Published in JAMS Magazine:
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For the United States of America, the only westernized nation (other than Belarus) where the execution of humans is sanctioned by law, the quality of their mercy is decided by their peers. In this death penalty nation, the burden on those citizens who determine life or death can be a heavy weight to bear.
Time and again, capital punishment has painful consequences for the juror, as well as the condemned. For the condemned, the consequences are obvious, although the degrees of the horrors may vary. There is the anguished anticipation of the death, and the flawed methods of the execution, which in far too many cases produce painful inhumane results. Just studying the details of botched executions since the death penalty was reinstated in 1977, leaves a history of error too grotesque to ignore.
For the decider, or juror, in cases where evidence is circumstantial and/or principally reliant on witness recall, there is always the possibility of murdering an innocent. Though the defendant's guilt must be proven beyond a doubt, ominous shadows of doubt have emerged after executions - when it was already too late.
Such is the case of 26 year old Ruben Cantu, executed in Texas in 1993 for a crime he was convicted of when only seventeen.
In Ruben Cantu's case, the evidence gathered after his execution supported his innocence, making jurors who espoused his execution de facto accessories to his murder. According to the July 24, 2006 Houston Chronicle: http://www.chron.com/disp/story.mpl/front/3472872.html), "Cantu's long-silent co-defendant, David Garza, just 15 when the two boys allegedly committed a murder-robbery together, has signed a sworn affidavit saying he allowed his friend to be falsely accused, [even]though Cantu wasn't with him the night of the killing. And the lone eyewitness, the man who survived the shooting, has recanted."
Thanks to an imperfect justice system that depends too often on skewed and tainted testimony, Cantu's judge, his lawyers, and the jury of his peers became unwitting accomplices in his murder. A difficult cross to bear for the jurors, as underscored by Miriam Ward, forewoman of the jury that convicted Cantu, "We did the best we could with the information we had, but with a little extra work, a little extra effort, maybe we'd have gotten the right information. The bottom line is, an innocent person was put to death for it. We all have our finger in that."
In the case of African American gang member and Crips co-founder Tookie Williams, who was convicted of murder and executed by lethal injection in a slow death in California in December 2005, those who convicted him bore the burden of their decision for over twenty years. Tookie's case was particularly difficult because of his total transformation in prison. In his two and a half decades on death row, Tookie Williams went from legendary hard-core gang member to legendary proponent of non-violence and the dissolution of gangs.
Even if Tookie's jurors believed their death penalty decision was rightful till the end, they still witnessed the public outcry over his touted rehabilitation from criminal gang member to respected author and sage. They observed years of public disdain toward their capital punishment decision, and a concerted international effort to overturn it. Probably not the response they had envisioned when they convicted the cofounder of a notorious gang.
For the legal professionals on Tookie's case, and on all death penalty cases, the consequences of execution may be par for the course. But for jurors called upon to fulfill their civic duties, even if they supported capital punishment prior to the case, the ramifications of participating in another person's death can be momentous.
And now another potential Cantu catastrophe waits forebodingly in the courts, causing discomfort for the condemned, his family, his guilt-ridden witnesses, and his uneasy jurors.
As recently as last week, Troy Anthony Davis, a 38 year old African-American man from Georgia, convicted of killing a white policeman, received a 90 day stay of execution from his July 17th execution date. In Davis' case, like that of Cantu, the conviction was based entirely on witness testimony, although seven of the nine non-police witnesses admitted their testimonies were coerced by police. They have also recanted their stories. Nine witnesses have implicated another man in the murder.
Martina Correi, Troy Davis' older sister, a former U.S. soldier currently battling breast cancer, advocates tirelessly on her brother's behalf. She says of Troy, "When you have no gun, no gun powder residue and no physical evidence, and all the witnesses point to someone else, how can you still want to execute Troy?"
But Troy Davis' case has been plagued by questionable law as much as by questionable evidence. As reported on Amy Goodman's "Democracy Now," none of the powerful testimony on Davis' behalf has been heard because of the 1996 Anti-Terrorism and Effective Death Penalty Act signed by Bill Clinton that restricts federal reviews of state death penalty convictions. Davis' case is further compromised by a 1995 Congressional vote eliminating funding to organizations providing legal assistance to indigent prisoners on death row. The Georgia Resource Center, defending Davis, had a budget cut of over two-thirds which prevented Davis from earlier introduction of his new, hopefully exculpatory evidence. http://www.democracynow.org/article.pl?sid=07/07/16/1330218
As in the case of Ruben Cantu, Troy's faulty witnesses and his jurors, are feeling the potential burden of fostering an irreversible miscarriage of justice.
Fifteen years after they helped convict Troy Davis, two of his jurors have come forward to state they want his life spared. According to the Atlanta Journal-Constitution, one witness, Tonya Johnson, who lied in her testimony to the police, has stated, "'If Troy Anthony Davis is executed Tuesday, [I] will be in mourning. It will be hard to live with myself after what I [have] done.' Hard because Johnson believes Davis is an innocent man. Harder still because she says she did not tell the whole truth to police when they questioned her about the events that took place on a summer night in 1989. 'Fear ate at [my] soul then.'"
In 1972, The Supreme Court said in Furman v. Georgia that death penalty laws were "arbitrary and capricious." But after a ten year hiatus, the United States reinstated the death penalty in 1977. It is impossible to foresee how many innocent men and women may be executed by our flawed legal system. It is also impossible to foresee how many well meaning jurors will be duped to convict them.
Troy Davis has already sacrificed fifteen years of his life on death row. Over the next ninety days he should be afforded due process to save him from unnecessary murder, and to save his citizen jurors, and even his accusers, from a lifetime of remorse.
The quality of mercy and the "system" must improve.
To help Troy Davis, please visit Amnesty International USA at:
"Quality of Mercy"
All you hypocrites and liars
In the temple seeking gain
All you senators and lawyers
With your motives to explain
All you victims and heroes
Your petitions to complain
All you murderers and martyrs
On the fields where you lay slain
On the just and unjust alike it doth rain
And the quality of mercy is not strained
Vengeance and revenge are just two words for pain
And the quality of mercy is not strained
(Michelle Shocked, "Quality of Mercy" "Dead Man Walking" Soundtrack)