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Bob Barr Defends Troy Davis:

Former Republican Representative (and Libertarian presidential candidate) Bob Barr has an op-ed in today's New York Times calling on the Supreme Court to grant the habeas petition filed on behalf of Georgia death row inmate Troy Davis.

Mr. Davis is facing execution for the 1989 murder of an off-duty police officer in Savannah, Ga., even though seven of the nine witnesses have recanted their testimony against him. Many of these witnesses now say they were pressured into testifying falsely against him by police officers who were understandably eager to convict someone for killing a comrade. No court has ever heard the evidence of Mr. Davis's innocence.

After the United States Court of Appeals for the 11th Circuit barred Mr. Davis from raising his claims of innocence, his attorneys last month petitioned the Supreme Court for an original writ of habeas corpus. This would be an extraordinary procedure — provided for by the Constitution but granted only a handful of times since 1900. However, absent this, Mr. Davis faces an extraordinary and obviously final injustice.

According to Barr, federal courts have read the Anti-Terrorism and Effective Death Penalty Act (AEDPA) too narrowly, and the law was not intended to preclude habeas petitions asserting actual innocence.

Grant Gould (mail):
So how many votes do you think you could get in the Supreme Court for the proposition, "it is not unconstitutional to execute the innocent"?

Because as far as I can tell that's the underlying issue — whether innocence is relevant to the constitutionality of an execution — and as far as I can tell the Court doesn't think it is. It seems any number of "compelling interests" are more important to due process than silly questions of guilt, innocence, life, or death.
6.1.2009 9:26am
Patrick216:
I really do not understand the squeamishness about the death penalty. Our criminal justice system has a certain false conviction rate associated with it. Sometimes it's because of good faith screwups (mistaken eye-witness identification for one), othertimes it's because of misconduct (which appears to be the case here).

Errors are bad, of course: I'm not disputing that. And we should use every means at our disposal (procedural, technological, and scientific) to get that error rate as close to zero as we can.

But what galls me is that we make all this fuss over the death penalty because of the possibility of a wrongful conviction, yet we do not express a single ounce of concern about sentencing criminals to 20 or 30 years in prison, or even to life sentences. Yes, the death penalty is "final," but so too is a life sentence or an "effective" life sentence of 20+ years. Not only that, but I'm willing to bet money the error rate of non-capital offenses is higher than that of capital offenses. So we spend hundreds of thousands of dollars and decades trying to disrupt a single death sentence, which resources could be used to potentially free dozens of other "wrongly convicted" cons doing 20-life for a variety of crimes.
6.1.2009 9:33am
Justin (mail):
Grant,

I believe Scalia explicitly has said that proposition is correct. I bet Thomas and Roberts would agree. So, 3 at least. But Alito and Kennedy are also going to be more concerned about creating proper procedures and jurisdiction under the AEDPA, as well as actually deciding the case as brought by the lawyers. That means there are probably at least 5 votes in the Court for the proposition that it is irrelevant whether it is constitutional, as federal courts have been deprived of habeus review of the question. Score another one for the AEDPA.
6.1.2009 9:33am
loki13 (mail):
Grant,

First, you should realize that I am not an opponent of the death penalty. However, if you believe that the death penalty should be allowed, there is some question about what is the appropriate role of appellate courts in general (and SCOTUS in particular) in reviewing claims of factual innocence (as opposed to reviewing errors in applying the law or procedural issues).

If you understand the wheels of justice turn slowly, then you also realize that most death panlty trials are fairly involved processes that occur some time after the incident (homicide) in question. All reasonable issues of factual innocence should be brought to the trial court, which is in the best possible position to weight the competing factors. To have an appellate court, often with a decades-old record, try to re-weigh "dead" testimony to make a new factual determination of fact is a difficult burden. In addition, having them to do so presents a question of what constitutes a sufficient basis for the re-weighing- should they do so every time a new fact emerges? Wouldn't this be an endless process? Is there any value to finality? Isn't the correct outlet for claims of factual innocence the pardon process?

Anyway, that would be the argument. I am against the death penalty, so I don't have to worry about it.
6.1.2009 9:37am
loki13 (mail):
correction-

first sentence should read:

First, you should realize that I am an opponent of the death penalty.

