FORMER JUDGE, FBI CHIEF SPEAKS OUT FOR TROY DAVIS

"Our system owes Troy Davis another day in court"

By WILLIAM S. SESSIONS

Tuesday, November 18, 2008

It is wrong to execute an innocent man. The U.S. Court of Appeals for the 11th Circuit will now consider whether it is constitutional. Troy Anthony Davis, convicted of murder, is asking the courts to hear evidence that key government witnesses have repudiated their testimony against him. But so far the courts have decided that, while he may be innocent, procedural rules prevent them from taking a second look.

For 17 years, Troy Davis has been on Georgia’s death row for murdering a police officer. As the director of the FBI under Presidents Reagan,Bush and Clinton, and as a former federal judge, I believe that there is no more serious offense than the murder of a police officer. However, crucial unanswered questions surround claims of Davis’ responsibility for this terrible crime, and I believe that the execution should not go forward until the courts address them and determine whether he is in fact guilty.

Police never found a murder weapon. Seven of the nine non-police witnesses recanted or changed their original testimony. Some of these witnesses say police pressed them to implicate Davis. Some also point to another man, one of the two witnesses who continue to implicate Davis, as the real murderer.

Because these revelations came after Davis was convicted, court ruleshave prevented a full hearing on Davis’ claim of innocence. These rules, put in place to prevent endless appeals by the guilty, may also cut off a lifeline to the innocent.

These rules bar appeals courts from hearing even the most important of claims if the defendant did not properly raise them at trial. This is true even if the failure to raise them was not caused by the defendant. This was the situation in Davis’ case; his lawyers were overworked and underpaid public defenders who admit they were unable to investigate the facts and provide a comprehensive defense.

These procedural rules mean that no court has ever held a hearing on the claims of innocence raised by Davis’s current legal team. To send a man to his death because procedural obstacles prevent the courts from considering the merits of his claim of innocence would, in my view, be a travesty.

I am a member of the Constitution Project’s bipartisan Death Penalty Committee, which includes both supporters, such as myself, and opponents of the death penalty. We have issued a series of recommendations to address the profound risk that the wrong people will be convicted or even executed under a capital punishment system that is deeply flawed. One of those recommendations is that courts must hear the merits of claims such as those raised by Davis, and that procedural obstacles that would otherwise bar such review should be abolished.

There are those who say that it is enough that courts have looked at the recanting witnesses’ affidavits. It is not. Since there was no physical evidence, this case was built almost entirely on witness testimony. Only a full hearing, with all witnesses subject to rigorous cross-examination and a full exploration of the circumstances of their testimony, will provide a means to determine the reliability of this conviction. This never happened at trial. It must happen now.

On Oct. 24, the 11th Circuit judges wisely stayed Davis’s impending execution to give him the opportunity to request a full hearing. Yet the law says that, even if Davis can provide compelling evidence that he is innocent, if the court determines that he could have introduced the evidence at an earlier date, that evidence of innocence is not enough to stay the executioner’s hand. Procedural obstacles would block the truth, and finality would trump fairness.

Davis is not asking the court to set him free. He is asking for the court’s permission to give his innocence claims the full hearing they deserve. Our justice system should punish the guilty, free the
innocent and have the wisdom to know the difference. I hope the 11th Circuit will give Davis his day in court.

• Williams Sessions, a former district court judge, served as FBI director from 1987 to 1993.

http://www.ajc.com/opinion/content/opinion/stories/2008/11/18/sessionsed_1118.html?cxntlid=inform_sr