The NY Times has the story today of Troy A. Davis, a 38-year-old man who has been on Georgia's death row for 17 years. Mr. Davis was convicted of shooting a police officer who had come to break up a scuffle outside an Atlanta nightclub. There was no physical evidence tying him to the shooting. He admits to being at the scene but claims that he turned and ran as soon as someone threatened to shoot. At his trial, prosecutors, according to the Times, "relied heavily on the testimony of nine eyewitnesses who took the stand against Mr. Davis." But in the years since his trial, seven of the nine witnesses have recanted or changed their stories, admitting that they were (again, per the Times) "harassed and pressed by investigators to lie under oath."
Mr. Davis has exhausted his appeals. The Supreme Court last week refused to hear his case. And because of a recent (1996) law "intended to streamline the legal process in death penalty cases, courts have ruled it is too late in the appeals process to introduce new evidence and, so far, have refused to hear it." Why streamlining the path to death is a good idea totally escapes me. But beyond that, the existence of a law barring evidence that could exonerate a man less than one week from his execution seems both barbaric and blindingly stupid. Sure, in the absence of such a law, some people who are guilty of the crimes for which they were convicted would abuse the system and seek to submit unimportant evidence up to the last minute. But to me this seems a small price in efficiency to pay in order to ensure we don't put innocent people to death. (As you may have read before, I don't believe in capital punishment to begin with. But within the framework we now have, this law seems particularly cruel.)
I have a follow-up post on the Troy Davis case at TAPPED. Among other things, I discuss the famous Scalia concurrence in which he asserts that there is no constitutional right to bring evidence -- no matter how compelling -- of actual innocence after one had been validly convicted of a capital crime. But why worry?I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today's opinion requires would fail to produce an executive pardon.
Yoo Tortures The Law AgainHe's back, with another crackpot theory justifying arbitrary executive power in defiance of the plain language of several constitutional provisions as well as the structure and underlying theoretical basis of the Constitution.
As Stephen Holmes points out (and expands on in his new book), it's not just that Yoo believes as a normative matter -- contrary to the fundamental principles of liberal democracy-- that power is most effectively deployed when it's secret and unchecked, but his farcical attempts to locate the monarchical executive in the original meaning of a Constitution that (although it leaves the precise contours of executive power vague) plainly cannot support such a reading: