed all the time, not to mention widely ridiculed for their silly and erroneous decisions. If only civil jurors were as smart as criminal jurors. But I digress.
The problem isn’t whether Troy Davis’ indictment should be tossed, freed from bondage and given a heartfelt apology. The problem is that Troy Davis is going to be executed. Death is different.
It would be one thing if the court has concluded that upon a full review of the submissions and arguments, it could conclusively state that Troy Davis was guilty and that nothing raised, nothing argued, gave anyone pause to question that conclusion. But that wasn’t what happened. Instead, the court concluded that Davis had failed to conclusively prove his innocence. This leaves a huge gap between the certainty of guilt and the uncertainty of innocence. Absent that certainty of guilt, death is not the solution.
While I, as opposed to others, am not of the view that capital punishment is the answer to anything, it remains the cure for those jurisdictions that just like a good killing. I can’t change that, at least not here or now. But when the best answer we can get out of a court is that a death row inmate hasn’t conclusively proven his actual innocence before letting the executioner earn his paycheck, it’s just not nearly good enough.
One bite of the apple is a favorite expression, a rhetorical device for those who take comfort in clichés when hard thought seems too painful. “Streamlining” is a positive buzzword, enjoyed by politicians and businessfolk alike, as it suggests doing things quicker and more efficiently. It puts a smiley face on the death penalty, surrounding it in the language of positives that makes it more palatable for the masses. This rush to execute stemmed from the perception that it took just too darned long to put someone to death.
When it comes to executions, what’s wrong with being so absolutely certain, so definitively clear, that the person being killed is the killer? What’s the rush? Death is different. There are no do-overs.