Troy A. Davis Wrongfully Condemned and Former Red Brigade Terrorist Marina Petrella Rightfully Spared: Inconsistency in Applying the Rule of Law


            The Supreme Court of the United States (“SCOTUS”) declined the appeal of death row inmate Troy A. Davis yesterday.

            “[S]even of nine witnesses against him have recanted their testimony, with two claiming that the police had pressured them to testify against him. Prosecutors presented no physical evidence and no murder weapon, and three witnesses have said another man admitted to the murder.”

New York Times, p. A 15, October 15, 2008.      

            France has declined to extradite former Red Brigade terrorist Marina Petrella to Italy, where she was convicted of murder and other crimes. She had fled from Italy to France during the time when former French President François Mitterand offered asylum to Italian militants on the left if they renounced violence.  Petrella was such a militant and apparently made such a renunciation of violence. Later, France ended its asylum policy, triggering the current debate as to whether Petrella should now be handed over to Italian authorities or not.

            A few days ago, I blogged that eyewitness testimony lacking physical corroboration is inherently suspect; and that individuals’ prosociality – behavior that reaffirms group identity – may be altruistic or racist depending upon social cues.

            The cases of Davis and Petrella are examples of prosociality on a national level. Nations express their identity through the rule of law, which necessarily includes consistency and fairness in the law’s application.

            In the case of Troy A. Davis, it is neither consistent nor fair to convict on eyewitness testimony without physical evidence; and then execute Davis after the vast majority of eyewitnesses have recanted. At best, consistency and fairness dictate that Davis should be acquitted. At worst, he should receive a new trial. (SCOTUS’ refusal to hear the appeal means the State of Georgia will execute Davis soon.)

            In the case of Marina Petrella, the Government of France had formally promised asylum if people like her came to France and renounced violence. In legal terms, she was an intended beneficiary who accepted a unilateral contract; she showed up and committed no further violations of law. In return, consistency and fairness require France honor its commitment to provide her asylum – which is exactly what France has announced the intention of doing.

            These are relatively straightforward legal — and one may even argue moral — cases: SCOTUS got it wrong; France got it right. (Admittedly, tougher fact patterns exist like the Government of Columbia re-painting a helicopter with Red Cross insignia to trick FARC rebels into producing Ingrid Betancourt; or local police lying to suspects in the United States in order to coax a confession. But I leave those examples for another day.)