Innocent Person’s Right Not to Be Executed

Though I follow a number of lawblogs, I missed a rather interesting Supreme Court decision until reading about it on the blog of entrepreneur Mark Cuban. For reasons understandable to those who follow Cuban, he has a Google alert for “prosecutorial misconduct,” which yields more results than one would like.

It led him to Michael Dorf‘s FindLaw essay “Did the Supreme Court Recognize an Innocent Person’s Right Not to Be Executed?”

“What,” you may be asking yourself, “such a right doesn’t exist already?! They find stuff emanating from penumbras and they haven’t found this one yet?!”

Nope:

In 1993, in Herrera v. Collins, the Supreme Court raised, but did not ultimately decide, the question whether it would violate the Constitution to execute an actually innocent person. Acknowledging an “elemental appeal” to the claim that the Constitution forbids executing the innocent, the Court nonetheless left open the question whether, “in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” Even if such a demonstration would indeed render an execution constitutionally forbidden, moreover, the late Chief Justice Rehnquist said for the Court, “the threshold showing for such an assumed right would necessarily be extraordinarily high.” Finding that Herrera’s proffered evidence did not satisfy this standard, the Court denied relief in that case.

But, in a case decided August 17 involving a man on death row for murdering a cop, convicted on evidence that has since been recanted and with substantial new evidence pointing to the state’s star witness as being the actual killer,

Yet despite national and international attention—including pleas by former Georgia Governor and U.S. President Jimmy Carter, former Georgia Republican Congressman and federal prosecutor Bob Barr, and even Pope Benedict—neither the Georgia courts nor the Georgia Pardons and Parole Board has seen fit to stop Davis’s execution.

Last week, the Supreme Court offered Davis a ray of hope. In response to his petition for a writ of habeas corpus, the Justices ordered that a federal district court in Georgia “should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis’s] innocence.”

A key excerpt from the dissent:

This Court has never held that the Constitution forbids the execution of a convicted de-fendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that ques-tion unresolved, while expressing considerable doubt thatany claim based on alleged “actual innocence” is constitutionally cognizable.

Now, as a practical matter, there is no such thing as innocence in the eyes of the law.  A person is either found guilty or acquitted.  And we obviously don’t want to routinely retry cases on the basis of the convict’s assertions of innocence.  After all, if the population at Shawshank is any indication, they’re all innocent.  Once convicted, the burden of proof for presenting new evidence of innocence ought reasonably be high.

But, surely, the basic idea of justice precludes the state from knowingly executing someone for a crime they didn’t commit?

FILED UNDER: General, , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. steve says:

    Not according to Scalia (that was his quote). There is no line in the Constitution which explicitly disallows punishment for those falsely convicted.

    Steve

  2. Michael says:

    But, surely, the basic idea of justice precludes the state from knowingly executing someone for a crime they didn’t commit?

    Justice is a process, not a result. Justice is served by a full and fair trial, whether the innocent are accused, or the guilty acquitted. Justice is fair, blind, and imperfect.

    Yes, we shouldn’t knowingly execute an innocent man. But how to assess his innocence or guilt? So far the best method we’ve found is though a full and fair trial.

  3. James Joyner says:

    But how to assess his innocence or guilt? So far the best method we’ve found is though a full and fair trial.

    Sure. But what if substantial evidence comes up that key witnesses were lying? Or that the convicted was nowhere near the scene of the crime? Shouldn’t we have procedures for evaluating that evidence?

  4. PD Shaw says:

    I’m opposed to the death penalty, and no doubt this is the type of messy case that bolsters that p.o.v.

    . . . but it’s laying it on thick to make Davis out to be a potential “innocent.” He and a group of thugs followed a homeless man around, hitting and harassing him for kicks and when a police officer came to stop it, one of them shot the officer. The thugs pointed fingers at each other. Their obvious self-interest and inconsistencies were presented at trial, but significantly there was an Air Force serviceman parked nearby who fingered Davis and testified at trial “you don’t forget someone that stands over and shoots someone.”

    Now the co-thugs have recanted their testimony, probably knowing that they can’t be tried anymore and obvious sympathy with their friend. Now they say they couldn’t see the shooter well enough. The Air Force serviceman has not recanted.

    The Georgia Supreme Court, the Georgia Pardon Board and the 11th Circuit Court of Appeals have looked at the new evidence and decided that it didn’t clearly show that the jury was wrong.

    I’m not sure what the federal judge is supposed to do here, but it sounds like the people who have presented affidavits are going to be examined and cross-examined under oath. Were they lying then? Or now? Does it matter?

  5. Michael says:

    Sure. But what if substantial evidence comes up that key witnesses were lying? Or that the convicted was nowhere near the scene of the crime? Shouldn’t we have procedures for evaluating that evidence?

