Originally published Sep. 21, 2011 on ChristianPost.com. See original link here
In the last week, the U.S. Supreme Court has halted two executions in Texas – an extremely rare move – in order for it to consider appeals in the cases. Does that mean the Troy Davis execution will be halted, too?
Due to the extremely high amount of attention the Davis case has garnered, combined with the last-minute appeal filed by lawyers Wednesday morning, supporters have wondered if the Supreme Court will intervene.
Davis’ attorneys have asked the Supreme Court to review the appeal based on flawed ballistic testing that linked Davis to the 1989 shooting of off-duty police officer Marc MacPhail.
However, legal experts contacted by The Christian Post Wednesday were not optimistic of Davis’ chances.
“I think it is very unlikely based on the rationale,” said Robert C. Owen, a professor of law at University of Texas, Austin, who specializes in capital punishment.
Owen said that the cases of the two men in Texas whose executions were halted – Duane Buck and Cleve Foster – had specific problems that did not have many similarities to the Davis case.
The Buck case was halted because of testimony given by a psychologist during sentencing that said black men were more prone to violence because of their race.
Although Buck’s guilt was never in question, the possibility that he was sentenced to death because jurors used race as a factor in deciding his fate caused many people, including a former prosecutor in the case, to ask for a new sentencing hearing.
The stay was granted by Associate Justice Antonin Scalia.
According to Owen, Buck’s case has little relevance to Davis’ case, but the Foster case could possibly have some implications.
The Foster case “deals with mistakes by appeal lawyers,” Owen explained.
Stressing that he was speaking hypothetically, Owen said, “If similar mistakes were made by Davis’ lawyers, there could be a chance [the Supreme Court halts the execution].”
But Owen points out that the Supreme Court is already familiar with the Davis case and in 2008, issued a rare order for an appeals court to review new testimony, where the original verdict was not changed.
“I think that absent of some terribly new evidence that the Supreme Court hasn’t had in front of them, it’s not likely,” Owen said of the chances the court will once again intervene.
James S. Liebman, professor of law at Columbia University specializing in criminal law and the death penalty, shared Owen’s view.
Also speaking strictly hypothetically, Liebman told The Christian Post the Supreme Court could step in “if something new came up or if the clemency board violated a rule.”
However, Liebman feels that there were many problems in the way Davis’ case was handled.
“The hearings and proceedings were not open and sympathetic to the possibility that an innocent man could be put to death,” he said.
However, Liebman not only blames the way the case was handled but also the way the law is structured, in Davis’ getting the death penalty.
Most people believe that one is “innocent until proven guilty” in a court of law. However, “the law says that once a jury finds you guilty, the onus switches,” Liebman said. “The conclusion is already against you.”
Proving a jury’s judgment based on witness testimony and no physical evidence is what made Davis’ case so difficult to prove his innocence.
If one was not convicted based on physical, empirical evidence, but on judgments by individuals in a jury, one must “prove” a person’s opinions were wrong.
That is what Davis’ lawyers attempted to do in 2008 when the case was sent back down by the Supreme Court for review.
In front of the appeals court, Davis’ attorneys showed that seven of nine witnesses recanted their testimony.
Also, one of the jurors has said in an interview with Amnesty International that “If I had known then what I know now, Troy Davis would not be guilty.”
However, appeals judges believed the original witnesses’ testimonies and stuck to the original verdict: guilty.
An op-ed published by TheNew York Times Wednesday reveals, “Studies of the hundreds of felony cases overturned because of DNA evidence have found that misidentifications accounted for between 75 percent and 85 percent of the wrongful convictions. The Davis case offers egregious examples of this kind of error.”
Davis is scheduled for death by lethal injection at 7 p.m. EDT Wednesday.