Magazine article The Wilson Quarterly

Last Chance on Death Row: A Little-Known Legal Doctrine Confounds the Most Basic Understanding of Justice-Whether It Matters If a Convicted Person Is Actually Innocent

Magazine article The Wilson Quarterly

Last Chance on Death Row: A Little-Known Legal Doctrine Confounds the Most Basic Understanding of Justice-Whether It Matters If a Convicted Person Is Actually Innocent

Article excerpt

WHEN A FEDERAL JUDGE IN GEORGIA ANnounced the fate of death row inmate Troy Davis on August 23, the long-awaited decision was not what Davis or his supporters had prayed for. He'd become a cause celebre for organizations such as Amnesty International and the NAACP, which decried his conviction as baseless and racist and had deployed the usual campaign of online petitions, protests, T-shirts, and pins. Former president Jimmy Carter, Archbishop Desmond Tutu, and Pope Benedict XVI had lent their support to the cause.

But in the end, Davis lost. Sometime in the coming months, he will be executed by lethal injection, though he still claims to be innocent of the charge that he killed a police officer two decades ago. How many chances should we give to someone to prove his innocence? Just one? Five? An infinite number? This bedeviling issue-"actual innocence," in legal parlance-remains one of the giant open questions of modern constitutional law. Davis's fate may no longer be in the balance, but sooner or later the courts will be confronted with a person who is scheduled for execution and yet can prove his innocence.

Davis's saga began in the early hours of August 19, 1989, when a group of African-American men, including Davis, were seen attacking a homeless man near a parking lot in Savannah, Georgia. Off-duty police officer Mark MacPhail responded to the altercation and was shot in the chest and head. He died before help arrived. One of the attackers named Davis as the killer, and other witnesses confirmed that story at trial. In 1991, a Georgia jury convicted Davis of the murder, and he was sentenced to die. Since then, he has tried every avenue legally available to him, never wavering from the claim that he is innocent.

Davis was convicted on the basis of the testimony of nine witnesses. No physical evidence conclusively linked him to the crime, and no murder weapon was ever found. Later, Davis claimed that seven of the nine witnesses had recanted or contradicted their prior testimony. One, Darrell Collins, who was 16 at the time of the crime, said that he had been threatened with being charged as an accessory to murder if he did not name Davis. Another, Kevin McQueen, had originally claimed that Davis confessed to him while the two were doing time together in prison. Later, McQueen admitted that he had been motivated to say this by a prison yard argument with Davis. (He had received a reduced sentence for his testimony against Davis.) The federal judge decided that several of the recantations Davis presented were not credible, and the remainder did not fundamentally undermine the evidence against him.


At the core of Davis's case is the question of what should happen when a fair, lawful trial is still alleged to have led to the wrong result. Under the Constitution, can we legally execute an innocent person?

The Supreme Court declined to answer that question when it ordered a new hearing in Davis's case last summer, but some of the justices wrote separately to address it. Justice John Paul Stevens argued that a person "who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man" surely could not "be put to death nonetheless."

But Justice Antonin Scalia, in a dissent joined by Justice Clarence Thomas, argued that a new hearing for Davis was pointless because it no longer mattered whether he had new evidence of his innocence. Even assuming that Davis could prove he was innocent, Scalia wrote, "this Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent." Indeed, he wrote, the Court's prior decisions had "expressed considerable doubt that any claim based on alleged 'actual innocence' is constitutionally cognizable."

At this point, anyone whose common sense has not been deadened by three years of law school might scream: How can it be an open question whether it is constitutional to execute the innocent? …

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