Shouldn't Innocence Matter?

On August 17, the US Supreme Court ordered a lower federal court in Georgia to conduct a hearing in the case of Troy Anthony Davis. Davis has been on Georgia's death row for 18 years, sentenced to death for the 1989 murder of an off-duty Savannah police officer, Mark Allen MacPhail.

The prosecution's case rested almost entirely on testimony from eyewitnesses, but seven of the nine who testified against Davis at his trial recanted and now say they are not sure who shot MacPhail. Three people now say that another man has confessed to the crime. However, because of strict rules limiting consideration of new evidence, no court has held a hearing on the evidence of Davis' innocence, and he has come within hours of execution.

The Supreme Court directed the lower court to hear testimony and determine "whether evidence that could not have been obtained at the time of trial clearly establishes [Davis'] innocence." This is a welcome result. But the shocking truth is that even if the court concludes that Davis is innocent, that may not be enough to save him from the death chamber.

As Justice Scalia pointed out in dissenting from the Court's order, the Supreme Court has never ruled that it is unconstitutional to execute an innocent person. Many Americans will be surprised to learn that their Constitution might permit such a monstrous result. But when US courts review criminal convictions, they are focused on procedure, not on outcome - on whether the defendant received a fair trial, not whether he is factually guilty or innocent. If the trial was free from serious defects - a sleeping defense lawyer, a biased judge, a prosecutor who suppressed exculpatory evidence - the conviction and sentence will stand.

In 1993, the Supreme Court considered the case of Leonel Herrera, a prisoner on death row in Texas. Herrera produced new evidence tending to show that he was innocent of the crime for which he was sentenced to die, and argued that, since he was innocent, his execution would violate the Constitution. The Court avoided deciding that question, concluding instead that, even assuming that the execution of an innocent person would be unconstitutional, Herrera had not met the "extraordinarily high" threshold to establish such a claim. Herrera was executed a few months later.

A constitution that does not prohibit the execution of innocent people is, to say the least, seriously deficient. And it's not as if an innocent person reaching death row were a hypothetical problem. Since 1973, 135 people in 26 states have been released from death rows because of evidence that they were innocent. Some, like Davis, had come within days of execution. Several others have been executed despite strong evidence of innocence.

It's true that executive clemency can save innocent persons from execution when the courts will not, and some innocent persons on death row have received this form of relief. But in many states, a prisoner's hope of executive clemency can be largely illusory, as governors eyeing re-election are loathe to intervene on behalf of someone convicted of murder. For example, Texas has carried out 441 executions since 1976, including several in which there was serious doubt about the defendant's guilt. In that same period, only one person on Texas' death row has received clemency based on his possible innocence.

Human Rights Watch opposes capital punishment in all cases because of its inherent cruelty and finality, but even death penalty supporters must shudder at the prospect of putting an innocent person to death. Most of the United States' closest allies abolished the death penalty decades ago; in many cases, abolition was prompted in large part by concern about the risk of executing the innocent.

Unfortunately, abolition does not seem imminent in the United States. But for now, Troy Davis will get his day in court. And his case may become the vehicle for the Supreme Court to finally make clear that, in the words of Justice Stevens, it would be "an atrocious violation of our Constitution and the principles upon which it is based" to execute an innocent person.

 

 

Comments

[northstar11]

a persons right to life precedes the constitution , the supreme court and scalias presence on the court

i think a persons right to life goes way back ----the ten commandments for example said ----
-THOU SHALT NOT KILL.

this suggests the person has a right not to be killed ,executed or otherwise terminated.

scalia is hung up because the court ie.-- HIMSELF-- hasnt ruled on the constitutionality of killing innocents

god didnt write on the tablets --thou shalt not kill, even if scalia hasnt so ruled ----he said thou shalt not kill.

[Apov]

I seems that truth and hard evidence seem to get in the way in this once great nation.

I believe we follow this road to our demise.

[rjmiller]

I would think execution would qualify as "cruel" punishment for not doing anything.

[ThinkCreeps]

I'd be interested in hearing from Scalia how execution of an innocent convict is consistent with `life, liberty and the pursuit of happiness'. While no actual happiness is guaranteed, this quote does seems to suggest that new exculpatory evidence should be grounds for a marked increase in life and liberty.

