Ordered by the U.S. Supreme Court last August, the unusual hearing began today in the case of Georgia death row inmate Troy Anthony Davis. Typically such hearings are held on procedural grounds; today’s hearing was to give Davis a chance to prove his innocence. The hearing came almost 20 years after a jury convicted him of killing a Savannah police officer despite no physical evidence or even any physical description, and no weapon, no fingerprints, and no DNA.

The AJC story on today’s hearing is headlined, Witnesses back off testimony against Troy Davis:

One witness after another raised their right hands Wednesday and swore to tell the truth, just like they did 19 years ago when their testimony helped put Troy Anthony Davis on death row.

This time, however, four key prosecution witnesses gave markedly different statements, either saying they never saw Davis kill a Savannah policeman or never heard him confess to the crime.

Also Wednesday, a 36-year-old prison inmate offered surprise testimony, saying in court for the first time that he witnessed another man shooting and killing Officer Mark Allen MacPhail as he rushed to help a homeless man being pistol-whipped in a Burger King parking lot late one summer night in 1989.

Seven of the nine witnesses who testified against him have recanted. Time and again on the stand today witnesses said fear of the police, fear of their own criminality catching up to them, and fear they’d face retribution caused them to lie on the witness stand. So let’s take a moment to consider the reasonableness of those fears.

Douglas A. Blackmon, author the Pulitzer prize winning book, Slavery by Another Name – The Re-Enslavement of Black Americans from the Civil War to World War II, on how the legal system in the South was systematically used to coerce tens of thousands of Black men into brutal forced labor (what Blackmon calls “neoslavery):

Across the South, from Texas and Louisiana to the Carolinas, thousands of freed black Americans simply were arrested, often on trumped up charges, and coerced into forced labor. And that persisted right up into the 1940s, when I was still a boy. […] There’s no way that anybody can read this book and come away still wondering why there is a sort of fundamental cultural suspicion among African-Americans of the judicial system, for instance. I mean, that suspicion is incredibly well-founded. The judicial system, the law enforcement system of the South became primarily an instrument of coercing people into labor and intimidating blacks away from their civil rights. That was its primary purpose, not the punishment of lawbreakers.

Read Blackmon’s book. More from him here, here, here, here, and here. So are we really so skeptical that those witnesses would tell the police what they wanted to hear out of fear?

The Supreme Court has never decided whether the Eighth Amendment ban against cruel and unusual punishment includes the execution of an inmate who proves his innocent after conviction. For Davis they set a very high bar:

When the high court ordered the hearing last August, Justice John Paul Stevens noted that no state or federal court had heard Davis’ new testimony and assessed its reliability. “The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing,” wrote Stevens, who was joined by Justices Ruth Bader Ginsburg and Stephen Breyer.

Justice Antonin Scalia, joined by Justice Clarence Thomas, dissented, calling the hearing a “fool’s errand” because Davis’ innocence claim is “a sure loser.”

A sure loser. An outrageously cavalier — even if purposely provocative — comment. Most especially so when taking into consideration that it is about a possibly innocent man who is sentenced to state death.

Davis has been a loser in a system stacked against him. That system wanted to find someone guilty and have “closure” for the family and the police force.

The case continues Thursday morning.

REMEMBER: Among those urging reconsideration of the Davis case: President Jimmy Carter, Pope Benedict XVI, Nobel laureate Archbishop Desmond Tutu, Bob Barr, and former FBI Director and judge William S. Sessions. Pulitzer Prize winning columnist Leonard Pitts arguing that sympathy for the family does not by itself lead to justice.

The D.A. on why the trial was fair and Davis deserves to die. Fuller remarks behind paywall here. My post on it here.

You can find me @jwindish, at my Public Notebook, or email me at joe-AT-joewindish-DOT-com.