Former Congressman Bob Barr of Georgia has called for a full court hear­ing on the new evi­dence offered by death row inmate Troy Davis regard­ing his pos­si­ble inno­cence. Davis’s attor­neys have sub­mit­ted a peti­tion to the U.S. Supreme Court request­ing such a hear­ing. Barr not­ed that part of the basis the low­er courts have used in refus­ing to hold a hear­ing is the Anti-Terrorism and Effective Death Penalty Act, a law that he helped write. Barr, who also served as a U.S. Attorney in Georgia, wrote in an op-ed in the New York Times that, ​“There is no abuse of gov­ern­ment pow­er more egre­gious than exe­cut­ing an inno­cent man. But that is exact­ly what may hap­pen if the United States Supreme Court fails to inter­vene on behalf of Troy Davis.” Barr con­tin­ued, ​“This threat of injus­tice has come about because the low­er courts have mis­read the Anti-Terrorism and Effective Death Penalty Act of 1996, a law I helped write when I was in Congress.” He empha­sized, ​“But noth­ing in the statute should have left the courts with the impres­sion that they were barred from hear­ing claims of actu­al inno­cence like Troy Davis’s.” The full op-ed may be read below.

Death Penalty Disgrace
By BOB BARR

THERE is no abuse of gov­ern­ment pow­er more egre­gious than exe­cut­ing an inno­cent man. But that is exact­ly what may hap­pen if the United States Supreme Court fails to inter­vene on behalf of Troy Davis.

Mr. Davis is fac­ing exe­cu­tion for the 1989 mur­der of an off-duty police offi­cer in Savannah, Ga., even though sev­en of the nine wit­ness­es have recant­ed their tes­ti­mo­ny against him. Many of these wit­ness­es now say they were pres­sured into tes­ti­fy­ing false­ly against him by police offi­cers who were under­stand­ably eager to con­vict some­one for killing a com­rade. No court has ever heard the evi­dence of Mr. Davis’s inno­cence.

After the United States Court of Appeals for the 11th Circuit barred Mr. Davis from rais­ing his claims of inno­cence, his attor­neys last month peti­tioned the Supreme Court for an orig­i­nal writ of habeas cor­pus. This would be an extra­or­di­nary pro­ce­dure — pro­vid­ed for by the Constitution but grant­ed only a hand­ful of times since 1900. However, absent this, Mr. Davis faces an extra­or­di­nary and obvi­ous­ly final injus­tice.

This threat of injus­tice has come about because the low­er courts have mis­read the Anti-Terrorism and Effective Death Penalty Act of 1996, a law I helped write when I was in Congress. As a mem­ber of the House Judiciary Committee in the 1990s, I want­ed to stop the unfound­ed and abu­sive delays in cap­i­tal cas­es that tend to under­mine our crim­i­nal jus­tice sys­tem.

With the effec­tive death penal­ty act, Congress lim­it­ed the num­ber of habeas cor­pus peti­tions that a defen­dant could file, and set a time after which those peti­tions could no longer be filed. But noth­ing in the statute should have left the courts with the impres­sion that they were barred from hear­ing claims of actu­al inno­cence like Troy Davis’s.

It would seem in everyone’s inter­est to find out as best we can what real­ly hap­pened that night 20 years ago in a dim park­ing lot where Officer Mark MacPhail was shot dead. With no mur­der weapon, sur­veil­lance video­tape or DNA evi­dence left behind, the jury that judged Mr. Davis had to weigh the con­flict­ing tes­ti­mo­ny of sev­er­al eye­wit­ness­es to sift out the gun­man from the onlook­ers who had noth­ing to do with the heinous crime.

A litany of affi­davits from pros­e­cu­tion wit­ness­es now tell of an inves­ti­ga­tion that was focused not on scru­ti­niz­ing all sus­pects, but on build­ing a case against Mr. Davis. One wit­ness, for instance, has said she tes­ti­fied against Mr. Davis because she was on parole and was afraid the police would send her back to prison if she did not coop­er­ate.

So far, the fed­er­al courts have said it is enough that the state courts reviewed the affi­davits of the wit­ness­es who recant­ed their tes­ti­mo­ny. This rea­son­ing is mis­placed in a cap­i­tal case. Reading an affi­davit is a far cry from see­ing a wit­ness tes­ti­fy in open court.

Because Mr. Davis’s claim of inno­cence has nev­er been heard in a court, the Supreme Court should remand his case to a fed­er­al dis­trict court and order an evi­den­tiary hear­ing. (I was among those who signed an ami­cus brief in sup­port of Mr. Davis.) Only a hear­ing where wit­ness­es are sub­ject to cross-exam­i­na­tion will put this case to rest.

Although the Supreme Court issued a stay of exe­cu­tion last fall, the court declined to review the case itself, and its inter­ven­tion still has not pro­vid­ed an oppor­tu­ni­ty for Mr. Davis to have a hear­ing on new evi­dence. This has become a mat­ter of no small urgency: Georgia could set an exe­cu­tion date at any time.

I am a firm believ­er in the death penal­ty, but I am an equal­ly firm believ­er in the rights and pro­tec­tions guar­an­teed by the Constitution. To exe­cute Troy Davis with­out hav­ing a court hear the evi­dence of his inno­cence would be uncon­scionable and uncon­sti­tu­tion­al.

Bob Barr served in the House of Representatives from 1995 to 2003 and was the United States attor­ney for the Northern District of Georgia from 1986 to 1990.

(B. Barr, ​“Death Penalty Discrace,” New York Times, June 1, 2009). See Innocence and New Voices.

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