Thursday, August 20, 2009

The dark side of good news

You likely have seen the news from the other day about the case of Troy Davis, who has been on death row for 18 years after being convicted of killing a cop 20 years ago.

Information that has come out in the time since has cast serious doubt on his guilt. That information includes the fact that seven of nine witnesses have recanted their testimony and the claims of three other witnesses who didn't testify at the trial that someone else (specifically, the state's star witness) was the actual shooter.
The case has attracted worldwide attention, with calls to stop Davis' execution from former President Jimmy Carter, Pope Benedict XVI and Nobel Peace Prize-winner Desmond Tutu,
along with Amnesty International, which called the case an example of seeking "finality over fairness."

What's happened now is that, citing "the substantial risk of putting an innocent man to death," the Supreme Court has ordered a a federal judge in Georgia to hold a new evidentiary hearing.

No matter your feelings on the particular case, this turn of events should please you if, like me, you oppose the death penalty on moral and practical grounds. However, this very ruling also points up a dreadful, shocking, moral hole at the core of how we now deal with capital crimes, one which, it seems to me, adds urgency to the opposition.

As the Court's ruling acknowledged in its order to the lower court, for Davis's petition to succeed, he must be presenting evidence "that could not have been obtained at the time of trial (that) clearly establishes petitioner's innocence." That is the standard.

Consider what that means. First, if after the trial you produce new, previously-unavailable evidence that punches holes in the prosecutor's case and clearly establishes reasonable doubt - but which falls short of affirmatively proving innocence - our court system doesn't care. Even in the presence of reasonable doubt, We're going to kill you.

And what if it does "clearly establish petitioner's innocence?" If that evidence could have been obtained at time of trial, if maybe it was there but you just didn't know about it or if maybe you were the victim of incompetent representation, our court system doesn't care. Even if we know you're innocent, we're going to kill you.

Why? Because, our court system says, we don't want to be bothered dealing with this. Death penalty cases are an annoyance, an inconvenience. We're tired of people filing multiple petitions on a single case as people try to avoid being electrocuted or hanged or poisoned or shot. So we're going to set an extremely high, almost impossible, bar: You really get just one shot, the trial. After that, you want reconsideration? You not only have to produce previously unavailable evidence (not previously unintroduced, previously unavailable), but the burden of proof has shifted to you; it's no longer "innocent until proven guilty," it's now "guilty until proven innocent."

Because after all, you're not a person, you're not a life, you're a docket number. And what has justice got to do with legal philosophy?

Footnote 1: Antonin Scalia, writing in dissent of the Court's ruling, said “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” And he's right - SCOTUS has never held that it's unconstitutional to knowingly execute an innocent person provided certain procedural formalties have been observed. Ponder that for a while.

Footnote 2: In Joni Mitchell's song "Sex Kills," she says she saw a license plate and "It said 'Just Ice'/Is justice just ice?/Governed by greed and lust?/Just the strong doing what they can/And the weak suffering what they must?"

I think the Troy Davis case and the attitude about the death penalty it points up are evidence for the answer being "yes."

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