Close Enough Isn't Good Enough

The following opinion was published by the Huffington Post on August 27, 2010.

Close Enough Isn't Good Enough
by Andrea Lyon
Author, Attorney, Professor of Law: DePaul University

August 27, 2010

Yesterday Judge William T. Moore Jr. of the Federal District Court in Georgia denied Troy Davis relief from his death sentence. This is the case that gained international as well as national attention, as the execution of a man who may very well be innocent loomed. In fact, the United States Supreme Court gave him a rare chance to clear his name when a year ago, the Supreme Court directly granted Mr. Davis a federal hearing to put his claim to the test -- a chance afforded no other American in at least 50 years. Mr. Davis had tried for many years just to get a hearing to present new evidence would that he said would clear his name in the 1989 killing of Mark MacPhail, an off-duty Savannah police officer. The Judge concluded after a lengthy 112 page opinion that "Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors."

What is interesting about the opinion is that the judge assumes that it would be unconstitutional to execute someone who is innocent, although the United States Supreme Court has not ever quite said so. There is then a long involved and technical discussion of which of three standards should apply in making such a determination, lengthy recitations of various witness's statements, recantations, and his conclusion that Mr. Davis has not met the standard to show his innocence. True, there are recantations from most of the witnesses against him, but the law "disfavors" consideration of recantations, he opines, and besides the pressures put on these witnesses either from internal bias or pressure from the police, don't matter. What is missing from the opinion is a discussion of the fact that nearly everyone recanted, that there is no physical evidence linking Mr. Davis to the crime, or any real consideration as to whether Mr. Davis, Mr. MacPhail's family or the jury were deprived of something important -- a fair trial where all the facts were before them, rather than hidden. In other words, the cumulative effects of all of this error are brushed aside, and the technical rules triumph.

The case against Mr. Davis rested on the testimony most likely to result in a wrongful conviction -- that of eyewitnesses. In fact eyewitness misidentification accounts for 75 percent of wrongful convictions in over 200 DNA exonerations.

I have written before about the triumph of technicalities which may very well imprison, or even execute the innocent or someone whose mail got lost. ("Justice Trapped in a Technical Web", and "A Technical Death"). I recognize that I was not in the courtroom and did not hear the testimony presented to the judge -- but others were, and their impressions are very different. Here is what we should all be worried about -- sure, there is a place for finality in our system. A convicted person should not get to go back to court an infinite number of times. But if technical rules prevent him from presenting relevant, reliable evidence when he discovers it -- for example if a witness gets an attack of conscience about a lie (in this case a deadly lie) as did Kevin McQueen, one of the seven witnesses who recanted his testimony, testifying that he implicated Mr., Davis originally at his trial because he was mad at him, shouldn't there be a way to present that and have it fairly considered in the context of the totality of the evidence before we execute a man? McQueen testified that his earlier testimony that Mr. Davis said he shot someone was a lie. "The man did not tell me he shot anyone. Period." When asked what he hoped to gain by his testimony, he said, "peace of mind."

None of us should feel that same peace of mind about an execution under these circumstances, whatever our feelings might be about the death penalty. An execution is irrevocable, and close enough isn't good enough.