By Laura Moye, Death Penalty Abolition Campaign Director
This is just a quick note from Savannah, Georgia, where I am right now with a wonderful delegation of folks from the UK who are here visiting to support Troy Davis.
On Friday, September 25, we had meetings with three members of Congress’ offices and European embassy staffers. All of these public servants have been invested in work to abolish the death penalty and create a more fair justice system. It was wonderful to exchange perspectives and discuss strategies for a global effort to end the death penalty. That night, we flew to Atlanta. We drove down to Jackson Saturday morning along with Troy’s mother, Virginia, and sister, Martina. We entered the maximum security facility, lined with tall fences covered in multiple coils of concertina wire and guard towers at every corner.
Bob Barr thinks so. In his Washington Times op-ed, the former federal prosecutor, Georgia Congressman and Libertarian Presidential candidate, labels Scalia the “high court curmudgeon” for his dissent from the Supreme Court’s order giving Troy Davis to have an evidentiary hearing on his substantial evidence of innocence.
Scalia believes, simply, that the Constitution doesn’t protect the innocent from being executed. Barr believes that it does.
“The Constitution of the United States was adopted in 1787; the Bill of Rights four years later in 1791. Apparently for Justice Scalia, these past 218 years have not sufficed to “clearly establish” that federal law is based on the premise that only the guilty are to be executed.”
Bob Barr was instrumental in the passage of the Anti-terrorism and Effective Death Penalty Act (AEDPA) back in 1996, and has clearly been perturbed by the way that law has been interpreted to prevent what justice plainly requires in this case:
“… a full hearing at which the witnesses Davis believes will show his actual innocence are allowed to testify.” And at which “… the state of Georgia will have full opportunity to rebut that testimony.”
The “pinched and erroneous” interpretations of AEDPA by cantankerous old judges like Scalia ignore the fundamental basis for law and justice, which is to punish the guilty and protect the innocent.
Despite the Supreme Court’s summer hiatus, the Troy Davis case continues to make news. Tuesday night on CNN’s Anderson Cooper 360, reporter Gary Tuchman covered the case. His report includes interviews with some of the witnesses who have recanted their trial testimony, and well as one of the jurors who now says she would find Troy Davis not guilty. Tuchman also interviews Officer Mark MacPhail’s widow, but was unsuccessful in scoring an interview with the alternative suspect, Sylvester “Red” Coles.
The US Supreme Court reconvenes on September 29, and may make a decision on his case at that time, but meanwhile the new District Attorney in Chatham County, Georgia, can still reopen the investigation into the case.
Today, on its last day of work before summer vacation, the U.S. Supreme Court postponed its review of Troy Anthony Davis’ case until September. As Amnesty International has repeatedly pointed out, Davis was sentenced to death for the 1989 shooting of a police officer in Savannah in the absence of any physical evidence against him and based solely on the testimony of 9 witnesses. Since the trial, seven of the nine witnesses have recanted their statements or have changed them. Moreover, nine affidavits exist that implicate one of the remaining two witnesses in the murder. Doubts about the fairness of the verdict have arisen even among the jurors in Troy’s case who, eighteen years ago, unanimously sentenced Davis to death.
The Court’s decision (or non-decision) comes amidst a groundswell of local activism in Savannah, where citizens are demanding that the new District Attorney, Larry Chisolm, reopen the case due to the major doubts about Troy Davis’ responsibility for the crime. Today’s non-decision is also significant, in that it may show that at least some Supreme Court Justices are concerned about whether strong claims of innocence are getting adequate review in our lower courts.
In September, the U.S. Supreme Court could reject Troy’s petition. Or they could agree to hold a hearing on Troy’s case or remand it to the federal District Court for a new hearing. This would allow the new evidence available in this case to finally be examined in open court and would signify that fairness, at least in this case, is a priority over “finality”—something immensely important in the case of the death penalty, where mistakes, arbitrariness and bias are all too common.
