USA: ‘Where is the justice for me?’: The case of Troy Davis, facing execution in Georgia

February 1, 2007

USA: ‘Where is the justice for me?’: The case of Troy Davis, facing execution in Georgia

A legal regime relying on the death penalty will inevitably execute innocent people – not too often, one hopes, but undoubtedly sometimes. Mistakes will be made because it is simply not possible to do something this difficult perfectly, all the time. Any honest proponent of capital punishment must face this fact.(5)

Thirty years after the USA resumed executions, any notion that the US capital justice system is free from error or inequity should by now have been dispelled.(6) A landmark study published in 2000, for example, concluded that US death sentences are "persistently and systematically fraught with error".(7) The study revealed that appeal courts had found serious errors – those requiring a judicial remedy – in 68 per cent of cases. The most common errors in US capital cases were "(1) egregiously incompetent defense lawyers who didn’t even look for - and demonstrably missed - important evidence that the defendant was innocent or did not deserve to die; and (2) police or prosecutors who did discover that kind of evidence but suppressed it, again keeping it from the jury." The study expressed "grave doubt" as to whether the courts catch all such error.

In Troy Davis’ case, his appeal lawyers have argued that his trial counsel failed to conduct an adequate investigation of the state’s evidence, including allegations that some witnesses had been coerced by the police, or to present full and effective witness testimony of their own (the prosecution presented 30 witnesses in total, the defence presented six).(8) They have also claimed that the state presented perjured testimony as well as evidence tainted by a police investigation which had used coercive tactics, including against children taken into custody for questioning. As shown below, alleged police coercion is a common theme that emerges from the affidavits that various witnesses have provided since the trial when recanting earlier statements.

Perhaps the starkest indicator of the fallibility of the US capital justice system is the fact that since the US Supreme Court approved new death penalty laws in 1976, more than 100 individuals have been released from death rows around the country on grounds of innocence. The cases of people like Anthony Porter – who came 48 hours from execution in 1998 after more than 16 years on death row in Illinois before being proved innocent by a group of journalism students who happened to study his case – stand as an indictment of a flawed system. In April 2002 in Illinois, the 14-member Commission appointed by the governor to examine that state’s capital justice system in view of the number of wrongful convictions in capital cases there, reported that it was "unanimous in the belief that no system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death".

In similar vein, in January 2007, after a process in which it held five public hearings and took evidence from a wide range of witnesses, a Death Penalty Study Commission established by the New Jersey legislature recommended abolition of the death penalty in that state. The Commission had failed to find any compelling evidence that the death penalty served any legitimate penological purpose, and it concluded that only abolition could eliminate the risk of irreversible arbitrariness and error. New Jersey Death Penalty Study Commission Report, January 2007.(9)

Yet still some maintain that exonerations of condemned inmates are a sign of the system working. Among those who have perpetuated this myth is US Supreme Court Justice Antonin Scalia. Such exonerations, he has contended, demonstrate "not the failure of the system but its success". Justice Scalia added:
"Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum."(10)