Innocence, Schminnocence. We've Got an Execution to Put On.

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By Brian Evans, Death Penalty Abolition Campaigner at Amnesty International USA.

Imagine a case where someone is sent to death row solely on the testimony of nine witnesses, and then, some years after the conviction, seven of those witnesses recant (many alleging they were coerced by police to testify falsely at the trial), and several other people come forward to provide statements suggesting that one of the remaining two witnesses is the actual killer. Most people with a modicum of common sense would think, "Hold another hearing to examine all these witnesses to find out what's really going on here."

Unfortunately, our court system does not operate primarily on the basis of common sense; it is more of a blind lumbering bureaucracy, where process is more important than truth, and if you don't present evidence in the right way, at the right time, you can be sent to your execution without ever having a hearing that might have proven innocence.

Anger over this bureaucratic approach to justice is one of the factors that has led over 100 groups to organize events for today's Global Day of Action for Troy Davis.

On April 16, Troy Anthony Davis was denied a chance to get an evidentiary hearing on his case. Davis was sentenced to death in 1991 in Georgia for the murder of police officer Mark Allen MacPhail, but his conviction was based almost exclusively on the testimony of nine witnesses, and seven of those witnesses have now recanted, many alleging police coercion. No murder weapon as ever found and no physical evidence linked him to the crime.

For several years now, Troy Davis has been seeking an evidentiary hearing of the kind described by former FBI director William Sessions, who wrote this about Davis' case in November of last year:

"Only a full hearing, with all witnesses subject to rigorous cross-examination and a full exploration of the circumstances of their testimony, will provide a means to determine the reliability of this conviction."

But the April 16 ruling by the 11th Circuit Court of Appeals was just the latest in a series of decisions refusing to give Davis a chance for such a hearing.

The reasons for denying Davis an evidentiary hearing have been procedural, not substantive. In the mid 1990s Federal habeas corpus appeals were subjected to "reforms" like the Anti-Terrorism and Effective Death Penalty Act (AEDPA), a measure passed by Congress in the wake of the Oklahoma City bombing which was designed to "speed up" the federal appeals process, so that there could be more "finality" in death penalty cases.

As the Atlanta Progressive News highlights in its analysis of the recent ruling in Davis' case, AEDPA was passed with the endorsement of Senators like Joe Biden and Ted Kennedy, who said at the time: "The proposal to limit inmates to one bite at the apple is sound in principle."

"In principle" maybe, but maybe not in practice.

The passage of AEDPA meant that evidentiary hearings, and other forms of relief, were limited as more procedural hurdles were set in place. From the beginning, there were concerns that this legislation would seriously damage the capacity of federal courts to review death penalty cases, merely for the sake of expediency.

That has certainly happened in Troy Davis' case, where compelling evidence that the state may have the wrong man is not getting a full hearing. A Vanderbilt University study of the effects of AEDPA on federal appeals in death penalty cases found that the percentage of Federal habeas appeals that resulted in evidentiary hearings has been cut in half since AEDPA became law: 19% before AEDPA, to only 9.5% afterwards.

So if fears about AEDPA's negative impact have come to pass, what about the hopes? Has the appeals process in fact "sped up"? In the Troy Davis case, the answer is clearly no. In fact, though it may seem counter-intuitive, sometimes it may be faster for a court to say "yes" than to say "no". If the District court that ruled on Davis' first Federal habeas appeal back in 2004 had said "yes", and ordered an evidentiary hearing, would we still be talking about this case, some 5 years later? Instead the court said "no", and the process of appealing that "no" continues to this day. The Vanderbilt study also looked at this question and found that, since AEDPA, Federal District court habeas proceedings have taken almost TWICE AS LONG as before AEDPA (29 months after AEDPA, as opposed to 15 months before AEDPA).

For many of us it is ethically dubious, to say the least, for a system to risk the execution of an innocent person for the sake of "speeding up" the appeals process. But to tolerate an increased risk of wrongful executions WITHOUT speeding things up makes no sense at all, either morally or practically.

This is why so many people have rallied around the Troy Davis case, because the injustice is so clear, and so pointless, and the solution - an evidentiary hearing with the recanting witnesses - is so obvious. A last ditch appeal will be filed today with the U.S. Supreme Court, but, failing that, our courts will have utterly failed to adequately review this case, and it will be up to politicians in Georgia to decide whether Troy Davis lives or dies. Help us push them to stop this execution!

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