Wednesday, September 21, 2011

Three Eleventh-Hour Reprieves

Minutes before Troy Davis was scheduled to die, the United States Supreme Court intervened to at least temporarily halt his execution in order to give it time to consider his latest appeal.  Incredible! 

I am all too familiar with the gut-churning emotional roller coaster of eleventh-hour stays.  From my own experience as a lawyer fighting executions, I know that every minute of life beyond the time one's client's death is scheduled to occur is a victory.  I also know how brutal, exhausting and torturous it is to be pulled back from the brink without any uncertainty as to what is going to happen next.  What Troy Davis has had to endure should not be experienced by anyone in a civilized country.

This marks the third time in a week that the high court has stepped in to stop an imminent execution after state authorities refused to do so -- all in cases in which they previously denied review.

Last Thursday, Duane Buck came within hours of being executed by the State of Texas when the Court issued a stay to determine whether to review the claims Buck's counsel presented (including whether a defendant’s race may ever be used as a basis for the death penalty and whether the prosecution may rely on the defendant’s race as evidence that he would commit criminal acts of violence in the future).

Yesterday, Cleve Foster (who was sentenced to death despite being tried as an accomplice), was hours away from his execution, also in Texas, when the Supreme Court granted a stay to consider claims involving the ineffective assistance of his state post-conviction counsel, who failed to competently investigate and present claims of his innocence and the poor performance of his trial lawyer.

(But don't think the Court has gone completely soft.  It did not act to stop tonight's execution of Lawrence Brewer.)

While Troy Davis has garnered an unusual amount of publicity and attention -- and for good reason given the serious doubts as to his guilt -- the issues these cases bring are all too common in death penalty cases:  innocence, arbitrariness, incompetent and under-funded lawyers, and racism.  So why all of a sudden is the Supreme Court issuing stays -- even if they may only be temporary?

What motivates each of the justices on the Supreme Court is impossible to know, and it is folly to speculate what is going on in their chambers.  But with three last minute orders in a week it sure seems like the Court is frustrated with the level of review these cases are getting in the lower courts and by the parole boards.

Ultimately, the Supreme Court may reject the claims in any and all of these cases and the executions would then go forward.  But it surely is fascinating that at least a majority of the Court seems concerned enough to take a closer look.


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