Must drink more coffee.
6.1.2009 9:47am
Houston Lawyer:

Many of these witnesses now say they were pressured into testifying falsely against him by police officers who were understandably eager to convict someone for killing a comrade.


I wonder if the alleged pressure by the police to testify was anywhere near as intense as the pressure to recant. How much weight should the courts give recantations of testimony made years after the trial absent evidence showing that testimony to be actually false?
6.1.2009 9:54am
Justin (mail):
"How much weight should the courts give recantations of testimony made years after the trial absent evidence showing that testimony to be actually false?"

This is the weirdest thing I've actually read this morning. Isn't the recantation itself evidence that it's actually false?
6.1.2009 9:59am
Cornellian (mail):
So how many votes do you think you could get in the Supreme Court for the proposition, "it is not unconstitutional to execute the innocent"?

Roberts was asked a question like this at his confirmation hearing and he answered something like "when? when the accused proclaims his innocence ten years after the trial, after the last of the prosecution witnesses has died and says he wants a new trial now?"

I think he had a point.

Still, it seems to me to be a bit late in the day for Rep. Barr to start being concerned about due process in the criminal justice system.
6.1.2009 10:01am
Bob from Ohio (mail):

Isn't the recantation itself evidence that it's actually false?


Why? The earlier statement can be true and the recanatation false.
6.1.2009 10:06am
studentactivism.net (www):
we make all this fuss over the death penalty because of the possibility of a wrongful conviction, yet we do not express a single ounce of concern about sentencing criminals to 20 or 30 years in prison, or even to life sentences.

Plenty of people express plenty of concern about that. But for particularly heinous crimes, there isn't a workable alternative to long prison sentences that ameliorates the problem. Long prison sentences (w/o possibility of parole, in some cases) are such an alternative to the death penalty.

I'm willing to bet money the error rate of non-capital offenses is higher than that of capital offenses. So we spend hundreds of thousands of dollars and decades trying to disrupt a single death sentence, which resources could be used to potentially free dozens of other "wrongly convicted" cons doing 20-life for a variety of crimes.

That's just another reason to eliminate the death penalty, in my opinion. To free up those resources for use elsewhere in the system.
6.1.2009 10:11am
Dave N (mail):
Justin,

Actually, appellate courts have held that recantations should be looked at with suspicion. A recantation means that the witness either lied at trial or is lying now. That DOESN'T mean that the trial testimony must be automatically discounted.
6.1.2009 10:12am
Jerry Mimsy (www):
Patrick216: I don't know who you mean by "we", but from my perspective we certainly do express concern over the length of prison sentences. Go over to Families Against Mandatory Minimums for an example. We also express concern over how unlivable our prisons have become and are becoming.

Regardless, I don't see the logic in "prison sentences last a long time" + "sometimes we convict innocent people" = "we should be less squeamish about the death penalty".
6.1.2009 10:20am
Johnny Canuck (mail):
A recantation means that the witness either lied at trial or is lying now.

And how is it moral to rely on testimony of a witness whom you know is unreliable?
6.1.2009 10:26am
Dave N (mail):
I would note that Barr was a member of the House Judiciary Committee when AEDPA was passed in 1996. The Supreme Court had held in 1993 that there is no free-standing claim of actual innocence. Herrera v. Collins, 506 U.S. 390 (1993).

It seems that if, as Barr suggests, that AEDPA has been read incorrectly and that "actual innocence" claims are justiciable, Congress could have included language overruling Herrera in the AEDPA.
6.1.2009 10:32am
MarkField (mail):

Why? The earlier statement can be true and the recanatation false.


Yes, but it's still accurate to say that the recantation is itself "evidence" that the earlier statement was false. Justin was right to question HL's original wording.
6.1.2009 10:38am
Dilan Esper (mail) (www):
Dave:

You misread herrera, which assumes it is unconstitutional to execute the innocent. Scalia was quite ticked off that the court did this and issued a separate opinion (offensively) arguing that executing the innocent is perfectly constitutional. (A great example of why obama is right about empathy.)

There were at that time only 2 votes in favor of the proposition. Perhaps there are more now.

