Reagan's FBI chief: Don't execute Troy Davis

I agree, and I say that as someone who supports capital punishment. Hundreds of thousands of people have signed petitions calling for clemency for Davis but I’m spotlighting Sessions’s op-ed from a few days ago to emphasize that even some prominent law-and-order types are on the defense’s side in this one.

What quickly will become apparent is that serious questions about Davis’ guilt, highlighted by witness recantations, allegations of police coercion and a lack of relevant physical evidence, continue to plague his conviction. Last summer, an extraordinary hearing ordered by the U.S. Supreme Court to answer these questions instead left us with more doubt.

At Davis’ evidentiary hearing, witnesses called by Davis recanted trial testimony and made allegations of police pressure. Others testified that an alternative suspect had confessed to them that he committed the crime. One eyewitness testified, for the first time, that he saw this other suspect, a relative of his, commit the crime. Police witnesses for the state of Georgia alternatively asserted that the original trial testimony was the true version of events and that it was elicited without coercion.

Some of these same witnesses also had testified at Davis’ trial but have since recanted their trial testimony. The judge at the evidentiary hearing found their recantations to be unreliable and, therefore, found Davis was unable to “clearly establish” his innocence. The problem is that the testimony of these same witnesses, whom the judge had determined were less believable, had been essential to the original conviction and death sentence.

What the hearing demonstrated most conclusively was that 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.

The Georgia Board of Pardons and Parole denied Davis’s latest, and likely last, attempt for clemency last night. Davis offered to take a polygraph today to provide further evidence of his innocence but the Board rejected that too. Under the Georgia constitution, Governor Nathan Deal has no power to halt the execution. Only the Board or the Georgia Supreme Court can intervene and neither seems inclined to do so. If they don’t, he’ll be dead within two hours of my writing this. The execution’s set for 7 p.m. ET.

I think he’s probably guilty. Read Erick Erickson’s post at Red State to see why, then read Wikipedia’s overview of the legal proceedings in the case dating back to 1989. It’s undeniably true that this guy has had every procedural opportunity and then some to have the sentence overturned, including a new evidentiary hearing at the district court level last year ordered by the U.S. Supreme Court. The problem for appellate courts, though, is that they’re more or less stuck with the findings of fact adduced at trial, and as Sessions notes, those findings were based in part on statements from witnesses whom we now have reason to believe were unreliable — including one who claims that the other suspect in the case confessed to him that he committed the murder, not Davis. Even the judge at the new evidentiary hearing, in ruling against Davis, found some of the recantations to be wholly or partly credible:

“The burden was on Mr. Davis to prove, by clear and convincing evidence, that no reasonable juror would have convicted him in light of the new evidence,” the judge said…

The judge examined each of the seven recantations and concluded that only one was entirely credible. But, he said, the credible recantation came from a witness whose earlier trial testimony was “patently false” and was thus not important to the conviction…

Two other witnesses, he said, had offered recantations that were partly credible. But their testimony would “only minimally diminish the state’s case,” he said.

The other four recantations did not diminish the state’s case against Davis at all, the judge said, because a reasonable juror would disregard the recantation rather than jettison the earlier testimony

Fair enough, but the only way to know for sure what the jurors at Davis’s original trial would have done with the recantations is to travel back in time and remove the initial testimony. (One of the judges on the Eleventh Circuit who heard Davis’s appeal from the evidentiary hearing thought he deserved a new trial.) As it is, we’re stuck with guesswork as to how the jury would have ruled based on the new evidence. But wait, you say — what about the alleged confession from the other suspect in the case? The judge who presided over the evidentiary hearing refused to consider it because Davis’s defense team never called the other suspect to the stand. His lawyers claimed they had tried to subpoena the suspect but couldn’t find him in time; the judge suggested that they had deliberately avoided calling him because they knew he would rebut their accusation on the stand. Whatever the reason, the credibility of that confession remains unresolved to this day.

The judge at the evidentiary hearing concluded that, “While Mr. Davis’s new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors.” That’s an excellent reason to keep him locked up while he tries to prove his innocence, but “additional” doubt — even if it’s minimal — is an equally fine reason not to apply the needle lest you deny him the chance, especially when you have the shadow of someone else’s confession looming over the proceedings. Like Guy Benson says, “There are no do-overs here.” This, in fact, is how I suspect most opponents of capital punishment are made — there’ll always be some who blubber at the thought of the state imposing lethal justice on the Ted Bundys of the world, but the rest move by inches as nagging doubts in cases like this drag them towards abolition. Even if Davis is probably guilty, why not save lethal injection for the guys who are definitely guilty? I’ll never understand that.