by Sarah Joseph

Troy Davis died late on Wednesday 21 September, executed by lethal injection in Jackson, Georgia for the murder in 1991 of off-duty Savannah police officer Mark MacPhail.  His execution provoked worldwide outrage, given that clear doubts over his guilt existed. Seven of nine witnesses had recanted from their testimony at his trial, while nine other witnesses implicated another, Sylvester Coles (one of the non-recanting witnesses), as the murderer. No physical evidence, beyond his presence at the scene, linked Davis to the murder for which he was executed.

The US is a party to the International Covenant on Civil and Political Rights. Has Davis’s execution breached its international human rights obligations under that Covenant?  The answer may seem easy but it’s not.  Below I speculate on how a case brought against the US under the Optional Protocol to the ICCPR in respect of Davis might have panned out. The Optional Protocol allows for individual petitions to the body which supervises implementation of the ICCPR, the UN Human Rights Committee. The exercise is, unfortunately, hypothetical as the US is not a party to that Protocol.

The right to life

Article 6 of the Covenant recognises the right to life.  Yet the Covenant allows for the death penalty, perhaps not surprising given it was adopted by the United Nations in 1966 at a time when the majority of States still executed people.  The Second Optional Protocol to the ICCPR, which came into force in 1991, prohibits the death penalty but the US, unsurprisingly, is not a party.

Article 6(2) of the ICCPR limits the use of the death penalty to “the most serious crimes”, which clearly includes murder.  Clemency must be available in all death penalty cases under Article 6(4). Georgia, unusually, does not vest the power to grant a pardon in its Governor. Rather, it is vested in the Georgia State Board of Pardons and Paroles. There is no reason to believe that the investiture of such power in that Board is a breach of Article 6(4), and its breadth of discretion in granting clemency seems to satisfy that provision.

Trial procedures, appeals and clemency

A breach of Article 6, along with a breach of the fair trial provision Article 14, will arise if a death penalty is imposed (indeed, even if it is yet to be carried out) after an unfair trial.  So what actually happened in Davis’s trials? Davis was convicted, largely on circumstantial and eyewitness evidence, in his first trial in 1991. His first set of appeals failed. From 1996 the witnesses started changing their stories.  Davis sought a retrial on that basis. He came close, with the Georgia Supreme Court ruling 4:3 against a retrial in 2007.

In 2009, the US Supreme Court ordered that the evidence of Davis’s innocence be considered by the Savannah Federal Court, which duly took place before Justice William Moore in 2010.  In that hearing, Moore doubted the credibility of most of the recanting witnesses who appeared before him, and criticised the defence for failing to call the other witnesses, instead relying on written affidavits.  Many of the recantations alleged coercion of earlier statements by the police; Moore found that those statements were effectively rebutted by police witnesses for the prosecution. He was particularly scathing of the defence’s decision not to ensure the appearance of Coles, which led him to exclude the hearsay evidence of Coles’ identity as the real murderer.  There seems little doubt that Davis’s defence team did not perform well at the Moore trial.  The belated decision to try to subpoena Coles, when they had months of notice of the hearing, was particularly egregious, or, in the words of Donald E. Wilkes Jr, a Professor of Law at the University of Georgia who followed the case, “double plus ungood”.

The Moore trial was the last substantive trial for Troy Davis.  Further appeals were rejected with little comment.  He sought a last-minute stay of execution from the Supreme Court on his day of execution, resulting in a delay to his execution by just over four hours while it considered, and ultimately rejected, his final petition.

The right to fair trial in Article 14 of the ICCPR has been at issue in many cases against Caribbean countries before the UN Human Rights Committee. In many of these cases, the complainant has been sentenced to death after a murder conviction, and has complained of a biased judge, inadequate consideration of evidence, and police malpractice. The Human Rights Committee commonly dismisses such cases due to a lack of clear evidence that the trial process was manifestly arbitrary or amounted to a denial of justice.  Such findings may seem disappointing but they are not surprising.  The Committee lacks the fact finding capabilities of municipal courts, and has no capacity to hear oral evidence or view the demeanour of witnesses. It will therefore only “overrule” local court findings where those findings are obviously untenable. I doubt the Committee would find enough to be blatantly wrong in the evaluation of evidence within the various Troy Davis trials to rule that the trials were actually unfair.

Perhaps it is possible that the Human Rights Committee would find a breach of fair trial entailed in Moore’s failure to adjourn the case while Coles was subpoenaed, given that Coles’ presence was so crucial and a life was at stake.  The defence team’s blunder in this regard was perhaps so obvious that Moore should have ensured that Davis wasn’t fatally prejudiced by their incompetence.  Certainly, he should have done so if the defence had asked for an adjournment: I do not know if they did. If they did not, it is only on the rarest occasions that the Human Rights Committee will find that a court is required to step in to “cure” the incompetent tactics of lawyers.

Death penalty-friendly juries

An issue that has never been brought to the Human Rights Committee concerns the nature of the jury which sentenced Davis to death.  Davis had his sentence determined by a “death qualified jury”. Persons who are categorically opposed to the death penalty are excluded from juries in cases where the jury may impose death as a possible sentence.  There is serious doubt over whether such juries are truly representative of the community, so it is surely arguable that their conclusions regarding guilt and appropriate sentence can be challenged as a breach of the right to a fair trial under article 14 of the ICCPR.

