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Roger Smith

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It's Too Late for Troy Davis, But It's Not Too Late for Us

Posted: 09/23/11 07:26 PM ET

Like so many people, I was unfamiliar with the Troy Davis case until a week ago. My death-penalty views extend beyond the usual left-liberal's opposition into a fairly absolutist anti stance. (When pressed on occasion, I try to shut off the discussion by saying "I was opposed to executing Eichmann. Is that clear enough?")

So when I read of a case where the facts seem to indicate that a defendant, almost invariably black, is on the brink of execution despite an array of withdrawn testimony and suggestions of prosecution misconduct (almost invariably in one of the sister states of the Confederacy), I tend to take the "facts" as presented at more or less face value. I don't sign petitions, I don't march, I just do a lot of sighing.

A number of years ago I saw a play, The Exonerated (the title's a tip-off), directed by the multi-talented writer/actor/director/producer Bob Balaban. The play, as I recall, was sponsored by Project Innocence and presented a skein of horrific cases where seemingly innocent people had been nearly railroaded into executions. Its message was searing, its impact on the audience (as pure a downtown-Manhattan a crowd as you could ask for) predictably powerful.

But in a brief post-performance discussion with Mr. Balaban, I found myself taking issue with the play's premise.

My complaint was simple: it stated that innocent people should not be put to death. I said that I thought that such a concept didn't need to be argued, but frankly was almost universally accepted, even in the more benighted sections of America. My view, as an absolute opponent of the death penalty, was that guilty people shouldn't be put to death -- and getting that idea across to a broad audience would, in the long run, have a more therapeutic effect.

I guess he thought, probably correctly, that I wouldn't have made it as a dramatist. And I'm not at all sure how successful I am as a straight-out polemicist either.

But to see how much this foul law has, over the decades, hardened the hearts of even the most well-meaning, allow me to reprint the conclusion of Tuesday's New York Times editorial imploring those who had any remaining judicial power to step in to save the life of Troy Davis:

Seven of nine witnesses against Mr. Davis recanted after trial. Six said the police threatened them if they did not identify Mr. Davis. The man who first told the police that Mr. Davis was the shooter later confessed to the crime. There are other reasons to doubt Mr. Davis's guilt: There was no physical evidence linking him to the crime introduced at trial, and new ballistics evidence broke the link between him and a previous shooting that provided the motive for his conviction... The board's failure to commute Mr. Davis's death sentence to life without parole was a tragic miscarriage of justice.

Excuuuuse me, Mr. Editor, as Steve Martin would say. You roll out that list of grievous flaws in the trial that convicted him and you say that "life in prison without the possibility of parole" is the appropriate outcome? Where is our great liberal clarion's voice demanding nothing less than an immediate new trial?

Of course that was three days ago, when Mr. Davis was still alive. At least now his wanton judicial murder may serve a purpose, as I personally would happily contribute to a fund to pursue every loose end of this case and ultimately determine conclusively whether or not an innocent man was executed -- despite an elaborate appeals process all the way through the U.S. Supreme Court designed to prevent just such an occurrence -- especially when there was reasonably credible cause for doubt in the man's underlying guilt -- not in some procedural issue...

There has been a clear majority in favor of the death penalty in the U.S. for decades. This, most observers believe, is the product of the confluence of the extremely high crime rates of the '80's and '90's and the Supreme Court's effective -- if temporary -- ban on executions imposed in the 1970's. That those crime rates have fallen sharply while our prison populations have risen is yet another sad subject. But those divergent trends can surely be offered as evidence to the general public that, contrary to its mistaken belief, a "life sentence" no longer means "ten years and you're out on parole." In fact it almost never did.

I realize that only a minority of Americans share my blanket ethical objections to the death penalty. Thus focusing on these clear-cut cases of provably innocent people being executed, or being saved from execution at the very last minute by massive efforts by outside groups, nearly always in the face of implacable opposition by the police, prosecutors and judges that handled the case from initial prosecution through appeals, offers the best chance to effect some real change in America's perceptions about this barbarous practice.

So, sadly, having asked Mr. Davis to spend 22 years in prison awaiting execution and then to be actually executed for a murder it strongly appears he did not commit, we may have to ask him to make a still further contribution. He can become the symbolic spearhead of a concerted effort finally to mobilize a majority of Americans behind a severe limitation on the death penalty's use. Its outright prohibition remains sadly but clearly politically impossible.