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The Machinery of Death

In 1991, Troy Davis was convicted by a Georgia jury of killing a policeman two years earlier, and sentenced to death.  No gun was found, no forensic evidence linked Davis to the shooting, and within a few years seven of the nine witnesses against him had recanted, claiming that they'd been coerced into making false statements by the police; several stated that the real shooter had been the man who'd originally fingered Davis to the police.

The debate over whether Davis is innocent has gone on through the years -- even former FBI head William Sessions, a death penalty supporter, has championed his cause -- but no Federal court has even addressed that issue, because of the provisions of the Anti-Terrorism and Effective Death Penalty Act passed by Congress in 1995, which greatly limited Federal habeas review of state convictions.  On Monday, the US Supreme Court ordered the Federal District Court to "receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner's innocence."  The lines were clearly drawn by the concurring opinion of Justice Stevens:

The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.

and the dissenting opinion of Justice Scalia

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable.

Davis will get his hearing.  After that, who knows?  Perhaps at that point we will continue the debate about whether a person actually committed the crime for which we are putting him to death is a relevant consideration.

Jason Getsy wasn't as lucky as Davis; the State of Ohio executed him this past Tuesday morning.  Getsy was hired with two other men to kill Charles Serafino; they broke into Serafino's house back in 1995 and only wounded him, but killed his mother.  Justice Lundberg Stratton's concurring opinion in the decision which affirmed Getsy's death sentence paints an horrific picture of the crime:

A review of the testimony of witnesses to the criminal plot reveals not a defendant who operated under duress, but a defendant who seemingly enjoyed committing the crimes. Witness Joshua Koch described defendant's mood after the crimes as happy, relaxed, and laughing. Koch testified that defendant stated that after he shot at Serafino a couple of times, he kicked in the bathroom door and Serafino looked up at him, their eyes met, and he (defendant) knew that he (Serafino) was going to die.  Serafino, himself, testified that defendant looked directly into his eyes as he shot him in the face. Koch testified that defendant said he went up to Mrs. Serafino and by that time, she was screaming so loud, it was annoying him; so he walked up to her, put his boot on her head, put the .357 Magnum to her head, said, "Die, bitch," and squeezed the trigger. Koch further testified that defendant told him that he got the blood on his boots from stepping on Mrs. Serafino's face.

But while there has never been any question of Getsy's guilt, troubling questions as to the propriety of the sentence persist.  The killing was ordered by John Santine, a man whom Getsy, 19 at the time, believed to have mob connections; Getsy claimed that he believed Santine would kill him if he did not carry out the killing, and the police testified that Getsy was plainly afraid of Santine during the interrogation.  The two other participants in the actual shooting got plea bargains which resulted in sentences of parole eligibility after 13½ and 36 years; Getsy was never offered a plea.  Santine, the man behind the whole thing, wound up with a 35-year sentence, because the jury acquitted him of the capital specification of murder for hire.  This resulted in the anomalous situation of Getsy being sentenced to death for carrying out an order to kill which another jury determined had never been given.  This served as the basis for a 6th Circuit panel granting Getsy habeas relief, only to have the full court vacate that decision and uphold Getsy's sentence en banc.  The proportionality review in the Ohio Supreme Court's opinion isn't terribly persuasive; the court notes that it's "troubled" by the result in Santine's case, and finds that Getsy was cooperative with the police and remorseful.  If Getsy had any prior criminal record, the opinion doesn't mention it.  Nonetheless, the court unanimously affirmed the sentence.

The parole board, by a 5-2 vote, had recommended that Getsy's sentence be commuted, but Gov. Strickland rejected that last week.  On Monday night, the US Supreme Court denied a stay in Getsy's case, by a 5-4 vote; newly-confimed Justice Sonia Sotomayor voted with Justices Stevens, Ginsburg, and Breyer to grant the stay.  So on Tuesday morning Jason Getsy was put to death.

You can make the arguments standard in any death penalty case:  that the world is a better place without Jason Getsy, or that no purpose was served by killing him.  I don't know what the answer is to those questions.  But what I do know is that in the last two years, seventy-two people have been executed in this country, and Ohio, with five of them, is the only non-Southern state to have done so.

Here's one more quote, from one more judge, that seems appropriate; Harry Blackmun's 1994 dissent in Callins v. Collins:

From this day forward, I no longer shall tinker with the machinery of death.  For more than 20 years I have endeavored -- indeed, I have struggled -- along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.  Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.

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