Troy Davis has been executed, notwithstanding the protests of thousands of citizens around the world, with and without name recognition or celebrity status. [Photo credit: Erik S. Lesser/AFP/Getty Images/Time.]
Kim Severson, "Davis is Executed in Georgia," New York Times, September 22, 2011, p. A1 ("Proclaiming his innocence, Troy Davis was put to death by lethal injection on Wednesday night, his life — and the hopes of supporters worldwide — prolonged by several hours while the Supreme Court reviewed but then declined to act on a petition from his lawyers to stay the execution.").
Although I claim no expertise with respect to criminal law, or criminal procedure, it is a case worth reflection by all of us. Especially is this so as we mourn the loss of my colleague, personal friend, and internationally recognized true death penalty expert, David Baldus, and prepare for a conference and memorial service this next month to honor his lifetime achievements.
Some object to the death penalty as a punishment in any criminal case. Others were objecting to its use in this case, either because they were convinced he was the wrong defendant, that he had done no wrong, or because they believed there was sufficient doubt about his guilt to be troublesome.
Actually, I think my wife, Mary Vasey -- who is vigorously opposed to the death penalty in any case -- has this one right: if you, too, are troubled by the prospect of future Troy Davis cases, and the possibility of additional state-sanctioned killings of innocent men and women, what needs to change are not so much reviews of individual death penalty cases prior to executions, but repeal of the laws permitting the death penalty in the first place.
I have no firsthand knowledge of the events, did not serve on the jury, was not present at the trial, and have not read the transcript, judicial opinions, and other documents related to the case. Whatever I may suspect the facts might have been, I do not -- indeed I could not possibly -- "know."
So what was "the truth" in the Troy Davis case?
There are many definitions of “truth.” A scientific discovery -- such as this week's revelation that scientists at CERN may have propelled a particle at speeds in excess of the speed of light -- only becomes a scientific truth once carefully recorded experimental data has been peer reviewed and found to be capable of duplication. On the other hand, a religious truth may be whatever a religious leader proclaims it to be. An athletic truth is measured in strokes of a golf club, or the minutes and seconds -- even one-hundredths of seconds -- it takes the winner to run around a track, or ski down a hill.
On the other hand, the legal truth is whatever a jury's verdict proclaims it to be, whatever the jury says it is.
What is the truth regarding the allegations that O.J. Simpson murdered his former wife Nicole Brown Simpson and her friend Ronald Goldman? Whatever the real-world space-time-events, or "facts" in that sense, may have been, the legal truth, according to the jury verdict in his 1995 criminal trial, was that he was "not guilty." (Of course, that's not the same as saying "he didn't do it;" it's just saying that during this criminal trial the prosecutor failed to meet his or her "burden of proof" that he did it. Indeed, subsequently in the 1997 civil trial for "wrongful death," the plaintiffs' burden of proof was less, was met, and the "legal truth" for purposes of that trial was that "he did do it.")
Once the jury has rendered its verdict, and no executive (the president, or a governor) has intervened, the decision to execute a defendant rests with the appellate courts. And thus to criticize the execution of Troy Davis is to appear to criticize the appellate courts’ (including the Supreme Court’s) handling of the case.
However, if you want to avoid –- to use the popular characterization -– “judges legislating from the bench,” it’s hard to criticize them for following the law.
What can appellate courts do in death penalty cases? New trials can be ordered if the defendant did not have competent representation by counsel, if evidence was admitted that was prejudicial and should have been excluded, if defense counsel was prevented from striking a prejudiced juror when the jury was selected, if the judge’s instructions to the jury were not proper, among other examples. But if everything proceeded as the law provides, the appellate courts are largely bound by the findings of the jury and the sentencing by the trial judge.
Indeed, that’s precisely what those who wrote the Constitution and Bill of Rights sought to accomplish. If the appellate courts can overturn a jury’s “guilty” verdict merely because, had they been jurors, they wouldn't have voted that way, they can also overturn a jury’s “not guilty” verdict, and impose the death penalty, as "super jurors." However inadequate a jury system may be, the drafters felt that for all its faults they would rather trust their fate to “a jury of their peers” than a potentially arbitrary, tyrannical, unelected judge.
Thus, much of what we do and don’t like about the judicial system can be, and should be (up to when Constitutional provisions intervene), resolved by legislative bodies (Congress for the federal courts, and state legislatures for state courts).
The death penalty is something many countries have long since abolished, consider barbaric, criticize America for, find a violation of basic human rights, and as the Innocence Project has repeatedly documented, is often wrongly applied (and may well have been in the case of Troy Davis).
If you believe Troy Davis was not guilty of the crime for which he was executed, and you live in a state that still has the death penalty, do something about it. Write your elected officials and tell them to abolish it. Join with others and the organizations that are working to bring our country into compliance with the standards of civilized nations.
On the other hand, if you think the death penalty is an appropriate punishment -– at least in some circumstances -– just hope and pray that you, your family members and friends never find yourselves wrongly accused.
Although if you do, probably you can at least count on the anti-death-penalty folks to petition on behalf of saving your life as well.