Death Penalty Disgrace



By BOB BARR
THERE is no abuse of government power more egregious than executing 
an innocent man. But that is exactly what may happen if the United 
States Supreme Court fails to intervene on behalf of Troy Davis.

Mr. Davis is facing execution for the 1989 murder of an off-duty 
police officer in Savannah, Ga., even though seven of the nine 
witnesses have recanted their testimony against him. Many of these 
witnesses now say they were pressured into testifying falsely against 
him by police officers who were understandably eager to convict 
someone for killing a comrade. No court has ever heard the evidence 
of Mr. Davis’s innocence.

After the United States Court of Appeals for the 11th Circuit barred 
Mr. Davis from raising his claims of innocence, his attorneys last 
month petitioned the Supreme Court for an original writ of habeas 
corpus. This would be an extraordinary procedure — provided for by 
the Constitution but granted only a handful of times since 1900. 
However, absent this, Mr. Davis faces an extraordinary and obviously 
final injustice.

This threat of injustice has come about because the lower courts have 
misread the Anti-Terrorism and Effective Death Penalty Act of 1996, a 
law I helped write when I was in Congress. As a member of the House 
Judiciary Committee in the 1990s, I wanted to stop the unfounded and 
abusive delays in capital cases that tend to undermine our criminal 
justice system.

With the effective death penalty act, Congress limited the number of 
habeas corpus petitions that a defendant could file, and set a time 
after which those petitions could no longer be filed. But nothing in 
the statute should have left the courts with the impression that they 
were barred from hearing claims of actual innocence like Troy Davis’s.

It would seem in everyone’s interest to find out as best we can what 
really happened that night 20 years ago in a dim parking lot where 
Officer Mark MacPhail was shot dead. With no murder weapon, 
surveillance videotape or DNA evidence left behind, the jury that 
judged Mr. Davis had to weigh the conflicting testimony of several 
eyewitnesses to sift out the gunman from the onlookers who had 
nothing to do with the heinous crime.

A litany of affidavits from prosecution witnesses now tell of an 
investigation that was focused not on scrutinizing all suspects, but 
on building a case against Mr. Davis. One witness, for instance, has 
said she testified against Mr. Davis because she was on parole and 
was afraid the police would send her back to prison if she did not 
cooperate.

So far, the federal courts have said it is enough that the state 
courts reviewed the affidavits of the witnesses who recanted their 
testimony. This reasoning is misplaced in a capital case. Reading an 
affidavit is a far cry from seeing a witness testify in open court.

Because Mr. Davis’s claim of innocence has never been heard in a 
court, the Supreme Court should remand his case to a federal district 
court and order an evidentiary hearing. (I was among those who signed 
an amicus brief in support of Mr. Davis.) Only a hearing where 
witnesses are subject to cross-examination will put this case to rest.

Although the Supreme Court issued a stay of execution last fall, the 
court declined to review the case itself, and its intervention still 
has not provided an opportunity for Mr. Davis to have a hearing on 
new evidence. This has become a matter of no small urgency: Georgia 
could set an execution date at any time.

I am a firm believer in the death penalty, but I am an equally firm 
believer in the rights and protections guaranteed by the 
Constitution. To execute Troy Davis without having a court hear the 
evidence of his innocence would be unconscionable and unconstitutional.

Bob Barr served in the House of Representatives from 1995 to 2003 and 
was the United States attorney for the Northern District of Georgia 
from 1986 to 1990.

http://www.nytimes.com/2009/06/01/opinion/01barr.html?_r=1