The Troy Davis case indicates just how subjective the legal system really is.  The federal 11thCourt of Appeals deals with cases in Florida, Alabama and Georgia.  A panel of three judges selected from this court considered the Davis case yesterday.  Rosemary Burkett, a Clinton appointee with both Arab and Hispanic ethnic roots, would like to see a full airing of the facts surrounding the Davis case.  According to the Atlanta Journal-Constitution, Burkett finds it troubling that seven of the nine original witnesses have changed their stories and that one of the two witnesses sticking to his story has allegedly admitted to killing Savannah officer Mark Allen MacPhail.

Davis became the prime suspect in the case when Sylvester Coles told the Savannah police department that Troy was the killer.  According to media accounts, Judge Burkett is wondering why Coles was never considered as a suspect.  It’s bad enough that we may be on the verge of killing an innocent man, she told the court during yesterday’s hearing, but “it’s also possible the real guilty person who shot Officer MacPhail is not being prosecuted.” 

Why, Barkett asked yesterday, were none of the witnesses in the case shown a photo array including a picture of Coles?  “It seems police were so anxious to get somebody that they didn’t pursue Coles,” Barkett observed.

Judge Stanley Marcus, also a Clinton appointee, was less outspoken than Judge Barkett, but the testimony he was hearing bothered him as well.  Since the 1991 trial, three witnesses had signed statements saying that Sylvester Coles admitted to the crime over a beer or between tokes.

True, a single witness, Stephen Sanders, is sticking by his story.  At the 1991 trial, Sanders said, “You don’t forget someone who stands over and shoots someone.” 

However, as defense attorney Tom Dunn reminded the court yesterday, Sanders originally told police he wouldn’t be able to identify the shooter.  Memory usually gets fuzzier over time.

According to the Atlanta Progressive News, the hearing revolved around two questions: “First, given the evidence available Tuesday, is it likely a jury would not convict Davis? Second, did Davis exercise due diligence in providing new evidence?”

 Susan Boleyn, Senior Assistant Attorney General in the State of Georgia, argued the status quo position.  Troy Davis has presented no hard evidence of actual innocence, she told the judges.  Davis’s claims have been denied relief by the state courts, the 11th Circuit, the U.S. Supreme Court and the state Board of Pardons and Paroles, she reminded the court.  At some point you no longer get another bite of the same apple.

But when do you toss the apple core into the trash, and who decides?

Asked why three witnesses are primed and willing to testify that Coles privately confessed to murdering officer MacPhail, Boleyn rattled off a few theories.  Colesmight have been drunk or high on marijuana; or perhaps Coles was trying to impress his listeners with a bold lie. 

Boleyn reminded the judges that the reliability of recanting witnesses has traditionally been held in low repute.  The fact that a witness admits that they once lied under oath (for whatever the reason) should be enough to undermine their credibility.

Taken together, Boleyn’s arguments boil down to this: ya’ll can’t prove your man is clean, so we get to kill him.

Boleyn was also critical of defense counsel for not bringing their concerns forward in a more timely manner.  This raises an interesting question: what happens when defense attorneys don’t file their briefs on time?  Should the defendant suffer for the mistakes of the people charged with his defense?

Well, yes, if precedent is anything to go by, he should.

The smooth running of the judicial machinery trumps all other concerns.  The law requires finality.  You can’t have witnesses changing their minds willy nilly, especially in a capital case.  Therefore, it is generally agreed that witness testimony should be taken at face value and that once a witness speaks the words are set in stone.  Recantations undermine the finality prised by the legal system.

Unless, that is, a case achieves the kind of attention the Troy Davis case is currently receiving.  When both sides are free to make their arguments and the media is paying attention (sort of), the immovable object (“we can’t execute a man who might be innocent”) runs up against the irresistible force of legal precedent (“a jury found him guilty and a string of courts have backed up their verdict, so he’s a dead man”).

Generally, a tie goes to the state.  Not this time.

Does Susan Boleyn and her buddies at the Georgia Attorney General’s Office know for sure that Sylvester Coles is innocent, Troy Davis is guilty, and the seven recanting witnesses are all lying through their teeth?  Of course not.  How could they possibly know these things?  They don’t care because they don’t have to.  Accused murderers are run through a complex game of musical chairs and when the music stops and they haven’t found a seat, they die.  We don’t have to know for sure that you’re guilty, nor do we have to care.  Justice is defined as whatever the legal system decides to do.  If a case proceeds through the proper channels justice has been served.

If Susan Boleyn worried too much about these things she wouldn’t be able to sleep at night.  Cut the poor woman some slack; she’s just doing her job.  The Senior Assistant’s role in the Troy Davis melodrama is to argue for the state of Georgia no matter how nonsensical her arguments may sound to the uninitiated.  Hers is not to reason why, nor can she allow her private judgment to intrude into the matter.  The decision was made by her bureaucratic superiors and she is paid to spout their arguments in public even when it makes her look like an escapee from a Monty Python sketch. 

Generally it doesn’t matter because no one from the outside world is paying attention. 

If folks had given up on Troy Davis he would be long dead.  But because a shining slivver of humanity is paying attention and a handful of reporters are still pressing pen to paper Troy Davis clings to life.

It’s got nothing to do with fairness or even common sense; it’s all about finality and bureaucratic efficiency.