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Posted by on Sep 22, 2011 in Law | 15 comments

What If I Was Wrong?

A former prosecutor remembers sleepless nights:

Some might consider that admission a sign of weakness or a lack of resolve, but in retrospect, I see those nights as ones in which I was fully human. The cost of being wrong as a prosecutor is almost unthinkable. This is especially true in a capital case, such as the recent and tumultuous end game in the Troy Davis case in Georgia. Davis’ final appeals to the state of Georgia were denied, despite the fact that seven of the nine witnesses against him had recanted their stories.

The debate that’s quickly and clearly emerging (kicked off by Andrew Cohen’s excellent piece, then underscored by Dahlia Lithwick) in the immediate aftermath of Troy Davis’ execution is between finality and mercy:

On the side of execution without further delay, the virtue upheld is that of “finality of judgment.” That is, once a verdict and judgment are rendered, it should be difficult to upset. Victims’ family members sometimes see a promise in that judgment, and finality renders a certainty to the process that some see as promoting deterrence of crime…

On the other hand, those seeking to delay the execution of Davis for reconsideration of the evidence promoted other virtues: deliberation and mercy. Unlike “finality of judgment,” these virtues are firmly rooted in the Constitution itself and the core values of Americans.

Deliberation is a predominant central virtue promoted by the Constitution…. mercy, is also an explicit part of the Constitution. The federalists insisted on the inclusion of the pardon power, for example, for the express reason that it gives the system some outlet for this core virtue…

The Troy Davis case shows us a truth: We have wandered too far from our own best virtues.

If we are to err, let it be on the side of deliberation and mercy, rather than the unsettling finality we have seen pursued by the state of Georgia. Should we choose those better virtues, we might all sleep better.

If I was wrong in my support of Troy Anthony Davis he’d have eaten his prison breakfast this morning and lived out his days in brutal captivity (I’ve been to Jackson) unless and until he was exonerated. If the confident proponents of his execution were wrong, an innocent man was murdered by the state.

Still, I did not sleep well last night.

The American people, virtually alone in the civilized world in their adamant support of the death penalty, will one day come to embrace the virtues of deliberation and mercy.

On this morning after the execution of Troy Anthony Davis we are left with the question that only history can answer: Is that day today?

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