[RickO]

It depends on who's pursuit of happiness we're talking about.

[S1m0n]

Life, like liberty, isn't an absolute right. A citizen can be deprived of either liberty or life as long as due process was followed.

[Liberal Angel]

We are a culture of death in this country. Our kids are trained to be violent by video games. Our presidents set examples that if you're powerful, you are indeed above the law and cans and should get away with murder (or torture). A majority of people in this country feel violence is a valid way of solving problems, forgetting the disconnect between what adults say to kids, and what adults are fine letting their governement do. We tell them not to hit, but we are fine with wars of agression. We tell them not hurt each other, but we allow our presidents full reign to torture who they deem our enemies. We also tell them that killing is wrong, yet most of us are ok with allowing the government to murder its citizens, if a court finds them guilty. An innocent man may die soon because of the fact that our legal system is very fallible. Should we allow just one innocent person to die just to rid our society of undesirable people? Innocent people are being murdered routinely by our government. We turn on TV and hear so-called "Christians" preaching for the death penalty as if Christ himself ordained it. Joe Wilson was right to yell out "you lie", but Obama wasn't who it truly refers to. It really refers to the liars who claim state sanctioned murder is "justice".

[Texleft]

Jesus never told anyone to kill people. In fact very religious people of his time had him toutured and killed.

[Liberal Angel]

You know, and I know that, but a lot of people who claim to be his followers seem not to. I wish they would read the Gospel for themselves and use common sense to discern its meaning, instead of absorbing and regurgitating the BS they here in some mega-church.

[seawolf77]

Jesus may have never existed. It's time we all face that one and stop believing what was probably a myth to begin with. There are several classic eamples of divine beings who lived and died and riose again, a trinity, everlasting life, died for us or some version of us etc etc etc.

[Rasalom]

Can't think of a worse fate than waking up every morning knowing you're going to be executed all too soon for a crime you didn't commit.

[ibsteve2u]

That little paragraph of Scalia's - as well as who appointed him, the latter person's Party, and a synopsis of Scalia's political leanings - should be on every single pamphlet that a Democratic or Independent candidate for any office across this nation sends out.

Forever.

Most Americans see themselves as innocent.

[ibsteve2u]

Scalia's exact words:

[bq]
This Court has never held that the Constitution forbids the execution of a convicted de-fendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.
[eq]

http://supremecourtus.gov/opinions/08pdf/08-1443Scalia.pdf

That is a terrifying thing, to me...it really means that even if evidence of something as extreme as jury tampering is found, they can still kill you.

It makes me shudder to think of an America with the right in firm control - because I could see the right rewarding Beck, Hannity, and/or Limbaugh with federal judgeships - if not the SCOTUS.

lolll...my decades of ranting about what the right was doing to America might come back to haunt me.

[ibsteve2u]

http://www.law.cornell.edu/supct/html/91-1030.ZX1.html

[bq]
PAMELA WITHROW, PETITIONER v. ROBERT ALLEN WILLIAMS, Jr.
on writ of certiorari to the united states court of appeals for the sixth circuit

[April 21, 1993]

Justice Scalia , with whom Justice Thomas joins,

By statute, a federal habeas court has jurisdiction over any claim that a prisoner is "in custody in violation of the Constitution or laws" of the United States.
[eq]

See what I mean about just what rules they could break if they really wanted to fry you?

[RickyJ]

1. What is a "habeas court". How many people are on it?
2. Please give a list of cases where a habeas court has ruled that an incarcerated person is "actually" innocent and what happened to them afterward. Was Leonel Herrera such a person or is the intimation that he was innocent just an opinion of David Fathi?
3. Is it conceivable that those justices who advocate the Frankfurter-Scalia notion of "judicial restraint" in such matters do not endorse executing innocent people but think it is a legislative function to set up procedures to try to minimize the times it happens.
4. How many of the indignant posters here realize that the extreme form of the adversary system, used in US Courts, is to blame for procedure trumping truth? Countries with a more truth oriented trial system have a much more liberal appeals process, see, eg, Pizzi, "Trials Without Truth", NYU Press, 1999.

[skatoolaki]

Thank you for sharing this information; I can only hope that this man gets a fair re-trial and justice is served in the end.

[Cea80]

This truly is frightening. I can't believe that we still execute people in the 21st century.

