Davis' Pending Execution Will Stain America

The world pleas came from far and wide for a stay of execution for accused Savannah, Georgia cop killer Troy Anthony Davis. Davis's defenders were vehement that if Davis dies, the state would have killed an innocent man. There was no smoking gun proof that Davis was innocent beyond a reasonable doubt. But there was no murder weapon, physical evidence linking the former Police Athletic League coach to the murder, and seven of the nine witnesses that claimed Davis was the triggerman recanted their testimony. In what's become an all too disturbing pattern in the dubious convictions of men like Davis, the witnesses claimed they were scared stiff by police coercion, harassment, and threats into finger pointing Davis as the killer.

Davis faced two other towering problems in his fight to stay out of the executioner's chamber, and that's that there was no more money to file appeals and that the right to file more appeals has been sharply restricted. In 1996, when Congress passed, and Clinton signed, legislation that toughened the death penalty to combat terrorist acts, it reduced appeals and made it harder to get new trials. The year before that, Congress slashed millions in funds for post conviction public interest legal interest groups to help inmates such as Davis file appeals.

Davis, though, is hardly the first case in which doubts have been raised whether a possibly innocent person has been executed. Amnesty International, Human Rights Watch, and a scattering of federal appeals judges have repeatedly said that some possibly innocent persons have been executed since capital punishment was reinstated in 1976. A team of university researchers have named more than two-dozen cases in which men have been executed that may have been innocent.

In each case, there have been blatantly chilling similarities. The Innocence Project has noted that overzealous and untruthful prosecutors have suppressed, fabricated, and destroyed evidence, employed lying jailhouse snitches, and untruthful witnesses. Many of the cases have been riddled with racial bias. The condemned killer was black or Latino and their alleged victim was white. Davis is an African-American. When defense attorneys appeal these tainted convictions, the courts almost always dismiss their appeals on the grounds that the prosecutor committed "harmless errors" that didn't affect the outcome of the case.

The Texas execution of Ruben Cantu in 1993 for a murder he allegedly committed as a teen was a classic case of how a possibly innocent man can be executed. The case had all the slipshod legal ingredients -- a jailhouse informant's testimony, a dubious witness, a threadbare defense, and sloppy police investigation. It took a decade to get the truth out, but Cantu was declared probably innocent when the surviving victim recanted his identification and an inmate involved in the killing signed a confession that Cantu did not commit the crime.

In Cantu's case, and the cases of the other possibly innocent condemned men executed, state and federal appeals courts routinely rejected their appeals. But some judges publicly and privately expressed doubts not about the actual innocence of the men, but whether prosecutors and courts followed proper legal procedures and the defendants got a fair trial. Their doubts were not enough for them to overturn their convictions, or stay their executions. In every doubtful case, prosecutors hotly denied that any of the men executed were innocent.

Despite the questionable executions, no prosecutor, or government official, has ever officially said that an innocent prisoner has been executed. But some officials and judges have strongly hinted and warned that it could happen. In 1997, the chair of the House Judiciary Committee praised the system of legal checks and balances in place to insure that the rights of condemned killers are fully protected but admitted that there was no ironclad guarantee that an innocent person could not be put to death.

In 2000, Boston federal appeals court Judge Mark L. Wolf, in a case involving a Massachusetts man charged with multiple murders, sent a shock wave through the federal judiciary when he flatly said that there was strong evidence that some innocent persons may have been executed. He did not name the names of those who he thought may been innocent, but pointed to the dozens of men that have been freed from death row based on DNA tests, the recanting of damning testimony by witness and jailhouse informants, and other evidence.

The Justice Department stuck to its guns and insisted that it went strictly by the legal book to insure the fair and consistent application of the death penalty, and there were no slip-ups in that an innocent man could or had been executed, at least by the feds.

Even if Davis evades execution, there are many others who were possibly innocent that weren't so fortunate. That's a terrible stain on America's legal books that can't be easily erased.

New America Media Associate Editor Earl Ofari Hutchinson is an author and political analyst. His new book The Latino Challenge to Black America: Towards a Conversation between African-Americans and Hispanics (Middle Passage Press and Hispanic Economics New York) in English and Spanish will be out in October.