"The Death Penalty and Decedent's Reputation," is the title of Christopher Brauchli's Huffington Post essay. He's a Colorado attorney. Here's an extended excerpt:
It is not the purpose of this column to take sides in the ongoing debate about the applicability of foreign laws to our own justice system but rather to suggest that at least one recent example of a foreign proceeding might be worth imitating in the United States. Our instructor in this procedure is Sergei L. Magnitsky and the process entitled to thoughtful consideration is found in Russia.
Mr. Magnitsky was a Russian lawyer who was arrested for allegedly having tried to expose a tax fraud perpetrated by officialdom. He said that certain interior officials had embezzled $230 million from the Russian Treasury. Arrested in 2008, he died in prison in 2009. His family said that he had not received proper medical care.
Mr. Magnitsky has now been dead for more than 2 years. In early February it was announced that the government intended to try Mr. Magnitsky for tax evasion, the offense for which he had been arrested, notwithstanding the fact that he was dead. According to reports, this would be the first posthumous prosecution ever to take place in Russia. Russian officials explained it would permit relatives and supporters to clear his name; or, alternatively, vindicate the officials who had been accused of corruption.
The government recognizes that this is a somewhat unusual procedure and sent a letter to Mr. Magnitsky's mother offering to drop the case if relatives had no "desire to protect the honor and dignity of the deceased." As of this time there is no word on whether she thinks the trial should proceed or whether she is content to have her son remembered as an accused man rather than a victim of a false accusation. The question readers are no doubt asking themselves is how this foreign procedure could be applied to United States proceedings. The answer is by adopting the Russian procedure in death penalty cases.
One of the arguments against the death penalty is that once it has been administered the results are final and the case is over. There is no way for someone who has been executed to clear his name. Troy Davis, formerly of Savannah, Georgia, for example, was on death row for many years. A large contingent of prominent citizens had come to his defense asserting that he was not guilty of the crime for which he was to be executed. Among his defenders were former president Jimmy Carter, Pope Benedict XVI (who opposes the death penalty was well as contraception), former Georgia Supreme Court Chief Justice Norman Fletcher and other prominent citizens. Appeals exhausted, Mr. Davis was executed September 20, 2011. Here is where the Russian example could usefully be invoked.
The Knoxville News Sentinel recently reported on a 1922 Tennessee execution that still reverberates, "Maurice Franklin Mays: Died claiming innocence but conviction stands." It's written by Matt Lakin, and appeared om the February 26 edition. Here's the beginning:
He walked to the electric chair on crutches, declaring his innocence with his dying breath.
Maurice Franklin Mays shook the hand of his executioner and settled into the death seat.
"I am as innocent," he said, "as the sun that shines. I hope the politicians are satisfied."
The electric current cut off the condemned man's last words. Four minutes and 2,800 volts later, a prison doctor pronounced him dead at age 35.
The specter of Mays' death still haunts his home city and Tennessee's judicial system, nearly nine decades after his execution for a crime that drew outrage on a level not seen again until the Chipman Street killings of 2007. Mays took his last steps inside the death house in Nashville that morning of March 15, 1922, but his life effectively ended the moment a white woman called him a killer during a lightning-quick lineup under a North Knoxville streetlight in 1919.
His name carries that stain to this day.
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