Barr Is Right, But So Very Wrong
Bob Barr, the man who shut the doors to the courthouse on defendants for whom the system failed, says nobody understood him. From his New York Times op-ed in which Barr, no enemy of the death penalty, argues to spare the life of Troy Davis.
But now that a man whose guilt is in serious doubt is about to be put to death, you've suddenly discovered that your law, so manly and firm in its end of "the unfounded and abusive delays" in court proceedings designed to make sure that only the guilty, the unquestionably guilty, the absolutely positively guilty, are executed. A bit disingenuous in light of the fact that your law left out any mention of allowing defendants who are "actually innocent" from coming back when his evidence or counsel improves.
The problem with Bob Barr's epiphany is that I don't, for a moment, believe that he would have done anything different in supporting his beloved law had someone argued that it would result in the execution of innocent people. There would be no sympathy, but hot rhetoric about abuse of the system by filthy murderers who feign innocence when we all know that they are guilty as sin. He would have shrugged it off as a casualty of war at worst. He would have pulled the switch on Troy Davis himself.
Using post hoc belief of innocence to cover the law's inflexibility, and claim it was never intended to work that way, is palliative nonsense. Barr can claim to be the good guy, supporting Troy Davis, when he was the same congressman responsible for Davis' plight. Now he blames the courts for following his law? It's not that the courts shouldn't be capable of finding a viable way around this misbegotten law, but that of all people in the country to have no standing to complain, Bob Barr is at the head of the line.
The message behind Barr's conversion to sanity is that these are the views of the very people who are entrusted with crafting the procedures that seek to deny justice, claiming afterward that it wasn't their intention. Well, wasn't it your job to make sure the law you passed reflected your intention? Your newfound claim that your law is a monument to cavalier and clueless legislating hardly provides us with faith in your ability to serve.
Bob Barr now asks the Supreme Court to take the "activist" position of ignoring his law based on unintended consequences and rewriting it to prevent a single case of injustice, because Barr agrees that the execution of Troy Davis would be terribly wrong. Sorry Bob, but while you are absolutely correct that Davis should not be executed, he's just the one who found his way onto your radar. Your law still shuts the door on thousands of other innocent men and women who might have a chance to find redress but for you.
It's good that Bob Barr had his epiphany. Too bad they never seem to get religion while they still have the power to do something about it. Funny how that works.
This threat of injustice has come about because the lower courts have misread the Anti-Terrorism and Effective Death Penalty Act of 1996, a law I helped write when I was in Congress. As a member of the House Judiciary Committee in the 1990s, I wanted to stop the unfounded and abusive delays in capital cases that tend to undermine our criminal justice system.Nothing? Try everything. Try that's precisely what your beloved law does when an convicted man who claims actual innocence comes late to the party or gets smacked by the court on the first go-round and has to try for a second bite of the apple to show his innocence. That's what your law says and does, Bob. Didn't you read it?
With the effective death penalty act, Congress limited the number of habeas corpus petitions that a defendant could file, and set a time after which those petitions could no longer be filed. But nothing in the statute should have left the courts with the impression that they were barred from hearing claims of actual innocence like Troy Davis’s.
But now that a man whose guilt is in serious doubt is about to be put to death, you've suddenly discovered that your law, so manly and firm in its end of "the unfounded and abusive delays" in court proceedings designed to make sure that only the guilty, the unquestionably guilty, the absolutely positively guilty, are executed. A bit disingenuous in light of the fact that your law left out any mention of allowing defendants who are "actually innocent" from coming back when his evidence or counsel improves.
The problem with Bob Barr's epiphany is that I don't, for a moment, believe that he would have done anything different in supporting his beloved law had someone argued that it would result in the execution of innocent people. There would be no sympathy, but hot rhetoric about abuse of the system by filthy murderers who feign innocence when we all know that they are guilty as sin. He would have shrugged it off as a casualty of war at worst. He would have pulled the switch on Troy Davis himself.
