The impending execution of Troy Davis tests our belief that, for better or worse, our criminal justice system has a soul. We may soon find out that it doesn’t.
In the New York Times, Bob Herbert reminds us of what is at stake.
In the New York Times, Bob Herbert reminds us of what is at stake.
It’s bad enough that we still execute people in the United States. It’s absolutely chilling that we’re willing to do it when we’re not even sure we’ve got the right person in our clutches.
This case tests our love of formality over reality, process over substance. It’s not that Troy Davis has been proven innocent, but that faith in his guilt has been shaken to the core. He may not be guilty. Had this been the case at his trial, one would be compelled to contend that he could not be convicted because guilt was not proven beyond a reasonable doubt.
But as happens too often, the effort to challenge the allegations that Davis murdered Mark Allen MacPhail didn’t start in earnest until after the jury verdict was rendered. At that point, the world turns around and the burden falls on the defendant to prove it wrong. That’s our process, and frankly there’s good reason for the shift in burdens. Jury verdicts must mean something or nothing will ever be resolved and concluded. Closure, both for the benefit of the victim and society, is necessary.
What distinguishes this case isn’t that 7 of 9 witnesses have recanted their testimony that Troy Davis was the shooter. There have been plenty of other cases where witnesses, after the fact, admitted that they lied. Lying on the witness stand is a time-honored tradition on our criminal justice system, which is why we so studiously pretend it doesn’t happen.
The Troy Davis case is distinguished by the fact that, despite the doubt that has been shown, the State of Georgia, the 11th Circuit, the United States Supreme Court, will sit idly by and watch Troy Davis be put to death.
This isn’t just the hand-wringing of someone naturally inclined to give a defendant the benefit of the doubt. There are some others who see things this way whose sympathies are beyond reproach.
But as happens too often, the effort to challenge the allegations that Davis murdered Mark Allen MacPhail didn’t start in earnest until after the jury verdict was rendered. At that point, the world turns around and the burden falls on the defendant to prove it wrong. That’s our process, and frankly there’s good reason for the shift in burdens. Jury verdicts must mean something or nothing will ever be resolved and concluded. Closure, both for the benefit of the victim and society, is necessary.
What distinguishes this case isn’t that 7 of 9 witnesses have recanted their testimony that Troy Davis was the shooter. There have been plenty of other cases where witnesses, after the fact, admitted that they lied. Lying on the witness stand is a time-honored tradition on our criminal justice system, which is why we so studiously pretend it doesn’t happen.
The Troy Davis case is distinguished by the fact that, despite the doubt that has been shown, the State of Georgia, the 11th Circuit, the United States Supreme Court, will sit idly by and watch Troy Davis be put to death.
This isn’t just the hand-wringing of someone naturally inclined to give a defendant the benefit of the doubt. There are some others who see things this way whose sympathies are beyond reproach.
An extraordinary group of 27 former judges and prosecutors joined in an amicus brief in support of the petition. Among those who signed on were William Sessions, the former director of the F.B.I.; Larry Thompson, a U.S. attorney general from 2001-2003; the former Congressman Bob Barr, who was the U.S. attorney for the Northern District of Georgia from 1986-1990; and Rudolph Gerber, who was an Arizona trial and court of appeals judge from 1979-2001.
This is one of those instances where a law enforcement or prosecutorial background is important, since a trench lawyer like me, and a liberal columnist like Herbert, are easily dismissed. It’s hard to put William Sessions in the same pigeonhole.
The number of appeals is often raised as evidence that Troy Davis has received more than his share of due process, with each court rejecting his efforts. It’s true that he can’t complain that they shut the courthouse doors on him, and that he’s had many opportunities to present his argument. But this brings little comfort, as these hearings and arguments have fundamentally missed the heart of the issue in Davis. Using time-honored tradition, the one that places the onus on Davis to prove his innocence, he will lose. If he has 100 chances, he will lose 100 times. Post-conviction proof of innocence, in the absence of DNA, is usually impossible, which is why this became a time-honored tradition.
But no one is asking for the court to cut Davis loose, plus send him a letter of apology. That isn’t the point at all. The point is that Troy Davis, given all that is now known and trying our utmost not to entangle our soul in the line of precedent designed to prevent a conviction from being undone, should not be put to death.
Perhaps the thing that people hate most about the law and lawyers is our inflexibility in understanding when technical procedure, which may guide us well the vast majority of the time, fails under a peculiar set of circumstances. People believe that our system of justice has the capacity, at its core, to be just. Not that it happens, necessarily, but that it can happen. Troy Davis takes this belief to its very edge, the logical extreme as we like to argue.
Will we allow a man whose guilt has been placed in doubt to be put to death? Our soul depends on the answer.
The number of appeals is often raised as evidence that Troy Davis has received more than his share of due process, with each court rejecting his efforts. It’s true that he can’t complain that they shut the courthouse doors on him, and that he’s had many opportunities to present his argument. But this brings little comfort, as these hearings and arguments have fundamentally missed the heart of the issue in Davis. Using time-honored tradition, the one that places the onus on Davis to prove his innocence, he will lose. If he has 100 chances, he will lose 100 times. Post-conviction proof of innocence, in the absence of DNA, is usually impossible, which is why this became a time-honored tradition.
But no one is asking for the court to cut Davis loose, plus send him a letter of apology. That isn’t the point at all. The point is that Troy Davis, given all that is now known and trying our utmost not to entangle our soul in the line of precedent designed to prevent a conviction from being undone, should not be put to death.
Perhaps the thing that people hate most about the law and lawyers is our inflexibility in understanding when technical procedure, which may guide us well the vast majority of the time, fails under a peculiar set of circumstances. People believe that our system of justice has the capacity, at its core, to be just. Not that it happens, necessarily, but that it can happen. Troy Davis takes this belief to its very edge, the logical extreme as we like to argue.
Will we allow a man whose guilt has been placed in doubt to be put to death? Our soul depends on the answer.
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