Arbitrary death.

On September 21,  Constitution Day, Troy Davis sat in his cell on Death Row in a Jackson, Georgia, waiting to hear if his last-minute appeal to the Supreme Court would be successful in postponing his execution. It was not. He was executed at 11:08 pm, Eastern Standard Time.

I find his execution on Constitution Day to be grimly ironic. (This is even though I know the rights afforded criminal defendants are enshrined in the Bill of Rights, not the body of the Constitution.) What happened to Troy Davis brings into question the entire system of capital punishment in the United States.

For those of you unfamiliar with the case, Davis was convicted in 1989 for the killing of an off-duty police officer. There was no physical evidence tying him to the crime: he was convicted on the word of nine witnesses who claimed to either have witnessed the shooting or that Davis had confessed to them in jail. Over the years seven of the nine have recanted their testimony, in some cases indicated that they had been pressured by police or prosecutors.

In 2009, Davis's case reached the Supreme Court. The Court ordered an evidentiary hearing on the new evidence. The case went back to the district court, which held the evidentiary hearing and found that the recantations were not enough to order a new trial. David was ordered to show that there was no way that a jury would have convicted him.

As Bob Barr, former prosecutor and U.S. Representative said,

Proving innocence is far more difficult than establishing doubts as to one's guilt and flips our system of criminal jurisprudence on its head. Instead of the American system's presumption of innocence and a requirement that the state prove guilt, Davis' evidentiary hearing began with the court presuming guilt and required the condemned to prove his innocence.

Even though the judge in the evidentiary hearing denied Davis a new trial, he conceded the standard was "extraordinarily high."

Davis was unable to meet this nearly insurmountable task. But while he fell short of "proving" his innocence, he established doubts as to his guilt, prompting the judge to concede the state's case against him was "not ironclad."

Proving innocence is a far higher standard than that required of prosecutors in criminal case, that the defendant be shown to be guilty "beyond a reasonable doubt." The judge decided that the defense's case for a new trial was largely "smoke and mirrors," finding only two of the recantations credible.  I have heard a number of people say "he had 20 years to prove his innocence" -- but how could he prove his innocence with evidence that was not available?  How does one prove a negative, especially in the face of existent but unknown evidence?

The entire case shows gaping holes in the American system.  Firstly, there is the issue of eyewitness testimony, which studies have been shown to be unreliable.  (The police did not include in the lineup of photos they showed to witnesses the other suspect in the case, Ronald Coles, who turned himself in and fingered Davis.)  Then there is the use of jailhouse informants, who have something to gain by providing evidence of guilt. (Both jailhouse informants later said they were lying.)

Davis's case is not, unfortunately, unique. In Texas, Cameron Todd Willingham was executed in spite of expert witness coming forward to state that the forensic evidence which was the backbone of  his conviction was seriously, seriously flawed: in fact, it had been discredited.

These cases demonstrates the capriciousness that underlies our system of death penalty justice:

If he had been alleged to have killed someone other than a police officer (or, to a lesser extent, a child) Troy Davis might not have received the death penalty. If Cameron Todd Willingham had not been accused of murdering his whole family, likewise.

In another state, they might not have been convicted.

In another state, they might have not been sentenced to death.

In another state, the state courts might well have ordered new trials.

In another state, they might not have even have faced the death penalty.  Jeffrey Dahmer, one of the most heinous murderers in our nation's history, the sort that death penalty proponents point to when arguing in its favor, died at the hands of another inmate instead of the state because Wisconsin has not had a death penalty since 1853.

Had either of them been a very popular ex-athlete, the prosecutors might well have decided not to even try for death.*

You are much better off being accused of murder in Colorado, New Hampshire or Kansas than  Oklahoma, Texas, Delaware or Virginia. And even within states, there are discrepancies.  You are much better off facing a murder prosecution in Santa Cruz than in Bakersfield.

There is something seriously flawed in our system of justice when a man who cut up young boys and stashed them in his freezer faces a lesser sentence than the getaway driver in a gas station robbery that goes wrong. Or when a man who is fingered as a murderer by the other person accused of the crime, who has everything to gain by the blame falling elsewhere, is sentenced to death. When the Supreme Court's decisions that hold that it is unconstitutional to execute the mentally ill and mentally retarded results in arguments about whether an inmate is retarded enough or mentally ill enough to escape execution.

How can the death penalty fail to be cruel and unusual punishment when it can be so arbitrary?

No other Western country executes people.  They view it as barbaric. Given the state of the death penalty in our country, we would do well to emulate them.

*It was the O.J. Simpson case which cemented my opposition to capital punishment.  Regardless of Simpson's guilt or innocence, you cannot convince me that another defendant, charged with lying in wait and brutally murdering two people, would not have been facing death rather than life in prison, especially in Los Angeles County.  The experts mentioned in the LA Times article state that the death penalty is not generally sought when the victim is a spouse, or when there is no prior felony record.  Oh, yeah? Tell that to Scott Petersen, who, in a similarly high profile case but without the "star defendant" factor, was sentenced to death even though he likewise had no felony record and was convicted of murdering a spouse. Ironically enough, I think had the O.J. prosecutors gone for the death penalty, they would have been more likely to have gotten a conviction: death-qualified juries are both more likely to trust law enforcement and to convict.