Proving innocence

Another possible basis upon which to establish a breach of his fair trial rights would be to target the burden of proof placed on Davis in his various attempts to obtain a retrial.  The standard of proof imposed upon Davis as the effective appellant in that 2010 trial was extraordinarily high.  Davis was required to prove his innocence, rather than establish reasonable doubt as to his guilt.  While Moore ultimately found that “most reasonable jurors” would have convicted Davis after he had heard the new evidence, that statement seemed to concede that some reasonable jurors would not.  Moore himself conceded that the prosecution case was “not ironclad”.  Such findings on appeal may seem a reasonable basis to turn down an appeal as perhaps a judge should not displace a jury verdict that is not manifestly wrong.  However, the findings are simply not appropriate when a person’s life is at stake.  Given the difficulty in proving innocence for a likely under-resourced defendant over twenty years after the crime, surely a more appropriate requirement would be for the defendant be required to prove that substantial doubt as to guilt existed.  And most people seem to agree that substantial doubt over Davis’s guilt did exist. Otherwise the execution of the innocent, as may have occurred last week in Georgia, becomes more likely.

Judge Moore agreed that the execution of an innocent person would breach the US Constitution, but he did not find Davis to be innocent. The US Supreme Court has never enunciated such a principle, though perhaps it was implied in its 2009 decision to remit the case to Moore’s court. However, Justices Scalia and Thomas are on record as denying such a principle. The high hurdle of “proving innocence” placed on Davis, a difficult task 21 years after the murder, could breach the ICCPR.  The Human Rights Committee has certainly been known to impose higher due process standards in death penalty cases compared to other criminal cases for obvious reasons:  the judicially sanctioned killing of a person is an increasing anachronism in the world and the failure to take all steps to avoid the killing of the innocent is intuitively abominable.

Cruel inhuman and degrading treatment

A cruel method of execution will breach the prohibition on torture and ill treatment in Article 7.  Lethal injection has been found not to breach Article 7.  However that question has not been considered by the UN Human Rights Committee for over a decade, so there may be scope for a change of heart as more recent studies indicate that the method is not as painless as has been presumed.  It may be noted the US Supreme Court approved the constitutionality of the method in 2008.

Davis spent over 20 years on death row. There are international precedents indicating that such a long time spent anticipating one’s ever-approaching date with an executioner gives rise to cruel and inhuman treatment in the form of the “death row phenomenon”.  For example, the Privy Council has ruled in a case concerning the death penalty in Jamaica that no one should spend more than five years on death row. However, the Human Rights Committee has rejected the death row phenomenon as being a breach of the ICCPR. While it recognises the potentially unbearable anxiety entailed in such a long wait, its reasoning is that it does not wish to encourage swifter executions and the foreclosing of possibilities for appeals or clemency.  In its view, “life on death row, harsh as it may be, is preferable to death”.

Violations may arise with regard to the fact that Davis’s execution date was set four times. His first stay was granted one day before the scheduled execution; his second stay was granted two hours before his execution date; his third stay was granted three days before his execution date. On Wednesday, he received a last minute reprieve which lasted just over four hours. The Human Rights Committee has found that the issuance of stay of execution 15 minutes before execution in a case against St Vincent and the Grenadines is not a breach of Article 7.  Furthermore, the stays of Davis’s execution were largely prompted by the actions of his own legal team.  Nevertheless, repeated preparations for death followed by repeated belated stays could represent a materially different circumstance that does give rise to violations of Article 7.

Racial Discrimination

There are also systemic problems with the death penalty in the US, the most well known being its racist application.  Statistics show that non-whites, particularly African Americans, are more likely to receive capital sentences. Similarly, capital sentences are more likely to be imposed if the victim is white.  Such systemic problems however are difficult to prove as a contributing factor in the instance of the imposition of a single death sentence, like that carried out on Troy Davis, an African American convicted of killing a white policeman.

Conclusion

The execution of Troy Davis in my opinion probably did breach the US’s obligations under the ICCPR, though that conclusion is not clear-cut. The best arguments probably arise with regard to possible breaches of Article 14 entailed in the standard of proof applied in all trials bar his first, and conviction and sentencing by a death qualified jury in that initial trial, as well as cruelty in being subjected to four late reprieves prior to actual execution.

The ICCPR as a tool to attack the US death penalty is limited by its anachronistic allowance of the death penalty and the limits of international supervision as a means of redressing flaws in domestic trials, and of course, more fundamentally, the US’s failure to ratify the Optional Protocol.  It is also limited by the low visibility within the US of its international human rights obligations, which has contributed to general disdain for those obligations exhibited by many politicians and commentators.  Of more use is the fact that the grisly ritualistic spectre of the “ticking down” to Davis’s death, sensationally interrupted and then put back on course by the belated US Supreme Court process, was probably the most “watched” execution in history, given its massive global audience via social media and 24 hour news channels.  Anti-death penalty advocates must leverage that global and local disgust and outrage over Davis’s death to build up sustained momentum against capital punishment.

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