I suspect, however, that the scope of any such constitutional right will be so narrow as to be nearly unusable.
6.1.2009 10:40am
Dave N (mail):
Johnny Cannuck,

A witness at trial is subject to cross-examination, so that both sides have an opportunity to show bias, interest, motive, as well as to explore discrepencies in testimony.

A recantation, on the other hand, is someone after the fact saying he or she did not testify truthfully (or charitably, that this person had been "mistaken" in testyfing).

Assuming the person testified truthfully at trial, a variety of factors, including pressure from the defendant's family and friends, can lead to recantations.

Moving away from murder prosecutions for a minute, in domestic violence prosecutions there frequently are recantations between the time of the initial incident/arrest and the time of trial. This is why police officers are trained to get complete statements and do thorough investigations at the time of the incident.

In DV cases, the victim will often come into court and lie. However, the Rules of Evidence make "prior inconsistent statements" substantive evidence and the prior statements are admissible under that theory.
6.1.2009 10:43am
Fub:
Houston Lawyer wrote at 6.1.2009 9:54am:
I wonder if the alleged pressure by the police to testify was anywhere near as intense as the pressure to recant.
I have a serious question about that question: Who, besides police or other government actors, has the actual ability to exert such powerful pressure upon seven different people?

I could believe that a powerful organized crime group could do so. But I can't really think of any plausible non-criminal and non-governmental individual or organization of ordinary people who would have anything even remotely approaching the ability of government actors to do so.

So, who are those hypothetical people or organizations that are exerting such intense pressure upon witnesses?
6.1.2009 10:50am
Dave N (mail):
Justin,

I just re-read Herrera. I stand by my statement that Herrera held that there is no "free-standing" claim of actual innocence. Whether it is unconstitutional to execute an innocent person is a question the Court did not answer. Rather it did an "assuming for the sake of argument" analysis.

Given my larger point in that post, the "evidence" of actual innocence in Herrera is similar to the "evidence" in this case--and had Congress wanted to overruled Herrera it could have done so when it passed the AEDPA.
6.1.2009 11:04am
Jon Roland (mail) (www):
Leaving aside the small matter that U.S. courts, including the Supreme Court, are courts of equity as well as of law (making actual innocence part of their jurisdiction), there are several constitional issues here.

First, the recantations are not confessions of error, but testimony of arguably criminal intimidation by police and prosecutors. Lying under duress is not quite the same as lying for gain. Many discussants seem to dismiss testilying out of hand, and imagine police and prosecutors are the conscientious fellows depicted on television, but the reality is that in many jurisdictions they differ little from the criminals they go after, or are even worse. So violation of due process at the trial level is a key constitutional issue and a proper matter for the SC.

Second, there is also the minor matter (which only libertarians seem to perceive) that the AEDPA is unconstitutional. Rep. Barr has had an epiphany about such things since he sat on the Judiciary Committee. (I have personally discussed these issues with him.) It is unconstitutional to thus suspend habeas corpus, and the only provision of the Constitution that could authorize parts of the Act would be the Piracy Clause, and proposents of the Act have not laid that basis for it.

As I propose in my Draft Amendments, piracy should be clarified:


"Piracy" shall consist only of warlike acts committed by a foreign nonstate actor, or by a domestic nonstate actor against foreign persons or property. Letters of marque and reprisal make the person to whom they are issued a state actor, and under a declaration of war all citizens are to be regarded as state actors with respect to the foreign state defined in the declaration.

By that definition the offense in question does not qualify.
6.1.2009 11:08am
Jon Roland (mail) (www):
By the way, when I use the word "arguably", contrary to Eugene's preferences on the use of the term, I mean I would argue it is criminal but don't want to make that argument now.

Also, correcting my mistyping of "constitutional". The old fingers and the keyboard sometimes don't get along.
6.1.2009 11:12am
Dave N (mail):
Jon Roland,

I always enjoy how various interest groups (in this case the Libertarian Party) claim something is unconstitutional without mentioning, even in passing, that the courts ruling on the issue have held otherwise.