On May 26, the United Nations released a report by the Special Rapporteur on extrajudicial, summary or arbitrary executions, which highlights, among other things, some of the major flaws in the US judicial system related to the death penalty. The report focuses particularly on the sates of Texas and Alabama, where the research of the Special Rapporteur was concentrated.
The report rightfully notes that the current judicial system in those two states is significantly flawed as it leaves room for the wrongful conviction and execution of innocent people, something that was confirmed even by interviews with public officials. In that respect, the author provides a detailed review of the judicial failings related to the death penalty. He notes that there are legal limitations preventing inmates from access to DNA tests once they have already been convicted. In addition, the defense attorneys appointed to death penalty cases often receive compensation far lower than what is necessary to construct an adequate defense. Appointed counsel also frequently have continuing professional relationships with the judges before whom they appear, which can be the source of “structural disincentives for vigorous capital defense.” The access of defendants to federal habeas corpus proceedings, the report asserts, is also too limited.
At the same time, finality in death penalty cases is often granted undue emphasis at the expense of a careful examination of the potential evidence related to innocence claims. The author notes that in Alabama, “officials would rather deny (the execution of innocent people) than confront criminal justice system flaws.” Unfortunately, this is true not only in Alabama, as has become evident in the case of Troy Davis, who may soon face his fourth execution date in two years, despite the fact that the case against him was build predominantly on the testimony of nine witnesses, seven of whom have recanted their statements (and have alleged that they were coerced by authorities) since the time of Troy’s conviction. However, despite opposition from human rights activists across the world, Troy has remained on death row for 18 years and has not yet received a hearing on the details of his case that have emerged since the time of his conviction. Moreover, the failure of the judicial system to hear the evidence in support of Troy’s innocence means that the person truly responsible for the murder of which Troy was convicted, has not yet faced any legal consequences for his action. This danger was also highlighted in the UN report, according to which “wrongful convictions mean that true criminals remain at large.”
The UN report also points to the drawbacks in the electoral system for appointing judges in Texas and Alabama, which highly politicizes death penalty cases. In fact, the author cites statistics suggesting that the likelihood of a death penalty sentence is directly correlated with the imminence of judicial elections or with the lobbying efforts of groups that are supporters of capital punishment. He also pinpoints the particular problems with judicial elections in Alabama, where jury decisions can be overruled by elected judges, and where nine out of ten cases in which a judge overrode a jury decision resulted in a death sentence. Finally, the report uncovers the existence of racial bias behind the imposition of the death penalty across the country, something that is confirmed by the research of Amnesty International USA.
Nearly twenty years ago Troy Davis was convicted of killing a Georgia police officer. As has become well known, the case against him has grown weaker and weaker as seven of the prosecution’s nine witnesses have recanted their testimony, many saying that they were coerced by police. Davis’ latest stay of execution has now expired, after his application for a second habeas petition was denied, preventing him from presenting new evidence.
But late last year, the Chatham County, Georgia (the county in which Troy Davis was convicted) elected a brand new District Attorney named Larry Chisholm, who successfully campaigned on a platform to “increase the sense of fairness” in the office. If these are truly his intentions, a great way to start would be for him intervene on behalf of Troy Davis to ensure that an innocent man is not executed based on false information.
This case could be monumental in shaping the career of the new DA. It seems clear from out here that intervening on behalf of Troy Davis would be seen as a courageous act that he could point to with pride for the rest of his political life. But inside Chatham County, where there are powerful forces pulling him in different directions, the decision is not quite so easy. Larry Chisolm is the first African American DA in the history of Chatham County, a county in the Deep South with a long history of racial division. So any decision in a case involving an African American convicted of killing a white police officer, however dubious the evidence now seems, will be extremely difficult and politically charged.
Chisholm’s intentions in this case are as yet unclear. He has stated that he will not move forward with the trial until all of Davis’ appeals are exhausted, and a remaining “original” habeas petition is sitting at the US Supreme Court, reportedly due to be considered by the end of this month. But DA Chisolm could at any time decide to re-open this tainted case, to take a closer look and find out what really happened that Summer night in Savannah almost 20 years ago. It is important for DA Chisholm to hear from citizens across the country that re-opening this case will be the right choice. You can take action right now to encourage DA Chisolm to do the right thing!
