Tuesday, August 24, 2010

Innocence Wins, Innocents Still Lose

The title of this post may be a shade deceptive.  As I say routinely, I don't know what happened.  And, frankly, I don't much care.
But I know this much.  Knowing what we know now, these guys should never have been convicted. 
Instead, they find themselves on death row.  The time is drawing close.
I could be referring to any number of folks, but I have two in mind.
There's Kevin Keith.  Last week, the Ohio Parole Board declared that he wasn't factually innocent and should, therefore, be killed.  I've said repeatedly, I don't know what happened that night in February 1994 when Keith did or did not shoot 6 people.  The implication is that they'd have taken a different position if they decided he didn't do it.
Now there's Troy Davis.  You remember Troy.  All those witnesses who recanted.  And the guy who confessed.  And the Supremes told the lower court judge to determine if he was innocent but didn't say on what basis or how or what would follow from the determination.  And the judge held a hearing and excluded much of the evidence Troy's lawyers wanted to present.  And now he's issued this 174 page Order.
The bottom line is in the first paragraph.
For the reasons that follow, the Court concludes that while executing an innocent person would violate the United States Constitution, Mr. Davis has failed to prove his innocence.
That first clause is terrific.  It may seem self-evident, but it's not.  The Supremes have never said it.  It's never formally been adopted as the law of the land.  It is, in fact, a wholly controversial claim.  If executing one who is actually innocent, by whatever measure we use to test it, is a constitutional violation, then the courts have to grapple with freestanding claims of innocence in capital habeas cases.  Until now, the courts have refused to entertain those claims.
Like I said, no small thing.
But for Troy Davis, it's nothing at all.  Because there's that second clause.  He didn't prove it to the satisfaction of Judge Moore.
But when you get right down to it, isn't it the same point?  Given what we know now, would a reasonable jury have found him guilty beyond a reasonable doubt?  Would it have decided to kill the guy?
If not, what are we doing?  And, in any event, why don't we even ask that question?
This isn't the raving of an abolitionist.  (Well, yeah, it is.  But I'm not speaking as an abolitionist here.)  It's the question you need to answer even if you think the government should kill.  Should it kill even if the defendant, properly tried and with all available information, would have gotten life?  Should it kill because it was once a good idea even if it isn't now?
Should killing be the default?
It's really sweet, gives you a warm feeling all over to know that there's some sentiment that killing factually innocent people is a bad idea.  Now, what about the legally innocent but for bad counsel, hidden evidence, lying witnesses, mistaken witnesses, junk science, junk witnesses, aggravated newpaper editors and talk radio, racism, class prejudice, the accidents of geography and birth?  I could go on.
They still don't have to kill Kevin Keith.  Troy Davis has litigation ahead.  But their time is running out.  Things aren't looking good for them right now.  
And there are a few thousand others on the row.
Innocence may be a start, but it isn't nearly enough.

From Songs of Innocence and of Experience by William Blake
"On Another's Sorrow" (Songs of Innocence)
Can I see another's woe,
Can I see another's grief,
And not be in sorrow too?
And not seek for kind relief?

Can I see a falling tear,
Can a father see his child
And not feel my sorrow's share?
Weep, nor be with sorrow fill'd?

Can a mother sit and hear
An infant groan, an infant fear?
No, no! never can it be!
Never, never can it be!

And can he who smiles on all
Hear the wren with sorrows small,
Hear the small bird's grief & care,
Hear the woes that infants bear,

And not sit beside the nest,
Pouring pity in their breast;
And not sit the cradle near,
Weeping tear on infant's tear;

And not sit both night & day,
Wiping all our tears away?
O! no, never can it be!
Never, never can it be!

He doth give his joy to all;
He becomes an infant small;
He becomes a man of woe;
He doth feel the sorrow too.

Think not thou canst sigh a sigh,
And thy maker is not by;
Think not thou canst weep a tear,
And thy maker is not near.

O! he gives to us his joy
That our grief he may destroy;
Till our grief is fled & gone
He doth sit by us and moan. 

"The Voice of the Ancient Bard" (Songs of Experience)
Youth of delight, come hither,
And see the opening morn,
Image of truth new-born.
Doubt is fled & clouds of reason,
Dark disputes & artful teazing.
Folly is an endless maze,
Tangled roots perplex her ways.
How many have fallen there!
They stumble all night over bones of the dead,
And feel they know not what but care,
And wish to lead others, when they should be led.

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