According to Associate Supreme Court Justice Antonin Scalia, one would have to be an “idiot” to believe the Constitution is a living document. Well, consider me, along with countless numbers of Americans, as one of those dull-witted individuals, who gladly wears Scalia’s intended insult as a badge of honor.
Scalia is also attributed as saying there is nothing in the Constitution that forbids the execution of a convicted defendant who has had a full and fair trial, but is later able to convince a court that he or she is actually innocent.
Combining Scalia’s two schools of thought, it becomes understandable, in the most painful manner, how Troy Davis could be executed in a Georgia prison for the 1989 murder of Savannah police officer Mark MacPhail.
But the absurdity of the case that was burdened with error makes this particular execution incomprehensible by any moral standard.
My opposition to the death penalty has been well documented. I have also maintained that I did not know if Troy Davis was innocent or guilty of the crime of which he was convicted.
I do know when seven of the nine witnesses recant their testimony, no physical evidence connects Davis to the crime and there were gross violations in the police lineup procedure; it does not seem plausible to take a human being’s life. But it was not only plausible; it is America’s reality.
According to the Innocence Project, eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75 percent of convictions overturned through DNA testing.
The global outpouring of support for Davis, which includes two notable proponents of capital punishment, former FBI Director, William Sessions and former Republican Rep. Bob Barr, should not be viewed as ignoring the incomprehensible loss sustained by MacPhail’s family.
But when the pain of the MacPhail family is interwoven with the injustice done to Davis, it creates an either/or proposition where all sides ultimately lose.
As Barr wrote in an editorial last week, “Imposing an irreversible sentence of death on the skimpiest of evidence will not serve the interest of justice.”
Can the desire for justice, however defined, come at the expense of due process and reasonable doubt?
One of the jurors, who supported the death penalty, recently appeared before the Georgia Board of Pardons and Paroles and stated that had the forensic evidence been available that contradicted a major portion of the prosecution’s argument at the time she would not have voted to execute Davis.
The moral question that death penalty advocates must answer, if they are to maintain the certainty of their position: What is the error percentage that maintains their comfort level?
The Constitution collectively speaks to how a nation that has at its foundation the commitment to life, liberty and the pursuit of happiness would achieve its stated goals. But those goals can only be achieved when the people maintain an ongoing commitment to breathe life into the Constitution.
Was it not the oxygen provided by Susan B. Anthony and others that gave life to the 19th Amendment? Or that of Thurgood Marshall who stood on the power of the 14th Amendment to successfully argue that Plessy v. Ferguson was suffocating the nation’s democratic values?
It is when the Constitution is frozen in antiquity that those on society’s margin are most likely to fall between the cracks and experience injustice.
But nowhere in the document housed at the National Archives does it specifically state that Troy Davis, at the very least, should not have his sentence commuted to life in prison instead of the barbarism he received.
If due process is simply the strict adherence to procedure based on the understanding of those who crafted it, are we not destined to keep one foot planted in medieval justice despite our vaunted claims of enlightenment?
Having followed this case closely over the years, I always felt Davis’ life would be spared. I believed it unfathomable with the number of witness recantations, allegations of police coercion and lack of physical evidence that he would be executed.
Oakland Tribune contributing columnist
Republished with the author’s permission.