It is certainly fair to criticize these opinions. It is intellectually dishonest to ignore them completely.
6.1.2009 11:21am
Dave N (mail):
Jon Roland,

For example, if you want to claim AEDPA is unconstitutional, you need to square that argument with Felker v. Turpin, 518 U.S. 651 (1996).
6.1.2009 11:33am
Nathan_M (mail):

A witness at trial is subject to cross-examination, so that both sides have an opportunity to show bias, interest, motive, as well as to explore discrepencies in testimony.

A recantation, on the other hand, is someone after the fact saying he or she did not testify truthfully (or charitably, that this person had been "mistaken" in testyfing).

Even if all this is true, surely it is inaccurate to say that a witness's recantation provides absolutely no evidence that the witness's testimony was untruthful or mistaken.

Other things being equal, don't you think it is more likely that a witness who says he gave truthful testimony actually did so than a witness who lied at trial? No doubt some recantations are, for whatever reason, false but that does not mean all recantations are meaningless.
6.1.2009 11:36am
Dave N (mail):
The problem with post-trial recantations is that there are absolutely no controls--unlike during trial, when both sides have the ability to confront the speaker about inconsistencies great and small in the testimony. The jury then has the opportunity to judge witness credibility.

I should also mention something that the Supreme Court mentioned in Herrera: Because the jury has spoken and found the defendant guilty, that person is no longer given the presumption of innocence. There has been a finding of guilt.

As a result, the person challenging a conviction has the burden of persuasion, not the State.
6.1.2009 11:45am
Ryan Waxx (mail):

That's just another reason to eliminate the death penalty, in my opinion. To free up those resources for use elsewhere in the system.



False. Anti-death penalty advocates have admitted that if they get their way, they'll simply move on to wage the same battles over 'life in prison'.

Kind of like the way that MADD didn't pack it in when most of their legislative goals were met... these advocacy groups don't disband when they achieve their goals, they simply become more inflexible and demanding.
6.1.2009 11:47am
Dilan Esper (mail) (www):
Dave:

You aren't being honest about herrera. Scalia WANTED the court to hold there was no constitutional protection against executing the innocent, but the court refused to go that far.

Obviously you would favor such a rule. Perhaps you would have a different view if you were the condemned innocent person.
6.1.2009 12:00pm
SeaDrive:

Kind of like the way that MADD didn't pack it in when most of their legislative goals were met..


Neither did the March of Dimes, but perhaps you can feel more kindly about that.

IANAL, and I lack judicial temperament in any case, but if I were a Justice, I would be very irked when one of these death sentence cases came to the court. Almost without fail, they feature a large cast of people behaving badly including not just the convicted party and low-life witnesses, but obdurate prosecutors, untrustable (i.e. possibly lying, possibly not) police, third party interest groups, etc. I take comment from the Chief Justice to mean that the question of innocence is moot in these cases.
6.1.2009 12:02pm
loki13 (mail):

False. Anti-death penalty advocates have admitted that if they get their way, they'll simply move on to wage the same battles over 'life in prison'.


Fascinating. I am one of those anti-death penalty "advocates" of whom you write. And, amazingly enough, I don't believe the position you ascribe to me. I have two major problems with the death penalty:

1. Pragmatic- I don't think, with necessary safeguards in place, it is particularly cost effective.

2. Non-pragmatic- I don't believe in delegating to the state the power to execute people (this is a rather involved argument that I won't get into here). In short, "l'etat, c'est moi" and I choose not to kill unless I have personal knowledge of the guilt or innocence. Sort of an advanced non-delegation doctrine.

But I am all for life in prison (no possibility of parole) for heinous crimes. There are evil people out there. And they should not be a part of our society. Who are these mythical windmills against whom you tilt?
6.1.2009 12:09pm
Jon Roland (mail) (www):
Dave N:

I always enjoy how various interest groups (in this case the Libertarian Party) claim something is unconstitutional without mentioning, even in passing, that the courts ruling on the issue have held otherwise.

I don't speak for the Libertarian Party (although I am on the Platform Committee and contribute much of the Platform content).

