In an op-ed written for the Atlanta Journal-Constitution, William Sessions asks the State of Georgia not to execute Troy Davis.
Four Months ago I predicted that the State of Georgia would not execute Troy Davis.
It wasn’t suggesting that mercy tinged with common sense would prevail.
In the absence of outside scrutiny, there is no question that Georgia would send Mr. Davis to God without a single qualm.
My sense that Georgia will end up doing the right thing was predicated on my belief that the Davis case would receive the kind of attention it deserves.
America has two separate and unequal systems of criminal justice, one for those with access to the media and legal counsel and a second system for low-profile defendants who can’t afford a good attorney. But if low-status defendants gain access to the media and motivated attorneys with time and resources, everything changes. The justice system low-status defendants have learned to know and hate is predicated on the assumption that nobody is paying attention and nobody cares. Generally, that is a valid assumption.
But Troy Davis has friends in high places and that means the media is doing its job.
William Sessions served as FBI Director under Ronald Reagan, George HW Bush and Bill Clinton. In other words, he ain’t no liberal pussy; just a fair-minded conservative who holds the criminal justice system to a high standard.
The Troy Davis case has divided the legal community along ideological grounds. Some agree with Judge T. Moore. If Davis can’t prove his innocence he should be executed. To do otherwise, Moore argues, “would wreak complete havoc on the criminal justice system.”
But must we execute a man who may be innocent in a misguided attempt to protect a broken system? Hasn’t Judge Moore set the bar several notches too high?
Actually, Mr. Moore has set the bar where legal precedent suggests it should be. Once a jury has pronounced a defendant guilty, it normally takes a clear showing of actual innocence to alter the situation. The justice system assumes (for no good reason that I can see) that juries get it right every time. Or, to be more precise, it is assumed that a jury verdict makes a defendant guilty no matter how flimsy the evidence.
In the Davis case, the states’ ‘evidence’ has been shredded. Simply stated, Mr. Davis cannot prove he is innocent, and the state can no longer prove he is guilty.
So what do we do? The family of a brave police officer is grieving because somebody, possibly Troy Davis, murdered him in cold blood. When the crime is heinous and the evidence is weak everything depends on the perceived status of the defendant. If the jury identifies with the defendant, if they see him as one of us, they will acquit; otherwise, they will convict. Prosecutors faced with a horrible crime and a community howling for blood are tempted to manipulate witnesses and suborn perjury in a desperate effort to pin the crime on whoever appears to be the most credible suspect.
This is almost certainly what happened to Mr. Davis.
Judge Sessions point is simple: you can’t execute a man if you can’t be sure he’s guilty.
Bob Barr, a Georgia Republican in a long-term love affair with the death penalty, made a similar point in an op-ed written for the Savannah newspaper. These men aren’t saying Troy Davis is innocent; they’re saying the State of Georgia might be fixing to execute an innocent man.
Who can argue?
Questions about his guilt continue to plague his conviction.
As Troy Davis faces his fourth execution date on Sept. 21, many may assume that lingering doubts about the case have been resolved. This is far from true, and the Georgia Board of Pardons and Paroles — which has several new members since the Davis case last crossed its desks — has the daunting task of reviewing one of the most controversial cases the state has ever seen.
What quickly will become apparent is that serious questions about Davis’ guilt, highlighted by witness recantations, allegations of police coercion and a lack of relevant physical evidence, continue to plague his conviction. Last summer, an extraordinary hearing ordered by the U.S. Supreme Court to answer these questions instead left us with more doubt.
At Davis’ evidentiary hearing, witnesses called by Davis recanted trial testimony and made allegations of police pressure. Others testified that an alternative suspect had confessed to them that he committed the crime. One eyewitness testified, for the first time, that he saw this other suspect, a relative of his, commit the crime. Police witnesses for the state of Georgia alternatively asserted that the original trial testimony was the true version of events and that it was elicited without coercion.
Some of these same witnesses also had testified at Davis’ trial but have since recanted their trial testimony. The judge at the evidentiary hearing found their recantations to be unreliable and, therefore, found Davis was unable to “clearly establish” his innocence. The problem is that the testimony of these same witnesses, whom the judge had determined were less believable, had been essential to the original conviction and death sentence.
What the hearing demonstrated most conclusively was that the evidence in this case — consisting almost entirely of conflicting stories, testimonies and statements — is inadequate to the task of convincingly establishing either Davis’ guilt or his innocence. Without DNA or other forms of physical or scientific evidence that can be objectively measured and tested, it is possible that doubts about guilt in this case will never be resolved.
However, when it comes to the sentence of death, there should be no room for doubt. I believe there is no more serious crime than the murder of a law enforcement officer who was putting his or her life on the line to protect innocent bystanders. However, justice is not done for Officer Mark Allen MacPhail Sr. if the wrong man is punished.
In 2007, the Georgia State Board of Pardons and Paroles issued a stay of execution for Davis and took the admirable position that it would “not allow an execution to proceed in this State unless and until its members are convinced that there is no doubt as to the guilt of the accused.”
Because this case continues to be permeated by doubt, the Board of Pardons and Paroles’ stance continues to be the right one. In reality, there will always be cases, including capital cases, in which doubts about guilt cannot be erased to an acceptable level of certainty. The Davis case is one of these, and it is for cases like this that executive clemency exists.
Those responsible for clemency play a vital role in ensuring our legal system includes a measure of compassion and humanity. The death penalty should not be carried out, and Davis’ sentence should be commuted to life.
William S. Sessions is the former director of the FBI, a former federal judge and federal prosecutor.