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.