Death is Final

As a lawyer, I understand the need for finality in the legal process. At some point, a decision needs to be made that the parties can rely on, for better or worse. Further, once made, cases should not usually be subject to reconsideration without sufficient justifiable reason, especially long after the fact.

Yet, when the decision concerns the life or death of a defendant, a different standard should apply. I realize that a convicted criminal may game the system to avoid the death penalty in a "proper case," but a just society should rather err on the side of caution that put an innocent man to death.

As former Judge William Sessions, a proponent of the death penalty, writes at the American Constitutional Society blog, Finality Over Fairness: The Troy Davis Case:

The release of 130 individuals from death row has made clear that the administration of the death penalty is not infallible. When there are important questions about whether someone facing execution is actually guilty, those questions must be examined and resolved before the ultimate punishment is meted out. On Monday, October 6, the U.S. Supreme Court will likely announce its answer to such a question, and its decision literally means life or death for Troy Anthony Davis.

Mr. Davis has been on death row in Georgia for more than 17 years for the murder of a police officer, and related violent crimes. I was the director of the FBI under Presidents Reagan, Bush, and Clinton, and I believe that there is no more serious violent crime than the murder of an off-duty police officer who was putting his life on the line to protect innocent bystanders.

That being said, we must be convinced that the right person has been convicted. Serious questions have been raised about Mr. Davis’s guilt. The murder weapon was never found and other important physical evidence was missing. Key witnesses made inconsistent statements, and seven out of the nine non-police witnesses have now recanted or changed their original testimony, some stating that they had been pressured by the police to implicate Mr. Davis. One of the two witnesses who has not recanted his testimony has now been implicated as the real murderer by two witnesses at trial and four new witnesses. In addition, concerns have been raised about the conduct of the police and prosecutors.

It also appears that the quality of legal representation Mr. Davis received during trial was, by his own laywer's account, seriously deficient. Whle Mr. Davis's case proceeded through the courts, the budget of the Georgia Resource Center stated in an affidavit that, "We were simply trying to avert total disaster rather than provide any kind of active or effective representation."

The courts considering Mr. Davis's case properly administered procedural rules that prevent those courts from considering claims that were not raised at the right time or in the right manner. However, these rules can be too restrictive and can prevent the courts from dispensing justice. Presently, the rules can stop the courts from hearing claims of innocence, such as in Mr. Davis's case. They can prevent the courts from hearing these claims even if the reason they were not properly raised was because of an overburdened lawyer with insufficient resources, such as in Mr. Davis's case. As a result of these procedural obstacles, no court has examined the claims Mr. Davis's current legal team has raised.

I wrote about the Troy Davis case before. See The Quality of Mercy. The Supreme Court is expected to decide whether to hear the case today. According to the Atlanta Journal Constitution, Troy Davis case decision expected by Oct. 6:

When the U.S. Supreme Court meets Monday to decide Troy Anthony Davis’ fate, its nine justices face a fairly straightforward question: Is there sufficient doubt about Davis’ guilt to warrant further scrutiny of his case?

Davis needs four justices to vote “yes.” Otherwise, his execution, halted by the high court less than two hours before it was to be carried out Tuesday evening, will be rescheduled. The court is expected to announce its decision by Oct. 6.

I have always been against the death penalty. When I first was in law school, I spent a summer working in the District Attorney's office. I worked in the appellate division, and I had a special deal with the DA, who agreed that I would never be asked to work on a death penalty case. I wanted to experience working in the criminal law and it was a way for me to hone my writing skills as well. I also learned first hand that the aggressive, win-at-all costs persona of many ADAs could permit a mistaken conviction to occur (especially if defense counsel wasn't too good). Success rates are the be all & end all for ADAs, so acknowledging a wrongful conviction just isn't going to happen without judicial overview.

Whatever side of the death penalty one is on, in a civilized society, no one should someone put to death who is innocent.

As Judge Sessions noted:

Former Chief Justice William Rehnquist once wrote that the judicial system, “like the human beings who administer it, is fallible.” I agree. Especially when it comes to a human life, the courts should always be able to examine claims of innocence.