    It’s my understanding that the evidence was evaluated, was it not?

  6. Steve Verdon says:

    But, surely, the basic idea of justice precludes the state from knowingly executing someone for a crime they didn’t commit?

    Bwahahahahahaha….

    Oh now that’s funny. The view is that since they’ve had a fair trial already then that’s it, execute them. It is making a fetish of process over the concept of justice and in the end a perversion of American ideals, IMO.

    Yes, we shouldn’t knowingly execute an innocent man. But how to assess his innocence or guilt? So far the best method we’ve found is though a full and fair trial.

    Michael,

    The problem with this view is that technological advancement can render the initial trial unfair expost.

    A man is accused, tried and convicted of rape and murder. There is “eyewittness” evidence. There is physical evidence (blood and/or semen that matches the accused blood type). The evidence is, fortunately, preserved.

    Twenty five years later the preserved DNA bearing evidence is tested and it is not the accused, it turns out it is somebody else who looks similar to him (hence the bad eyewittness evidence) that has a history of such crimes. This new suspect is already on in prison and when asked happily admits to the rape and murder (we suspect he’s not what most of us would call normal).

    Now, was the initial trial fair given what we know now? I’d argue no. At the time, sure it was fair, but now we have almost iron clad proof that the initial person who was accused is innocent.

    Now you might say, “How often does this happen?”

    Twice that I know of. There were two cases down in Mississippi where two seperate men were accused and convicted of raping and killing young girls (children). The evidence? Highly unreliable “bite marks” found by a now discredited dentist. The two men were Levon Brooks and Kennedy Brewer. The same man raped and killed both girls that were known to Brooks and Brewer (note neither Brewer nor Brooks new each other or both of the girls, they each know one of the girls involved–at least that is my understanding). You can find more at Radley Balko’s website.

    Also, there are all the dubious convictions invovling not only this discredited dentist “Dr.” West, but also the now discredited “Dr.” Steven Hayne. Both have been shown to do very shoddy work and both were known for being “yes men” for the prosecution. You want evidence for your suspect? Go to Hayne/West (they were/are friends) and they’d find the evidence.

    And, DNA testing is not a post-conviction right.

    It’s my understanding that the evidence was evaluated, was it not?

    Prosecutors often resist such evaluations. They routinely try to block access to DNA evidence. So it may be reviewed or it may not. Such reviews are not rights, they are at the whim of a judge. Get a “Law & Order”-Scalia-Sotomayor type and you are essentially f*cked.

    I submit that from both an ethical and logical point of view (I am pointedly leaving legal out since the legal view is often an ass’ view, IMO) is problematic.

  7. Steve Verdon says:

    Their obvious self-interest and inconsistencies were presented at trial, but significantly there was an Air Force serviceman parked nearby who fingered Davis and testified at trial “you don’t forget someone that stands over and shoots someone.”

    Right, but with DNA based exonorations it can be argued that eye-wittness testimony is not what we think it is. The view is that our memory is like a video tape and we can just re-wind it and see it again. It isn’t. It is more like an unstable computer file that can and probably will become corrupted over time.

    Now as for Davis that’s problematic because now that eye wittnesses are recanting is it due to initial recall error, or latter recall error? And that’s being charitable. After all, as you note they also are now immune from prosecution.

    Still, the idea that you have an eye-wittness therefore case closed is…to be anti-science, anti-reason, and anti-justice IMO.

    And Davis’ case while possibly not the ideal test for this process still leaves open the notion that no, you don’t have a right not to be executed if you really are innocent and wrongly convicted. You’ve provided absolutely zero response to that fundamental question.

    Via Edit: Slate on Brewer and Brooks (Brewer was sentenced to death by the way–Mississippi justice is a complete joke).

  8. sam says:

    @PD

    [B]ut significantly there was an Air Force serviceman parked nearby who fingered Davis and testified at trial “you don’t forget someone that stands over and shoots someone.”

    I think that eye-witness testimony has become suspect in the last few years. See this 60 Minutes piece, Eyewitness: How Accurate Is Visual Memory?

    The extraordinary thing is that the woman whose eye-witness testimony, faulty testimony it turned out, led to the false conviction of a man for her rape has co-authored a book with the falsely convicted man, and they both tour the country now talking about the fallability of such testimony. See the cited for details.

  9. Uh, isn’t this one reason that the power to pardon exists? If we knew our system of justice to be “perfect” there would be no need for any governor or president to have the power to pardon anyone, except as a method of perpetuating corruption.

  10. James Joyner says:

    Uh, isn’t this one reason that the power to pardon exists? If we knew our system of justice to be “perfect” there would be no need for any governor or president to have the power to pardon anyone, except as a method of perpetuating corruption.

