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« The Book and the Charlatan (Sujatha) | Main | Worse than the fear of death »

September 26, 2011


In an opinion piece in the Washington Post, Kathleen Parker asks, "Why wasn’t doubt enough to save Troy Davis from execution?" She argues from a point of common sense, and a modicum of compassion. She wonders what would be so bad about commuting his sentence to life without the possibility of parole. Wasn't there one appeals court or board along the way who could have made such a decision?

The answer is very simple. The law did not allow it. Not even the Governor of Alabama could issue a stay of execution or commute the sentence.

The law is an abstract calculus. We hope that lawyers, judges, and jurors can wed a sense of justice to their advocacy and deliberation. That is not always possible.

This brings us back to a central issue. What kind of justice system would we have if we allow jurors and witnesses to impeach their own process, in the absence of an agreeable prosecutor's office and a supporting victim or aggrieved family?

I'm sure you remember the Natalee Holloway case of several years ago. She disappeared in Aruba, and the prime suspect was Joran van der Sloot. Americans who followed the investigation and judicial proceedings were outraged over the legal system that failed to prosecute Joran. The Dutch-Aruban justice system does not allow deals to be struck with accomplices in return for their testimony against a fellow defendant. Also, statements that Joran made to others, which American courts might consider incriminating, were not allowed without some other corroborating evidence.

On both issues some American prosecutors MIGHT feel they could bring Joran to trial and get a conviction. Most Americans would expect no less from a prosecutor, though a conviction is not a certainty by any means.

On the face of the handling of the Natalee Holloway case, it appears to me that a murder prosecution under Dutch-Aruban law has to be more convincing than in the same trial in an American court. If my observation is correct, then I ask does this suggest that we require more stringent rules of evidence, and abolish deals for testimony, so that a case like Troy Davis has less of a chance of resulting in a conviction? I can't answer this question, but maybe someone else can.

Whoops! I meant the Governor of Georgia, above.

Does the law allow for a mistrial when several eye-witnesses recant the testimony on which the original conviction was based?

@ Ruchira:

In one sense an appeals court can do whatever it wants. It has latitude, for sure. As a general rule, they stick to guidelines, past decisions, and fundamental principles like not impeaching a jury verdict without very compelling reasons.

You may remember the Klaus von Bullow case and the insulin overdose of his wife, Sonny, that left her in a comatose vegetative state. He was convicted in the first trial of attempted murder. Alan Dershowitz led his appeal for a new trial in the State of Rhode Island. Dershowitz had an associate research the decisions of the Appeals Court to understand how decisions on retrials or vacating convictions were made. Apparently, the Rhode Island judiciary had a reputation for being corrupt. However, the associate determined that convictions were set aside when the Appeals judges genuinely believed the defendant was wrongly convicted.

There is nothing in the law that says Appellate Courts are supposed to "retry" the case. In fact, they are not supposed to "retry" the case. Dershowitz, armed with this intelligence conducted his appeal hearing in a way that had the judges hear evidence, not presented in the trial court that suggested, clearly, that von Bullow was framed. Usually, Appeals Courts do not like to consider new evidence that could have been shown at the trial. In a real sense, this would have been impeaching a fair trial.

This is a good example of an Appeals Court exercising some discretion they might not have shown, otherwise.

In the Troy Davis case, at least two of the eye witnesses did not recant their testimony. Also, the prosecutor's office continued to support the original verdict as the correct one. The fact that the victim's family believe him guilty generally has no effect on the appellate decision. Sometimes the surviving family, or the victim, will have an impact if they also support the defendant's appeal. When the appellate judges, including the Supreme Court, say that the recanting of witnesses is a weak argument for vacating a verdict or death sentence, they are saying that the there is a very high bar set for the appellant to get them to authorize the impeachment of a fair jury trial.

If it were proved that the police or prosecutor prepped or influenced witnesses in a way that was prejudicial to the defendant, it would not guarantee a new trial. The judges must consider whether disallowing the tainted evidence or testimony would result in a different verdict. They might feel that the remaining uncontested evidence or testimony would have been sufficient to get the same verdict.

You've heard of the situation where a 'bad' cop or 'bad' prosecutor planted false evidence or coerced confessions from an innocent citizen. When such crimes by the justice system are uncovered, scores (if not hundreds) of cases that were handled by the 'bad' guys have to be reviewed and many legitimate guilty verdicts will be thrown out. This is one reason why jurors and witnesses cannot recant there vote or testimony in a process that was fair to both sides. There would be chaos in the judicial system.

The ambiguity of the Troy Davis case, not his innocence of which there is no certainty, is what makes a very good argument to end all capitol punishment.

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