John Schwartz of the New York Times called me yesterday to get my take on the Troy Davis execution (which was then still several hours away). His article appears in the Times today.
The quotations he attributes to me are correct but not complete. I do not attribute this to any ill will or bias on his part. Writers have word limits, and it's simply not possible to get in everything an interviewee says. I want to take this opportunity, however, to add to what appears in the article.
The portion in which I am quoted is this:
William Otis, a former federal prosecutor and special White House counsel under President George W. Bush, said "there has to be finality for any system that's going to work," but added: "To say that there has to be finality is not to say that things should be rushed. The primary duty of courts is to get it right."
A problem for Mr. Davis's defenders, he said, is that judges tend to look at recantations, especially from witnesses who are in prison, "with a flinty eye."
Mr. Otis added: "The question is not whether you can avoid errors. The only realistic question in an adult mind is which set of errors you're going to accept. You have to be mature and honest about it, and understand there is the risk of executing an innocent person."
It is certainly true that the primary duty of courts is to get it right, and that a rush to judgment must be avoided. But no such thing happened in the Davis case. Appellate courts looked at it a dozen times over the course of two decades. To my knowledge, not a single judge or Justice took the view that the evidence, then or now, showed that Davis was innocent.
It is also true, as I said and Mr. Schwartz reports, that judges tend to look at recantations with a flinty eye. But this is not because judges are simply crabbed. It's because judges know that recantations are a dime a dozen. Witnesses interviewed many years after the trial, with little or nothing to lose, and having been massaged by defense counsel or counsel's allies or agents in ways unknown, recant at the drop of a hat. I saw this time and again in my career as a federal prosecutor.
The way to test the reliability of a recantation is through examination and cross examination. Here, two of the supposed recanters signed affidavits, but did not appear at the district court's hearing. They could have been called by defense counsel but were not. Among those who did appear, the court determined that, as to several of them, the testimony simply was not credible -- "smoke and mirrors," as the court noted.
Mr. Schwartz is also correct in noting that I said, as I have said many times here and elsewhere, that, human beings and human institutions being fallible, there is a risk of executing an innocent person. But the article missed my main point, which was this: There is a lethal risk whichever way we turn. The judicial system is fallible (although in the post-Gregg era of super due process, the likelihood of error has been considerably reduced). But there is also fallibility -- indeed, experience shows, vastly greater fallibility -- in the corrections system. Because of its errors, there is an enhanced likelihood of losing the life of an innocent person when we do not impose the death penalty. Indeed it is not merely a likelihood. It's a matter of documented fact.
This is true mostly when convicted murderers get sent to prison and do it again, this time to another inmate, or a guard, counselor, rival gang member, etc. Murders like that happen frequently; you read about one every few weeks. But it has also happened even when prison security, as usually thought of, works just fine.
The case I gave Mr. Schwartz was one I have cited here, Allen v. Woodford, 395 F.3d 979 (9th Cir. 2005) (I did not, however, give him the citation). The deadly mistake of not executing Allen when it first would have been legally possible is pungently explained (and, in effect, lamented) by a unanimous Ninth Circuit panel in its opinion affirming Allen's later death sentence. It was a death sentence imposed only after Allen had arranged three additional murders while serving his life sentence for the first one. As the Ninth Circuit noted, in an opinion by Clinton-appointed Judge Kim Wardlaw:
Evidence of Allen's guilt is overwhelming. Given the nature of his crimes, sentencing him to another life term would achieve none of the traditional purposes underlying punishment. Allen continues to pose a threat to society, indeed to those very persons who testified against him in the Fran's Market triple-murder trial here at issue, and has proven that he is beyond rehabilitation. He has shown himself more than capable of arranging murders from behind bars. If the death penalty is to serve any purpose at all, it is to prevent the very sort of murderous conduct for which Allen was convicted.
I paraphrased that paragraph in my conversation with Mr. Schwartz because I was unable to recite it verbatim from memory. But the paraphase was very close.
It was, I submit, an incorrect portrayal of my views to cut them off after I said that, when we impose the death penalty, there is a chance of executing an innocent person. At least one additional phrase should have been added, to wit, that there is a considerably greater chance that the law will implicate itself in killing an innocent person if we abolish the death penalty.
Again, while I don't attribute any bad intent to Mr. Schwartz, I very much wish that additional phrase had made it into his article.*
*Minor matter: I was Special White House Counsel for President George H. W. Bush, not President George W. Bush, although I was a political appointee in the DEA during the latter's administration.