Executed Until Proven Guilty

On Monday, the Georgia State Board of Pardons and Paroles sealed the fate of Troy Anthony Davis when it rejected his final plea for clemency. Davis was convicted for the 1989 murder of a police officer, but his guilt was never certain; seven of nine eyewitnesses in the case recanted after the trial. One of the witnesses has actually bragged to people that he was the one who committed the murder. Last night, Davis was executed without the state having ever decisively proved his guilt. It is highly probable that the state of Georgia -- with last-minute permission from the Supreme Court -- executed an innocent man.

The execution of Troy Davis is evidence of one of the holes in our criminal-justice system: reliance on eye-witness testimony despite mountains of evidence that it is untrustworthy and often leads to wrongful convictions. Of course, pardons, review panels, and appeals courts are in place to save people when the system fails. But Davis's case is evidence that even when someone's guilt is in doubt, the system is capable of executing them anyway. The need for reform is based just as much on a faulty system as on the unwillingness of those who run the system to correct errors when they occur.

Davis was convicted of murder despite a complete lack of physical evidence. At the time, eyewitness testimony was generally seen as highly reliable, and so it is understandable that the jury returned a guilty verdict. We know now -- and in plenty of time to stay Davis's execution -- that eyewitness testimony uncorroborated by physical evidence is, in fact, not a reliable form of evidence at all. New advancements in DNA technology have exonerated a growing number of people who were wrongly convicted, making it clear that eyewitness testimony is seriously flawed. A 2008 study of all cases in which the defendant was wrongfully convicted since 1989, by Brandon Garrett of the University of Virginia School of Law, found that there were erroneous eyewitness identifications in 79 percent of the cases in which prisoners were exonerated by DNA evidence.

In fact, eyewitness testimony has become such an obvious flaw in the criminal-justice system that less than a month ago, the State Supreme Court of New Jersey issued a landmark ruling on the unreliability of eyewitness testimony and provided guidelines on how to use such evidence going forward. The court's opinion in State v. Henderson is sure to make ripples and, let's hope, change precedent in other states. The opinion carefully assessed contemporary research, making it clear that existing Supreme Court standards for evaluating eyewitness testimony are dangerously obsolete. As Chief Justice Stuart Rabner wrote for the court, "From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country."

Particularly irksome is that the safeguards whose necessity State v. Henderson makes clear were conspicuously absent from the Davis case. Eyewitness testimony is most reliable when gathered by a process that is careful and neutral, preferably administered by officers unaware of who the target suspect is. This is because the incentives to produce testimony favorable to the working theory of the police are overwhelming, and even officers acting in good faith can subtly bias questions, lineups, and photo arrays against the suspect.

According to several of the witnesses who have recanted their testimony, the eyewitness evidence against Davis was gathered by the kind of high-pressure police tactics that are especially likely to produce erroneous identifications. Unfortunately, it's not simply the stubbornness of judges and state officials that made a retrial or commuted sentence for Davis elusive. Various legal developments in the 1990s have made it  difficult for new evidence about the unreliability of eyewitness testimony to get Davis and others like him a new trial. The crucial 1993 Supreme Court holding in Herrera v. Collins initiated an era in which the ability of prisoners to bring habeas corpus petitions based on new evidence of innocence after being convicted by state courts was sharply reduced. In an infamous concurrence, Supreme Court Justice Antonin Scalia asserted that "There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction." According to the Supreme Court's leading conservative voice, executing an actually innocent person does not raise constitutional problems. Chief Justice William Rehnquist's majority opinion left a little more leeway for habeas petitions, but not much.

Compounding the effects of a hostile Supreme Court, in 1996 President Bill Clinton signed the Anti-Terrorism and Effective Death Penalty Act, which further reduced the ability of potentially innocent defendants to assert their rights in federal court. A post-Oklahoma City bombing response that followed the common pattern of using a horrible tragedy as a pretext for pushing through pre-existing priorities, the AEDPA made it much more difficult for prisoners who -- like Davis -- were presenting new evidence rather than claiming clear violations of federal law.

Given these legal restrictions, the options for getting Troy Davis a new trial were never good. No effective remedy in the courts exists for his type of case, where there are severe doubts about the guilt of a death-row inmate that do not quite rise to clear, affirmative evidence of innocence. Davis was actually granted a federal evidentiary hearing in 2009 by the Supreme Court (over a dissent by Scalia). But faced with a high burden of proof that requires "by clear and convincing evidence, that no reasonable juror would have convicted him in light of the new evidence," Davis's claims were rejected.

Of course, the possibility that a claim raising serious possibility of innocence may fall through the cracks of existing law and precedent is precisely what the clemency and/or the pardon process is for. The Georgia parole board's refusal to stop Davis's execution despite the obvious unreliability of the evidence that led to his conviction is a misuse of the pardon process. The pardon is not exoneration; it is a fail-safe with which the state can correct for the shortcomings of the judicial system.

We cannot be sure that Davis is innocent, but we certainly can be sure that convicting people solely on (largely recanted) eyewitness testimony will lead to innocent people being executed. The New Jersey ruling offers a template for how to improve the system in the future and move away from unreliable eyewitness evidence-based rulings. Future reforms, however, are of little consolation to Troy Davis and his family. The State of Georgia cannot claim that it doesn't know about the unreliable nature of the evidence that convicted Davis. That they executed him anyway is further proof that the system itself must be reformed, because the individuals in charge of catching those wrongfully convicted are -- at least in Davis's case -- neglecting to do their job.

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