Using post hoc belief of innocence to cover the law's inflexibility, and claim it was never intended to work that way, is palliative nonsense. Barr can claim to be the good guy, supporting Troy Davis, when he was the same congressman responsible for Davis' plight. Now he blames the courts for following his law? It's not that the courts shouldn't be capable of finding a viable way around this misbegotten law, but that of all people in the country to have no standing to complain, Bob Barr is at the head of the line.
The message behind Barr's conversion to sanity is that these are the views of the very people who are entrusted with crafting the procedures that seek to deny justice, claiming afterward that it wasn't their intention. Well, wasn't it your job to make sure the law you passed reflected your intention? Your newfound claim that your law is a monument to cavalier and clueless legislating hardly provides us with faith in your ability to serve.
Bob Barr now asks the Supreme Court to take the "activist" position of ignoring his law based on unintended consequences and rewriting it to prevent a single case of injustice, because Barr agrees that the execution of Troy Davis would be terribly wrong. Sorry Bob, but while you are absolutely correct that Davis should not be executed, he's just the one who found his way onto your radar. Your law still shuts the door on thousands of other innocent men and women who might have a chance to find redress but for you.
It's good that Bob Barr had his epiphany. Too bad they never seem to get religion while they still have the power to do something about it. Funny how that works.
"Only a hearing where witnesses are subject to cross examination will put this case to rest."
So says Bob Barr. Obviously, he's never done a cross examination as a criminal defense lawyer.
There's nothing talismanic about cross examination. Witnesses who are experienced and highly motivated, like police officers, can usually hold up pretty well even when they are lying or mistaken. Lots of innocent people are convicted when there's been all kinds of cross examination.
The same double standard applies as in everything else with respect to criminal trials. The "People" are presumed to be more objective and disinterested; the Defendant is tagged as an interested party who is "trying to get out of it", and the evidence, including cross examination, is viewed accordingly.
A criminal defense lawyer can do a devastating job on cross examination and succeed only in convincing a jury that he's too clever and "tricky". You can win a battle with a witness but lose the credibility war with the jury, where you always start out in a deep hole and are vastly outgunned at every stage.
The AEDPA was a terrible bit of legislation to be sure, but the problems in the system run far deeper.
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An excellent point. Say Barr gets what he says he wants, what then? We have due process but Troy Davis can't prove his innocence (does Barr realize that?), but only cast doubt on his guilt. Not quite enough given the status of the proceedings. Will Barr then pull the switch on Troy Davis, knowing that he's received due process and still subject to execution?
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To correct an injustice you have to know from where the injustice is coming from. Is it congress or the judicial system that is broken? Well okay both are but the fault should be directed towards the courts and their rules. Prior to this 1996 legislation, were only the guilty...found guilty? No innocent people were wrongfully convicted prior to 1996?
And let's be real the attorneys assisting the defendant should have some blame too.
Where are the checks and balances??? Can we really blame the "imbalance" on Bob Barr???
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When Bob Barr writes the op-ed complaining about the consequences of the bill he sponsored, Bob Barr is responsible. He's not responsible for all that's wrong with the system; just his contribution.
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Sure he is "responsible" if he knew that there truly wasn't a system of checks and balances. Who knew that there wasn't!!!!!! Obviously, he did.
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Glad to see you've come around. It's the responsibility of the fellow sponsoring a law to consider its unintended consequences. It's irresponsible to enact a law and later complain that someone else didn't bail you out of your screw up.
And, FYI, the use of more than 3 exclamation marks at the end of the sentence is a clinical indicator of borderline personality disorder.
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just borderline? I'm so across that border! (I mean "we" are across that border, all three of us.
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One thing I'll say for Texans is that they always have a great sense of humor. You are Texan, right?
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Worse, I was born on the "left-coast"! LOL
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Well that changes everything!!! (note 3, no more)
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