Death and reasonable doubt

Despite serious questions about his guilt, Troy Davis was killed late last night by the state of Georgia. That news should give tonight’s Republican debate audience something to cheer about. And most other Americans will shrug it off entirely, which is almost as bad.Virtually alone among western civilized nations, America still hews to its faith in state-sanctioned death. Nothing seems to shake that faith – not documented proof of innocents dwelling on death row, not even embarrassing revelations about executed inmates whose exoneration came too late. And the death of Troy Davis, who was black, probably won’t make a dent either – even though his supposed guilt, in the slaying of an off-duty white police officer, has been undercut by a slew of inconvenient facts. Such as the fact that seven of nine prosecution witnesses have since recanted their testimonies, that there was no DNA or other physical evidence, that there was strong evidence of police misconduct during the investigation (namely, the coercing of witnesses), and that the witness who first fingered Davis has now confessed to the shooting.That kind of stuff is called “reasonable doubt.” As one prominent Davis supporter stated last week in an Atlanta newspaper, “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.”So wrote William Sessions, the tough-on-crime FBI director appointed by Ronald Reagan.When the U.S. Supreme Court revived the death penalty 35 years ago, it did so with the assumption that all death row denizens would be guilty beyond a reasonable doubt. That’s not how things have worked out. In the ensuing years, at least 140 doomed inmates have been exonerated and freed long after their trials – thanks, in large measure, to the advent of DNA testing. Which is one big reason why retired high court Justice John Paul Stevens, a ’76 advocate of the death penalty, publicly recanted his support last November, citing “the risk that the state may put an actually innocent person to death.”That may well have just happened in Georgia, where the authorities seemed far more interested in finality than justice. But Troy Davis is not alone, of course. To find other recent cases where inmates left this earth under questionable circumstances, we need only travel to the state of Texas. Big surprise, I know.Eleven years ago, Claude Jones was put to death there for murdering a store clerk. He had been convicted at trial on the basis of a hair fragment. Jones’ lawyers wanted to submit the fragment to a DNA test. The Texas courts said no, and Jones got the lethal needle. Flash forward 10 years. The hair fragment was finally tested for DNA. You want to guess what happened? The hair didn’t come from Jones’ head. Whose head was dead and gone.But this one is my favorite. It co-stars Rick Perry.A guy named Cameron Todd Willingham was sentenced to death for intentionally torching his house and killing his kids. As the execution date drew near, an independent fire investigator, Gerald Hurst, concluded that Willingham had been wrongly convicted on the basis of “junk science,” and that the fire had actually been triggered by a faulty space heater or bad wiring. Willingham’s lawyers asked Perry to delay execution so that the courts could study Hurst’s report (from the report: “there is not a single item of physical evidence in this case that supports a finding of arson”). Nope, said Perry. Goodbye, Willingham. Flash forward five years. A second fire investigator, Craig Beyler, surfaced to question the trial evidence, and he was preparing to meet with receptive members of the Texas Forensic Science Commission…when Perry speedily intervened. Perry removed three members of the state panel, and installed a new chairman who promptly canceled the meeting and squelched the probe. Perry then characterized his moves as “pretty standard business as usual.”True enough. And politically, paying obeisance to the death penalty is also business as usual. No presidential candidate since Michael Dukakis has dared to question it, in part because anyone who flunks that tough-guy litmus test is perceived as a girly man. Heck, Bill Clinton felt compelled to vet his toughness in 1992 by sanctioning the death of an Arkansas inmate who was functionally retarded. By those measures, Rick Perry should welcome any scrutiny of the Willingham case; it would probably boost his popularity within the Republican primary electorate.But death penalty policy, and the reasonable-doubt issues raised anew by Troy Davis’ demise, should not be a popularity contest. Justice should not be a political football; the Davis case, and so many others, should not be grist for debate audience cheerleading. As legal analyst Andrew Cohen remarked, a few hours before the Davis slaying, “how many legitimate questions must linger beyond the death chamber, before we either fix the system or end the experiment?”Or, as ex-FBI chief and former prosecutor William Sessions warned last week, while pleading for Davis’ life, “when it comes to the sentence of death, there should be no room for doubt.”——-Follow me on Twitter, @dickpolman1