NEW VOICES: Former Conservative Congressman Questions Fairness and Accuracy of the Death Penalty

Former Georgia Congressman Bob Barr, a well-known con­ser­v­a­tive voice and a death penal­ty sup­port­er, recent­ly ques­tioned the fair­ness and accu­ra­cy of cap­i­tal pun­ish­ment in an opin­ion piece pub­lished by the Atlanta Journal-Constitution. Barr not­ed that a recent University of Virginia study of wrong­ful con­vic­tion cas­es has raised seri­ous ques­tions about the reli­a­bil­i­ty of eye­wit­ness iden­ti­fi­ca­tion. He also applaud­ed the Georgia Supreme Court’s recent deci­sion to grant a hear­ing to death row inmate Troy Davis, who has also been giv­en a 90-day stay of exe­cu­tion by the Georgia Board of Pardons and Paroles due to con­cerns about his pos­si­ble inno­cence. In the Davis case, sev­en of the nine eye­wit­ness­es who tes­ti­fied against him dur­ing his tri­al have now recant­ed or changed their tes­ti­mo­ny, and new wit­ness­es have impli­cat­ed one of the state’s key wit­ness­es against Davis as the real killer. Barr said that ​“the cred­i­bil­i­ty of our crim­i­nal jus­tice sys­tem” is at stake in Davis’ case, writing:

I’ve been called a lot of things, but a ​“bleed­ing heart lib­er­al” is not one of them. I am a firm believ­er in the pro­pri­ety and his­toric sound­ness of the death penal­ty. But, as a pro­po­nent of our Constitution and its atten­dant Bill of Rights, I believe just as strong­ly in the fun­da­men­tal fair­ness that lies at the heart —- or should lie at the heart —- of our crim­i­nal jus­tice sys­tem. Because of its obvi­ous final­i­ty, the death penal­ty must be employed with as close to absolute fair­ness and cer­tain­ty as human­ly pos­si­ble. Several recent cas­es, includ­ing that of Troy Davis here in Georgia, have raised legit­i­mate ques­tions about just that propo­si­tion. True con­ser­v­a­tives, as much as the most bleed­ing heart lib­er­als, should be unafraid to look care­ful­ly at such cases.

A new study of wrong­ful con­vic­tions —- ​“Judging Innocence” by University of Virginia law Professor Brandon Garrett —- pro­vides cause for con­cern. Professor Garrett stud­ied 200 cas­es of wrong­ful con­vic­tions and found that in each case, DNA evi­dence con­clu­sive­ly proved the indi­vid­u­al’s inno­cence and result­ed in exon­er­a­tion. According to Garrett, the lead­ing cause of these wrong­ful con­vic­tions was erro­neous iden­ti­fi­ca­tion by eye­wit­ness­es, which occurred in an over­whelm­ing 79 per­cent of the cas­es. Even more dis­turb­ing, in 25 per­cent of the cas­es, this faulty eye­wit­ness tes­ti­mo­ny was the only evi­dence against the defendant.

In 31 of these 200 cas­es, the pris­on­ers appealed to the U.S. Supreme Court, but the court refused to hear the appeal or ruled against them. In oth­er cas­es, high­er courts decid­ed that tri­al errors were ​“harm­less” and there­fore did not con­sti­tute grounds to reverse. Even with DNA evi­dence con­clu­sive­ly clear­ing them, many of these defen­dants faced enor­mous obsta­cles in con­vinc­ing courts to over­turn their convictions.

These indi­vid­u­als had their prover­bial ​“day in court,” but the wrong per­son was con­vict­ed and sent to prison or death row. Perhaps equal­ly trou­bling, the real per­pe­tra­tors remained free and in at least some cas­es com­mit­ted more crimes.

Garrett con­clud­ed that the resis­tance of courts was not the only rea­son why these inno­cent peo­ple were unable to prove they were inno­cent. Another rea­son is that pro­ce­dur­al obsta­cles often pre­vent courts from hear­ing evi­dence, even evi­dence of inno­cence. Also, good lawyers are essen­tial to enable a defen­dant to mount a defense and raise all rel­e­vant issues. Several years ago, a com­mis­sion of dis­tin­guished Georgians con­clud­ed that our state failed to pro­vide a ​“con­sti­tu­tion­al­ly suf­fi­cient, fair crim­i­nal jus­tice sys­tem.” The com­mis­sion said the state must pro­vide “[s]ignificantly more mon­ey … for those with­out ade­quate resources to pro­vide [a defense] for them­selves.” It found that while more mon­ey was essen­tial, it was equal­ly impor­tant for the state to cre­ate a pub­lic defense sys­tem that ​“insures qual­i­ty, uni­for­mi­ty and account­abil­i­ty.” Georgia respond­ed by cre­at­ing a much-improved defense sys­tem. Unfortunately, because the Legislature failed to pro­vide a prac­ti­cal mech­a­nism to imple­ment and fund the new sys­tem, it is itself now threat­ened by a funding crisis.

Troy Davis, recent­ly grant­ed a 90-day stay of exe­cu­tion by the Georgia Board of Pardons and Paroles and a promised hear­ing before the state Supreme Court, had his ​“day in court.” Yet near­ly every rea­son Garrett cites for wrong­ful con­vic­tions applies in the Davis case. The mur­der weapon was nev­er found, and there was no oth­er phys­i­cal evi­dence tying Davis to the crime. While it was rep­re­sent­ing him, the Georgia Resource Center’s bud­get was slashed; his lawyer admit­ted the best he could do was to try ​“to avert total dis­as­ter.” Seven of the nine eye­wit­ness­es have since recant­ed or changed their tes­ti­mo­ny, some even say­ing they impli­cat­ed Davis only because of extreme pres­sure from the police. And new wit­ness­es have now impli­cat­ed one of the remain­ing wit­ness­es as the real killer.

Troy Davis’ life is at stake; but so is the cred­i­bil­i­ty of our crim­i­nal jus­tice sys­tem. If a ​“day in court” means any­thing, it is that this man is enti­tled to a thor­ough and fair review of evi­dence that he is inno­cent. Georgia’s high­est court has deter­mined that a ​“day in court” —- cru­cial for those accused of cap­i­tal offens­es —- must be mea­sured not only tem­po­ral­ly but qual­i­ta­tive­ly as well. In this, we should all applaud them.

(Atlanta Journal-Constitution, August 8, 2007). See New Voices and Innocence.