[Weirdo]

Aren't there some things that people do for which the only appropriate punishment is death? I'm thinking of those two guys a few years back who went around shooting people in DC with a sniper rifle, or someone who abducts, rapes, and kills a child, or maybe even Osama bin-Laden.

I lean toward abolition, but I can understand execution.

[Rogan]

The problem is, that to execute a criminal, he ought to be convicted by much, much higher standards, than those which determine other sentences for other crimes.

The death penalty should be reserved for those who are KNOWN to have committed those crimes: as in, it's on video, or the evidence is similarly incontrovertibly damning; the bodies are buried in his yard, and he's confessing, and telling the cops they ought to execute him, maybe, for instance. In that kind of scenario - the kind that you're talking about, essentially, plus evidence on the level I'm talking about - the death penalty is indeed reasonable.

But no one ever argues that the courts just have to establish a much higher bar for the prosecution to get over, in such cases, than mere "beyond a reasonable doubt." I really don't understand why the argument never goes in the direction I see it needs to go. But it never does.

[MAH999]

Can you imagine having "executioner" as your job description? That seems really immoral to me.

[homesteader]

As a jury member or member of the prosecution team would you be more upset if your verdict was followed through, even if there was some chance that the guy was innocent or would you be appalled if you had to accept that the system is not perfect, that you did not do your job right for whatever reason?

[JoeSausage]

No longer content with just killing innocent Iraqis and Afghanis, the U.S. is now going to start killing innocent Americans. You thought they were coming for your granny? Well folks, no one's safe! Faster Pussycat! Kill! Kill!

[skatoolaki]

Sadly, there's no "start" here. Innocent people dying due to the death penalty is, I have no doubt, as old as the act itself.

[RickyJ]

The article and postings seems to repeat what has appeared on HP a few weeks ago. I asked then for the exact statement in the US Constitution that forbids the execution of somebody who a court decides is innocent and I didn't get an answer, just insults from those who want to beg the question. The US Constitution is one of the shortest constitutions in the world. There may be many socially desirable things that are not covered by it. Scalia is among those who feel uncomfortable in having the SCOTUS decide that there are really other implicit paragraphs in it. He thinks the gaps should be covered by legislation. Now what state, with capital punishment, has model procedures to make sure that the innocent are not executed? Maybe the others can be induced to also incorporate them in their laws.

[Rrhain]

Ignoring the Preamble, what about the Ninth Amendment?

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

I should think that one of the rights retained by the people is not to be executed for a crime you didn't commit.

The Constitution is not a laundry list. Scalia's vision of the Constitution is fundamentally flawed. For a man who goes on and on about "original intent," he seems to have forgotten that the document specifically and directly claims that the Constitution protects rights not explicitly delineated and that the original intent of the authors was to have the courts decide just those very things.

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

What on earth do you think "judicial power" means?

[Rrhain]

And by the way, are you seriously claiming that there is a judicial system anywhere that has a perfect record with regard to never convicting innocent people? This fantasy you mention about a State having "model procedures to make sure that the innocent are not executed" is precisely that: A fantasy.

No system of justice will ever get it right every single time. Doesn't it make sense that we not kill people when we know we're going to make a mistake eventually?

[skatoolaki]

I concur. Until we can introduce an infallible system, the death penalty should be off the table. And since that is impossible - as human beings, we make mistakes and none of us are 100% right 100% of the time - then the death penalty needs to be eliminated. There's not any reason for it to still be used, as studies have proven it does nothing to deter crime.

[ClarcKing]

This nation, the United States, was created in order to establish justice. Scalia should be asked/forced to resign for mental deficiency, professing perversions, creating degenerate "law", and treasonous sophistries designed to undermine the U.S. Constitution. A slave status is being slowly/covertly bestowed upon the citizen masses. I worry about pundits who imply that there is nothing the citizenry can do about it. The law profession and court of law edifice in the United States is due for some serious reformation.

[OlongapoEd]

If there is nothing wrong with the US Constitution, then why has the US gone through so much, shall we say, unpleasantness? I realize that good little boys & girls in the US aren't supposed to say such things, but as far as I'm concerned, the US Constitution and Declaration of Independence are the two most over-rated public documents in human history.

[Weirdo]

That's interesting. Seriously. What's your standard for deciding that?