Today is the Global Day of Action for Troy Davis. Over 150 events in 45 state, DC, Puerto Rico, and 28 countries overseas have been scheduled, demonstrating as clearly as can be demonstrated that the public will not stand for the execution of a man who has had no hearing on evidence that he may be innocent. The failure of our courts to take seriously questions of innocence is of course not limited to Troy Davis’ case, but his case is so simple – 7 of 9 witnesses have recanted their trial testimony – and the solution so obvious – an evidentiary hearing featuring said witnesses – that it is in equal parts baffling, frustrating and outrageous that Troy Davis may be once again on the brink of another execution date.
A hearing to examine and cross-examine these witnesses should not be too much to ask.
Today, a last ditch effort with the Supreme Court will be filed, but it has become clear that our courts and politicians have a supremely bureaucratic mentality towards justice; they will only take action or exercise leadership if they know they are being watched. That is why it is so important that so many people are coming out today, to be seen and heard. And why it is so important that we continue to do so.
On April 16, the 11th Circuit Court of Appeals rejected Troy Davis’ application for permission to file a new petition in Federal Court. This denial cannot be appealed, but Davis’ stay of execution was extended an extra 30 days to allow him to file an “original” habeas corpus petition with the US Supreme Court.
So, Troy Davis’ stay of execution expires on May 16.
On Tuesday, May 19, groups in Georgia, the United States, and around the world, will be organizing for the Global Day of Action for Troy Davis. These worldwide protests will demonstrate how widespread is the feeling that, given the steadfast refusal of federal courts to grant Davis a hearing on evidence that he might be innocent, an execution must not go forward in this case.
Even those who support the death penalty should admit that it would be a fundamental miscarriage of justice to allow an execution when doubts about guilt have been raised to this level, and no evidentiary hearing has been held to resolve those doubts.
Today, the 11th Circuit Court of Appeals denied Troy Davis’ petition to file a second habeas petition in Federal district court. The decision is here. The vote of the three-judge panel was 2-1. The Court did extend Davis’ stay of execution for 30 days to give him a chance to file a habeas corpus petition with the US Supreme Court.
The Saturday New York Times story on Texas Court of Criminal Appeals Presiding Justice Sharon Keller contains this gem:
“We can’t give new trials to everyone who establishes, after conviction, that they might be innocent,” she later told the television news program Frontline. “We would have no finality in the criminal justice system, and finality is important.”
Judge Keller is now in big trouble in Texas, not for this callous attitude towards innocent people, but for her role in shutting her court down promptly at 5 pm despite knowing that an appeal in the death penalty case of Michael Richard was on the way, an appeal that would almost certainly have been successful.
Judge Keller is NOT getting in trouble for her preference for finality over innocence because that is in fact a very common view in legal circles throughout the United States. Indeed this perceived need for finality has led to the rejection of countless appeals with real merit, and the question of executing someone who can establish his innocence, purely for the sake of finality, is the central question for which we are awaiting an answer in the Troy Davis case.
What Judge Keller did in the Richard case was reprehensible, but the casual disregard for the rights of people who can establish their innocence is not only equally reprehensible, but also amazingly widespread.
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Edith Garwood is the Amnesty International USA Country Specialist for Israel, the Occupied Palestinian Territories and the Palestinian Authority. She's a long time human rights activist that acted as Country Coordinator for AIUSA on Israel and the Occupied Territories during the first intifada as well (1987-1993). She has lived, studied and traveled in the Middle East throughout the past two decades. See all »
Many Amnesty International activists around the world have been working hard on the Troy Davis campaign. AI UK is one of the sections that has made Troy’s case a priority. They wanted to send a team here to visit Troy and offer their solidarity for our struggle. Their anti-death penalty campaigner, Kim Manning-Cooper, is here with Alistair Carmichael, a Member of Parliament, and Richard Hughes, drummer for popular British band Keane.