And I don't mention contrary court opinions because I don't respect them. Do you cite the contrary opinions of kindergardeners on how to execute a Mars mission? Most of them are based on long lines of precedent that got it wrong, and I choose not to take the time to deconstruct them all the way back. I have several web sites and blogs for that.
6.1.2009 12:42pm
Dave N (mail):
Jon Roland,

Respect them or not, they are there. I don't respect Roe v. Wade, but I don't hold my breath and pretend the decision doesn't exist.
6.1.2009 1:29pm
Dave N (mail):
I also think it is the height of arrogance to compare the United States Supreme Court, whether you agree with a decision or not, to "the contrary opinions of kindergarteners."
6.1.2009 1:32pm
MarkField (mail):

I am one of those anti-death penalty "advocates" of whom you write. And, amazingly enough, I don't believe the position you ascribe to me.


Ditto.
6.1.2009 1:48pm
Jon Roland (mail) (www):
Dave N:
Respect them or not, they are there.

Their power depends entirely on people like you and me respecting their decisions and complying with them. If people ignored them their decisions would be nothing but opinions like those of anyone else. I choose to respect their opinions, like those of anyone else, only when they are correct, and ignore them when they are not. I urge others to do the same.

You may notice that there are many others who take the same stance, and our numbers are growing rapidly. If we want court decisions respected, we all need to pressure them to get it right, or we will have chaos.
6.1.2009 1:54pm
Dave N (mail):
Dilan Esper,

Herrera noted, "Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." 506 U.S. at 400.

I believe my 11:04 post accurately reflects the Herrera holding, including my note that the Court did not address whether it was Constitutional to execute someone "actually innocent," but rather assumed that was the rule for the sake of argument.

If you would point to actual language from Herrera where I am being "dishonest," I would be most enlightened.
6.1.2009 1:59pm
Sid the warmonger (mail) (www):
I am dubious about recantations and juror dissentions after the fact. I have performed both. CAVEAT - I am an officer in a National Guard military police unit.

There are several reasons why the witnesses recanted. They know the family. They are thinking "it could have been me". They might think the other suspect is a jerk and more deserving of punishment. It could be they don't want to be implicated in ending someone's life. Knowing that another human will be executed based on your testimony could cause a witness to recant.

Why aren't the recanting witnesses lining up to have the other suspect arrested? Where is their cry for the victim's family? If they want justice to be done, why are they not telling us who killed the off-duty officer?
6.1.2009 2:10pm
Jon Roland (mail) (www):
Dave N:

I also think it is the height of arrogance to compare the United States Supreme Court, whether you agree with a decision or not, to "the contrary opinions of kindergarteners."

Arrogance is trying to treat the fields of politics, law, and economics as though they are not bound by the laws of nature, but ultimately nature provides the ultimate judgment over them all. And that is likely to be very bad for all of us, not just reliance interests.
6.1.2009 2:20pm
Dilan Esper (mail) (www):
Dave:

The Court held: (1) that it had never in the past recognized a freestanding claim of actual innocence as cognizable on habeas, and (2) that it would not recognize one under the facts of Harrera. The Court DID NOT, however, hold that such a claim, under a stronger set of facts, could never be cognizable. That is what Scalia wanted, and the Court didn't do that, which is why Scalia got pissed off.
6.1.2009 2:34pm
ArthurKirkland:
If innocent defendants are at risk of execution consequent to manipulated testimony, manufactured physical evidence, concealed evidence and the like, why are law enforcement personnel (police officers, prosecutors) not at risk of murder/attempted murder/false imprisonment charges for prosectorial misconduct?

Why would/should/could coaching false testimony, or concealing evidence, or manufacturing disingenuous evidence in pursuit of an unjustified execution not constitute attempted murder?

An even playing field is the only just playing field.
6.1.2009 3:23pm
martinned (mail) (www):

Why would/should/could coaching false testimony, or concealing evidence, or manufacturing disingenuous evidence in pursuit of an unjustified execution not constitute attempted murder?

I kid you not, that one was on the most recent season of Law &Order.
6.1.2009 3:49pm
Justin (mail):
False. Anti-death penalty advocates have admitted that if they get their way, they'll simply move on to wage the same battles over 'life in prison'.


Fascinating. I am one of those anti-death penalty "advocates" of whom you write. And, amazingly enough, I don't believe the position you ascribe to me.

