By Alan Bean

-Can a system that routinely gets it wrong justifiably execute anyone?-

Predictions are always dangerous, but I am quite confident about this one.  The state of Georgia will NOT execute Troy Davis. 

Why am I so sure about this?  Because public officials are averse to embarrassment.  Politicians will back away from a sinful decision for the same reason they generally adopt a tough-on-crime stance–it’s the easiest way to go.  

Public scrutiny changes the way the criminal justice system functions.  When no one is paying attention, the system does whatever is easiest.  

Hapless defendants generally face a choice between a bad outcome (say, probation or a five-year sentence) and utter catastrophe.  Faced with this choice, few are willing to roll the dice.  

When the state is looking for the death penalty, or when a prosecutor refuses to place a reasonable plea deal on the table, a jury trial is virtually certain.  Even when the facts are highly ambiguous (as in the case of Troy Davis or Curtis Flowers), juries almost always opt for conviction if the crime is sufficiently heinous (like, for instance, killing a police officer in cold blood).  This is especially true when people of color (the folks most in touch with hard social reality) are systematically excluded from juries.  Forced to choose between putting a possibly guilty man back on the streets and sending a possibly innocent man to his death, juries generally vote to convict.  A simple contest between the valid safety concerns of the public and the constitutional rights of the defendant will almost always lead to a conviction.

But it doesn’t always work that way.  Guess how many people wealthy enough to pay for a defense attorney have been executed since the death penalty was reinstated in 1976.  Zero.  Paid attorneys have the time and resources to humanize their clients while fiddling with the levers of reasonable doubt.  It isn’t always enough to gain a not guilty verdict, but it tips the balance in the direction of life without parole.  Imagine the outcome if O.J. Simpson’s Dream Team had been replaced by an over-worked and under-resourced public defender.

Once a defendant has been convicted, the system will almost always uphold the interests of the state unless (a) the death penalty is on the line and (b) serious procedural issues cropped up during trial.  Ambiguous fact issues have little bearing at the post-conviction stage–the jury has already settled the guilt-innocence question and courts are extremely reluctant to overturn a jury verdict.  

The weak case against Curtis Flowers has resulted in two hung juries (when more than one African-American was selected for jury service) and three Supreme Court reversals (generally because the state manipulated the process to keep African-Americans off the jury).  The fact that the state’s case against Mr. Flowers is built on bribed testimony (“say the magic words and get $30,000 in hard cash”) has never been a relevant factor–at least thus far.

This explains why judges at the state and federal levels have been extremely reluctant to grant Troy Davis a new trial even though seven prominent witnesses have recanted their testimony.  At this point, nothing short of conclusive proof of innocence or gross prosecutorial misconduct could take the case out of the hands of the original jury. 

This being the case, why am I so sure that Troy Davis will escape execution?

Personal experience.  The state of Texas didn’t want to grant four Tulia defendants an evidentiary hearing in 2003, but the public outcry from the likes of the New York Times and prominent politicians like Hillary Clinton and Charles Schumer forced the Texas Court of Criminal Appeals to choose between business as usual and public embarrassment.  By the spring of 2003, too many prominent lawyers, high-profile organizations and high-status personalities had arrayed themselves against the Coleman drug sting for it to stand.

In Jena, Louisiana, District Attorney Reed Walters was determined to try the six African-American defendants as adults and to send them to prison for at least a decade.  LaSalle Parish juries would have been more than happy to oblige and, in the absence of public scrutiny, the appeals process would have refused to grant post-conviction relief.  That’s why Friends of Justice intervened. 

The combination of first-rate legal representation and a remarkably high degree of public attention (however divided) made it very difficult for business-as-usual justice to prevail.  Instead, after Reed Walters stalled the process long enough to ensure that no one was watching, the defendants were sentenced to a week of unsupervised  probation.  Just last week, even this modest sentence was expunged from the defendants’ records. 

In Jena, it was a question of how much embarrassment the system was willing to live with.  The answer: not much.

While the Troy Davis case moved though a convoluted appeals process, the public mostly sat on the sidelines.  When the US Supreme Court sent the matter back to Georgia, few took notice.  But the moment the state of Georgia sets an execution date you can expect an enormous outcry.  Already, a series of socially prominent groups and individuals (including the NAACP, Amnesty International, Jimmy Carter and the Pope) have expressed concern that the state may be executing an innocent man. 

If an execution date is announced, these breezes of discontent will take on hurricane strength. 

This wouldn’t happen, of course, if so many people weren’t making it happen.  And it wouldn’t happen if a steady stream of demonstrably innocent men hadn’t been exonerated in recent years.  Had it not been for years of back-breaking advocacy work, Troy Davis would have been executed years ago. 

Will the state of Georgia execute a man widely believed to be innocent?  Everything depends on how much embarrassment public officials are forced to live with.  At a certain point, I predict, they will back down.  This won’t happen because the system is fair or self-correcting; it will happen because politicians don’t like to be exposed as villains. 

The criminal justice system hates scrutiny but rarely has to worry about it.  Bring enough heat and the system changes.  It doesn’t change fundamentally (it will still be painfully difficult to win a new trial for Mr. Davis), but the shift is real and could even be transformative.  As his supporters understand full well, this has never been about Troy Davis; it is about the American criminal justice system, in general, and the death penalty, in particular.  If it is unjust to execute Troy Davis in the face of strong exculpatory evidence, we must ask if a system that routinely gets it wrong can justifiably execute anyone? 

Ask the question and the answer is obvious.