Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder.
-- Justice Blackmun
Earlier today, I cited Bob Dylan, who was stopped by the police while hanging around before a gig. The link fit it into a broader context, shades of Gates (remember him?) without the racial anger or beer. The same, in a fashion, can be done with Troy Anthony Davis. There are over 3200 people on death row, but a few get most of the attention. Unlike the cop killer in Pennsylvania, Davis probably deserves more. He will get some via a special Supreme Court order.
The matter is addressed from both sides of the divide here and here. Some general comments about the death penalty can be found here [comments*] as well. The NYT recently discussed how lower court judges were concerned about the death penalty, particularly after the Antiterrorism and Effective Death Penalty Act of 1996, one judge at least involved in the Davis case. A special factual hearing given the high standard suggested by the majority (even the dissent) of case cited at the beginning of this post is of limited value, but you take what you can get when:
seven of the State’s key witnesses have re-canted their trial testimony; several individuals have implicated the State’s principal witness as the shooter; and “no court,” state or federal, “has ever conducted a hearing to assess the reliability of the score of [postconviction] affidavits that, if reliable, would satisfy the threshold showing for a truly persuasive demonstration of actual innocence”
Justice Stevens (with Breyer and Ginsburg) concurring to the special habeas order involved, one apparently last used in the 1960s. Justice Sotomayor was not involved, but she did join the libs to dissent from a rejection of a stay of execution (which was carried out this morning). This was another one of those cases where there were strong dissents below. The immediate issue involved lethal injection protocols but other matters were involved too as one article suggests:
The Ohio Parole Board by a 5-2 vote last month recommended clemency for Getsy because other defendants in the slaying, including Santine, appeared just as guilty but weren't sentenced to die. Gov. Ted Strickland overruled the board last week, saying the sentencing disparity did not by itself justify granting clemency.
Appeals courts previously have questioned Getsy's sentence. A three-judge panel of the 6th U.S. Circuit Court of Appeals overturned his sentence in 2006, saying it was arbitrary. The full 6th Circuit reinstated it in 2007 in an 8-6 ruling.
More on the case here. One mind-set when I noted this footnote in Sotomayor's career (first death penalty ruling?) was that "good, the scumbag is dead." Some don't care that the death penalty is akin to Russian Roulette, arbitrary application of justice is better than none at all, I guess. BTW, in Georgia, the governor does not have the power to commute Davis' sentence. The board involved turned him down (even with support from the likes of a former FBI head and conservative Bob Barr) with thin discussion of why (leading even a conservative who is no fan of stringent federal habeas review to be concerned).
In Herrera v. Collins, the source of Blackmun's words, the majority left open a chance for an actual innocence claim that would particularly strong. It is sound policy, even in death penalty cases, to strongly respect jury verdicts, particularly with constitutional safeguards in place and the power to commute or pardon available. This latter power is clearly weaker in practice in certain states. All the same, there should be an exception when there is a clear chance of innocence. The courts provide a special safeguard, especially in Death Belt states, and federal habeas provides one last barrier to injustice.
It should not have to get that far. When there is some clear doubt, state officials should at the very least commute the sentence to life in prison.
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* See, e.g., this link as to the state of our criminal justice system as a whole.