Ditto again.
6.1.2009 4:19pm
Bill Poser (mail) (www):

The problem with post-trial recantations is that there are absolutely no controls--unlike during trial, when both sides have the ability to confront the speaker about inconsistencies great and small in the testimony. The jury then has the opportunity to judge witness credibility.


David N,

This is true, but only if the recantations must be accepted at face value. Is it not the case that a court can hold an evidentiary hearing in which the recantors will be subject to cross-examination before overturning the verdict?

Bill
6.1.2009 4:23pm
Hippo (mail):
Presumably Davis was convicted at trial, where he had the opportunity to present a defense. So what rhetorical trickery is Bob Barr using when he says "No court has ever heard the evidence of Mr. Davis's innocence."?
6.1.2009 4:50pm
ShelbyC:

How much weight should the courts give recantations of testimony made years after the trial absent evidence showing that testimony to be actually false?


Um, I would imagine courts should give them a signifigant amount of weight, no?
6.1.2009 6:51pm
David M. Nieporent (www):
David N,
This is true, but only if the recantations must be accepted at face value. Is it not the case that a court can hold an evidentiary hearing in which the recantors will be subject to cross-examination before overturning the verdict?
Bill, for the sake of clarity, that's Dave N. "David N" is ambiguous.
6.1.2009 10:13pm
David M. Nieporent (www):
How much weight should the courts give recantations of testimony made years after the trial absent evidence showing that testimony to be actually false?

Um, I would imagine courts should give them a signifigant amount of weight, no?
No. Shouldn't, and don't.
6.1.2009 10:14pm
Dave N (mail):
David M. Nieporent,

I agree with both your points. However, out of fairness to Bill Poser, I was the only one commenting at the time he responded and he was directly responding to an earlier post of mine.

But I will say it again, lest people be confused: David M. Nieporent and I are two separate people (this isn't an "LM"/"Leo Marvin" situation) even though we frequently agree.
6.2.2009 1:25am
Ledra:

Why aren't the recanting witnesses lining up to have the other suspect arrested? Where is their cry for the victim's family? If they want justice to be done, why are they not telling us who killed the off-duty officer?


The witnesses who have recanted could be charged with perjury, which in Georgia, carries a mandatory life sentence, and yet they still came forward. And yes, quite a few directly implicate Sylvester Coles as the real murderer, in addition to five others who did not testify at trial. Presently, nine individuals either saw Coles murder Officer MacPhail or heard him confess to it. Mr. Coles is one of the two remaining witnesses who have yet to recant, and is also the only one who admitted, only after Troy was arrested, that he had a gun of the same caliber that killed MacPhail that night, but oddly, he lost it right before MacPhail was murdered. Coles was never questioned, his home never searched nor was he tested for gunshot residue. As far as "lining up to have the other suspect arrested," do their affidavits not function as just that?

There's a lot of information on the website www.troyanthonydavis.org.
6.2.2009 3:52am
Ricardo (mail):
I don't see the problem with a constitutional right for innocent people to not be executed by the state (I never thought I would actually have to write those words). Death penalty advocates like to say that there is no evidence that an innocent person has ever been executed in the U.S. since executions resumed in 1976. If so, we can expect an actually innocent person who has exhausted every other avenue of appeal to only come around every 20 or 30 years. I don't see that shutting down the court system any time soon.

And in response to this comment:

Presumably Davis was convicted at trial, where he had the opportunity to present a defense. So what rhetorical trickery is Bob Barr using when he says "No court has ever heard the evidence of Mr. Davis's innocence."?

The evidence against Davis apparently consisted solely of eyewitness testimony. If the conviction relied solely on forensic evidence and a number of years later, the lab technician assigned to case said, "actually I switched the samples. oops..." that would seem to be grounds for a new trial. Obviously, new information that was not available at the time of the trial -- the witness recantations -- is evidence of Davis's innocence that could not have been provided at trial.
6.2.2009 6:49am
Floridan:
Ryan Waxx: "False. Anti-death penalty advocates have admitted that if they get their way, they'll simply move on to wage the same battles over 'life in prison'."

Since you use the plural, I would be interested if you could name two individuals who have articulated this goal.
6.2.2009 2:19pm

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