    A fair point. Still, the courts shouldn’t idly stand by if the executive doesn’t act.

  11. steve says:

    charles-Yes, in theory. However, sometimes politicians do not want to be seen as soft on crime. There is political risk involved. Maybe not the best solution.

    Steve

  12. PD Shaw says:

    you don’t have a right not to be executed if you really are innocent and wrongly convicted

    This is more of a federalism issue. If a person is convicted of a crime and they find new evidence that exonerates them, they can petition the state court for the conviction or sentence to be thrown out. Davis did that here, filing affidavits and requesting a new trial. He lost; the Georgia Supreme Court found the new evidence insubtantial in light of all the evidence presented at the original trial.

    Davis also had an opportunity to present this new evidence to the state parole board, which also re-tested some of the physical evidence used against him at trial. The Board found that the new evidence did not warrant clemency.

    What we’re talking about is an additional federal right to review the new evidence where the state is not claimed to have violated any federal laws. Georgia is not claimed to have deprived Davis of his Sixth Amendment right to effective assistance of counsel, or his Fourteenth Amendment right against racial discrimination, etc. This is unprecedented in the modern era according to Scalia and it’s not at all clear what evidence the federal trial judge is supposed to hear to evaluate whether an innocence claim has been made.

  13. Michael says:

    Still, the courts shouldn’t idly stand by if the executive doesn’t act.

    They shouldn’t? At what point do you feel the judiciary should become involved in the enforcement of the law?

  14. Steve Verdon says:

    They shouldn’t? At what point do you feel the judiciary should become involved in the enforcement of the law?

    They apparently did in the cases of Brewer and Kennedy, what is the problem here?

    Seriously, are you really implying it is better to keep innocent people in prison and even on death row?

  15. Michael says:

    Seriously, are you really implying it is better to keep innocent people in prison and even on death row?

    Innocent people will always been in prison, and as long as there is a death row there will most likely be innocent people there too. Like I said earlier, justice is imperfect.

    In that light, I would rather that judges judge in an imperfect system, rather than take on roles of legislator or executor in a vain attempt at fixing the system.

  16. It seems to me that being executed for something you didn’t do would constitute ‘cruel and unusual punishment’ by any meaningful definition of the phrase.

  17. Michael says:

    It seems to me that being executed for something you didn’t do would constitute ‘cruel and unusual punishment’ by any meaningful definition of the phrase.

    In that case, you have to say that long prison sentences for something you didn’t do also violates the Constitution. May as well stop trying to punish people for violating the law, because you’ll never get it 100% right.

    The perfect is the enemy of the good.

  18. That’s like arguing it’s okay to run people over in your car because we have to accept that sometimes drivers get into accidents.

  19. Steve Verdon says:

    In that light, I would rather that judges judge in an imperfect system, rather than take on roles of legislator or executor in a vain attempt at fixing the system.

    What exactly do you think the legislature would do, but change how the judicial system works? Is that your sole objection, that you want this kind of thing granted to the judicial system by legislation?

  20. Michael says:

    That’s like arguing it’s okay to run people over in your car because we have to accept that sometimes drivers get into accidents.

    No, it’s like arguing that judges shouldn’t be able to decide how fast our cars can go because sometimes drivers get into accidents.

    What exactly do you think the legislature would do, but change how the judicial system works?

    That’s their prerogative.

    Is that your sole objection, that you want this kind of thing granted to the judicial system by legislation?

    If this kind of thing is going to be granted, then yes, I want it granted by laws, and I want the legislature to be the ones who write them, don’t you? Or are you suddently in favor of the “Somebody do something right now” solution?

  21. anjin-san says:

    the basic idea of justice

    We have a right to due process of law, not justice. Justice is a great concept, but sadly, there are plenty of times that it is not served. The Governor’s power to grant a stay is the check in this case…

  22. Anon says:

    In that case, you have to say that long prison sentences for something you didn’t do also violates the Constitution. May as well stop trying to punish people for violating the law, because you’ll never get it 100% right.

    So you are saying we might as well not try to avoid punishing innocent people, because some are going to be punished no matter what we do?

    I’d say punishing any innocent person is a violation of the Constitution.

    No one is suggesting that no one is ever punished. The real question is this: Is it legally acceptable for the State to punish someone that it admits is innocent?

  23. Michael says:

    So you are saying we might as well not try to avoid punishing innocent people, because some are going to be punished no matter what we do?

    I’m saying that being wrong isn’t unconstitutional. You have a constitutional right to a fair trail, not a correct outcome.

    I’d say punishing any innocent person is a violation of the Constitution.

    I’d like to know which section of the Constitution you think gives that right.

    The real question is this: Is it legally acceptable for the State to punish someone that it admits is innocent?

    As far as I know, the State hasn’t admitted that the accused is innocent.