Wednesday, September 7, 2011

And Justice For Troy Davis

Georgia is planning to execute Troy Davis on September 21st.  With all legal avenues for relief apparently exhausted, clemency is his last hope.  The Georgia Board of Pardons and Paroles denied a clemency plea once before but that doesn't mean it shouldn't be lobbied heavily to reconsider.  Below is the piece I wrote after the U.S. Supreme Court rejected Troy's final appeals.  Here is a link to the NAACP website which is heading a campaign to Help Save Troy Davis.

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Finality Trumps Justice 

 (Originally posted, March 29, 2011.)

The overarching principle guiding death penalty cases is the need for finality, not fairness and not justice.  Supreme Court Justice Anthony Kennedy asserted in 1998 that "only with an assurance of real finality can the state execute its moral judgment.  Only with real finality can the victims of crime move forward knowing the moral judgment will be carried out."  Kennedy wrote those words in an opinion that overturned a federal court of appeal decision that had granted a new trial to my client.  Less than three months later, my client was executed despite what were serious questions about whether he had committed capital murder.  Tragically, the facts we discovered that cast doubt on his guilt were deemed too little, too late.  Although we had gathered evidence which undermined the prosecution's case, we were never permitted to present it at a hearing because we could not overcome the nearly insurmountable procedural hurdles put up by the courts.

Which brings us to Troy Davis and the rejection yesterday by the United States Supreme Court of his final appeals despite the lack of any physical evidence tying Davis to the murder, despite recantations from nearly all of the prosecution witnesses who claimed to have witnessed the shooting, and despite testimony that the prosecution's key witness confessed to the murder.

Troy Davis was convicted and sentenced to death by a Georgia jury in 1991 for the murder of an off-duty police officer.  The prosecution's case was based on eye-witness testimony.  However, 7 of the 9 non-police witnesses for the prosecution recanted their testimony, many asserting that their original testimony was coerced by the police.  Three other witnesses claimed another man had admitted to the murder.  In 2009, after both state and federal courts rejected Davis' claim of innocence on procedural  grounds (finding that Davis should have obtained and presented this evidence earlier), the Supreme Court issued a highly unusual order, requiring the federal district court in Georgia to "receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis'] innocence."

U.S. District Judge William T. Moore, Jr., heard testimony from the witnesses who claimed they had falsely incriminated Davis, as well as from witnesses who claimed another man, Redd Coles, a key prosecution witness, admitted to committing the murder.  Judge Moore, however, was not convinced by the recantations and he gave no weight to Coles' confession because Davis' lawyers had been unable to successfully subpoena Coles and put him on the stand.  Judge Moore concluded:  "while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors."

In Troy Davis' case, the defense accomplished the rare feat of actually getting their evidence heard, but they still were confronted with having to prove their client was "clearly innocent" -- not just that there were doubts as to his guilt -- without the myriad tools the prosecution and law enforcement wielded to prove Davis committed the murder 20 years earlier.  Yesterday, the Supreme Court, without dissent, rejected Davis' appeals from Judge Moore's ruling.

As Laura Moye of Amnesty International said after the Supreme Court's ruling, "It appears that the justice system is comfortable allowing someone to be executed when there are lingering doubts about guilt in the case."  With the growing number of exonerations continuing to shed light on the many flaws in the system, including those that convicted Troy Davis, we should be very uncomfortable with valuing finality over all else and tolerating executions in the face of new evidence that raises doubt as to guilt.

Fortunately, for the moment, Georgia can't execute Troy Davis even if it wanted to.  Earlier this month, the DEA seized Georgia's supply of thiopental, one of the drugs they need to carry out executions by lethal injection.  While the federal government is investigating how the state acquired their drug supply, the Georgia Pardons and Parole Board will have the opportunity to decide whether to commute Davis' sentence.  Parole boards are not constrained by the legal doctrines that place such substantial barriers to obtaining relief in court, but are designed to act as a fail safe in cases where the justice system is unable to reach a fair and just result.  This is one of those cases.


Mark A said...

Thanks for posting this. Too many people have not read the statements by the witnesses. The witness statements are available at

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