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Nine Executioners

Nat Hentoff

"The assessment of the death penalty, however well designed the system for doing so, remains a human endeavor with a consequent risk of error that may not be remediable." - Judge Carolyn King of the 5th Circuit Court of Appeals, 2006.

Having reported on the Supreme Court in books and columns for decades, I am well aware of King's assessment, but never before have I seen such an outright denial of fundamental justice as, on Oct. 14, when the Supreme Court sent Troy Anthony Davis to be executed.

This case, Davis' lawyers told the Supreme Court in July, "allows this court an opportunity to determine what it has only before assumed: that the execution of an innocent man is constitutionally abhorrent." In this country and around the world, the basic fairness of Davis' conviction has been questioned by, among others, conservative former Congressman Bob Barr, a strong supporter of the death penalty; Pope Benedict XVI; and Archbishop Desmond Tutu of South Africa.

Davis was convicted in 1991 of murdering an off-duty Savannah, Ga., police officer in 1989.

I have been most impressed by a statement from William Sessions, the director of the FBI under President Reagan, the elder George Bush and Bill Clinton: "Troy Anthony Davis has been on death row in Georgia for more than 15 years for the murder of a police officer. ... I believe that there is no more serious violent crime than the murder of an off-duty police officer who was putting his life on the line to protect innocent bystanders." However, in the case of 40-year-old Davis, Sessions continued: "The murder weapon was never found, and other important physical evidence was missing. Key witnesses made inconsistent statements, and seven out of the nine non-police witnesses have now recanted or changed their original testimony, some stating that they had been pressured by the police to implicate Davis." Moreover - and I write this as I found out that an execution date for Davis has been set for Oct. 27 in Georgia - the Supreme Court, our ultimate decider of due process - had also ignored that, Sessions emphasizes, "One of the two witnesses who has not recanted his testimony has now been implicated as the real murderer by two witnesses at trial and four new witnesses." Is that enough reasonable doubt? Not for the Supreme Court. There's more. Did Davis, during his trial, receive sufficiently competent legal counsel under our rule of law? Appellate courts have overturned cases when a defendant's lawyer has failed that crucial obligation.

Writes Sessions: "It appears that the quality of legal representation Davis received during trial was, by his own lawyer's account, seriously deficient." Defending Davis was the Georgia Resource Center and, Sessions explains, "A lawyer from the Resource Center stated in an affidavit that 'We were simply trying to avert total disaster rather than provide any kind of active or effective representation."' But nonetheless, the Supreme Court told the state of Georgia to exterminate this man. Sessions' clear, damning analysis of how, despite the Constitution, the High Court rubber-stamped Davis' conviction was published by the Washington-based American Constitution Project. Sessions is a member of its bipartisan Death Penalty Committee. He now reminds us of what the late Chief Justice William Rehnquist - hardly a foe of the death penalty - wrote in 1993: "It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible." Does this exculpate the nine executioners on the Roberts Court in its lethal judgment of Troy Davis? When the Supreme Court, without comment, refused to hear any more from Davis, there was no written record of any member dissenting. This often happens, but there have been times when one or more dissenters were so agonized that they said so on the record. This time, there was silence from even the four "liberal" members of the Court.

In the wee hours, does any member of this Court feel a tug of guilt? They are, after all, human beings, like us. And, though this case has been highly publicized, I detected no shudder among the citizenry at large. They were otherwise occupied with the disintegrating economy and the raucous presidential finale.

Persistently active in trying to save Davis from our justice system has been Amnesty International. Its Southern regional director, Jared Feuer, told The New York Times: "This decision shows how flawed and immoral the death penalty is. The court had been asked to rule on the basic question of guilt and innocence and the constitutional right of an individual to not be executed when there is doubt of his guilt." The doubt is towering. Added Feuer, "The court ducked its obligation." That's too kind. The Court failed the Constitution! There are countries civilized enough to have struck down the death penalty. Maybe, just maybe, Davis will have markedly energized the rising movement in this nation to shut down our death rows.

As for the Roberts Supreme Court, I would serenade it with Hank William's recording of "Cold, Cold Heart" as it continues, despite the warning of the late Justice Harry Blackmun, to "tinker with the machinery of death."


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