Let's begin with two OpEd's dealing with Troy Davis. First, in today's Washington Times, syndicated columnist Nat Hentoff writes, "Where are the Supreme Court liberals in Georgia case."
There are occasional campaigns in this country and abroad to protest our Supreme Court's indifference to a death-penalty conviction of a defendant whose actual guilt is demonstrably very questionable. But never have I seen so startling a denial of fundamental fairness by the high court as when it dispatched Troy Anthony Davis on Oct. 14 to be executed.
This case, Davis' lawyers told the Supreme Court in July, "allows this court an opportunity to determine what it has only before assumed: that the execution of an innocent man is constitutionally abhorrent." In this country and around the world, the basic fairness of Davis' conviction has been questioned by, among others, conservative former Rep. Bob Barr, a strong supporter of the death penalty, Pope Benedict XVI and Archbishop Desmond Tutu of South Africa. Davis was convicted in 1991 of murdering an off-duty Savannah, Ga., police officer in 1989.
I have been most impressed by a statement from William Sessions, the director of the FBI under President Reagan, the elder George Bush and Bill Clinton: "Troy Anthony Davis has been on death row in Georgia for more than 15 years for the murder of a police officer. ... 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." However, in the case of 40-year-old Davis, Mr. Sessions continued: "The murder weapon was never found, and other important physical evidence was missing. Key witnesses made inconsistent statements, and seven 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 Davis."
And:
Nonetheless, the Supreme Court told the state of Georgia to exterminate this man. Mr. Sessions' clear, damning analysis of how, despite the Constitution, the high court rubber-stamped Davis' conviction was published by the Washington-based American Constitution Project. Mr. Sessions is a member of its bipartisan Death Penalty Committee. He now reminds us of what the late Chief Justice William Rehnquist, hardly a foe of the death penalty, wrote in 1993: "It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible." Does this exculpate the nine executioners on the Roberts court in its lethal judgment of Davis? When the Supreme Court, without comment, refused to hear any more from Davis, there was no written record of any member dissenting. This often happens, but there have been times when one or more dissenters were so agonized that they said so on the record. This time, there was silence from even the four "liberal" members of the court.
In the wee hours, does any member of this court feel a tug of guilt? They are, after all, human beings, like us. And, though this case has been highly publicized, I detected no shudder among the citizenry at large. They were otherwise occupied with the disintegrating economy and the raucous presidential finale.
"Davis backers come in all stripes," is a Sunday Atlanta Journal-Constitution OpEd by Anne Emanuel, a Georgia State University Law prof.
In his Oct. 21 op-ed about the Troy Davis death penalty case, Spencer Lawton, the district attorney who prosecuted the case in 1991, asserts that: “The only information the public has had in the 17 years since Troy Davis’ conviction has been generated by people ideologically opposed to the death penalty, regardless of the guilt or innocence of the accused.” That is simply not true.
And the fact that it is not true matters, just as the fact that Davis, whose execution has been stayed by the 11th U.S. Circuit Court of Appeals, may be innocent matters.
Neither Libertarian presidential candidate Bob Barr nor former FBI Director William Sessions can be characterized as ideologically opposed to the death penalty. That shoe does not fit. Nor does it fit the many citizens of Georgia who simply want to hold the Board of Pardons and Paroles to its word: “[We] will not allow an execution to proceed … unless and until its members are convinced that there is no doubt as to the guilt of the accused.”
Lawton is resorting to ad hominem attack on the moral integrity of the concerned members of the public who have stepped forward to challenge the legitimacy of using the power of the state to execute Davis.
And:
Do I know to a certainty whether Davis is guilty? Of course I don’t. I know very little about that night, essentially only that someone shot and killed Officer Mark MacPhail, a heinous act that caused a tragic death. I know Davis was tried and convicted, and sentenced to death. I know that convictions deserve deference, but I also know that all too many verdicts do not speak the truth.
What do I think? I think this case tests our commitment to justice, and right now we are failing the test. Doubt about Davis’ guilt abounds, and it abounds for many sound reasons. To let this execution proceed, to take Davis’s life in the name of the good people of Georgia, breaches a sacred trust. We all deserve better.
AP today has, "11th Circuits Stays Execution in Georgia Killing," via Law.com.
As their legal options dwindled, Davis' attorneys appealed to the 11th Circuit Court. In a brief filed Wednesday, they claimed the execution was "constitutionally intolerable" and asked the court to delay the execution to pursue claims Davis is innocent.
The court on Friday gave defense attorneys 15 days to file a legal brief on their arguments.
A death penalty expert said the court's decision was surprising.
"This is extraordinarily rare. The law is very demanding and the Court of Appeals is a very conservative court," said Stephen Bright, a death penalty expert who is the head of the Southern Center for Human Rights. "It's just not something that one would expect from this court."
"Court issues stay, lets Davis make his case," is Saturday's Atlanta Journal-Constitution report by Bill Rankin and Rhonda Cook.
The state attorney general’s office canceled Monday’s execution, spokesman Russ Willard said, adding that state attorneys are exploring their options.
On Wednesday, Davis’ attorneys asked the 11th Circuit for permission to pursue a new federal habeas corpus petition —- in which an inmate claims he is unlawfully incarcerated.
The Antiterrorism and Effective Death Penalty Act of 1996 requires a federal appeals court to approve such a request before a new lawsuit can be filed.
“Upon our thorough review of the record, we conclude that Davis has met the burden for a stay of execution,” the court said in an order issued by Judges Joel Dubina, Rosemary Barkett and Stanley Marcus.
The judges called the stay “conditional” and said they want to hear more from Davis’ lawyers and state attorneys. Davis must clear two difficult legal hurdles to win new appeals.
First, he must show that his lawyers could not have previously found the new evidence supporting his innocence no matter how diligently they looked for it. And he must show that the new testimony, viewed in light of all the evidence, is enough to prove “by clear and convincing evidence that … no reasonable fact finder would have found [him] guilty.”
The 11th Circuit added a twist. It asked the parties to address whether Davis can still be executed if he can establish innocence under the second standard but cannot satisfy his burden under the first, due-diligence question.
The court gave Davis’ lawyers 15 days to file their legal brief and state attorneys another 10 days to respond.
Earlier coverage begins with this post.
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