Finality Over Fairness: The Troy Davis Case

by William S. Sessions, partner Holland & Knight, former FBI director and former Chief Judge, United States District Court for the Western District of Texas

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 7 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. 1 of the 2 witnesses who has not recanted his testimony has now been implicated as the real murderer by 2 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 am a member of the Constitution Project's bipartisan Death Penalty Committee, which includes supporters of the death penalty, like me, as well as opponents. We are united in our profound concern that in recent years, and around the country, procedural safeguards and other assurances of fundamental fairness in the administration of capital punishment have been revealed to be deeply flawed. 2 of our consensus findings from our report on the death penalty apply directly to Mr. Daviss case. First, we condemned the kinds of procedural barriers that prevented the courts from addressing the merits of Mr. Davis's case and we recommended that they be eliminated. Second, we insisted that capital defendants have competent lawyers with adequate resources, which Mr. Davis's own lawyer stated (through no fault of his own) was not provided in his case.

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.

On September 12, the Georgia Board of Pardons and Paroles denied Mr. Davis petition for clemency and scheduled his execution for September 23 at 7 p.m. 2 hours before the execution was to take place, the U.S. Supreme Court granted a stay of execution until it could vote on whether to grant a writ of certiorari that is, to decide to hear his case.

I hope the Court will grant certiorari to avoid a miscarriage of justice. At the very least, Mr. Davis' substantive claims must be examined. The political process has failed Mr. Davis. Let us hope that the court of last resort rises to the challenge.

(source: ACS Blog)