Davis Case Renews Death Penalty Controversy

MICHEL MARTIN, host:

And we just heard from an attorney who believes that Troy Davis' case deserves a reexamination. But what we wanted to ask what happens when witnesses in capital cases in general change their stories after appeals have already been exhausted. How often does this happen? How often does new evidence come too late?

Joining us to discuss this issue is Sam Millsap. He is a former district attorney for Bexar County, Texas. As a D.A., he said he was a life-long supporter of the death penalty. He now opposes capital punishment. Sam Millsap joins us from his home in San Antonio. Thanks so much for speaking with us, Mr. Millsap.

Mr. SAM MILLSAP (Former District Attorney, Bexar County, Texas): I'm glad to be with you.

MARTIN: Now as I understand it, as a prosecutor, you wanted the death sentence for a man named Ruben Cantu for armed robbery and murder in 1993. He was executed. Now I'm sure that's not the only thing. I'm sure this is a decision that comes over time. But what is it about that case that sparked you to change your mind about the death penalty?

Mr. MILLSAP: Well, before that case or before questions were raised about Mr. Cantu's possible innocence, I had made the decision to oppose the death penalty. I did that for a variety of reasons, but they - what they all centered on was my determination that the system simply does not protect or guarantee the protection of the innocent.

And death penalty cases are very different from burglary cases or shoplifting cases. You can clean those cases up after the fact, but you can't always clean up a capital murder case after the fact.

MARTIN: And you heard that Laura Moye described the particular circumstances in Troy Davis' case, is that witnesses were found who said that they lied, but those - they were - recanted their statements after the conviction. How often do you think that happens?

Mr. MILLSAP: Well, I don't know how often it happens. I do know that it happens too frequently. The, you know, there are number of cases that we've heard about around the country. The Davis case is one. In my own case, the Cantu case, is another in which key witnesses have recanted their trial testimony.

In the Cantu case, the thing that we see in the Cantu case is a situation where we'll really never know whether this recanting witness is telling the truth today or whether he was telling the truth in 1985, because it's so, it's obvious that he was so subject to manipulation at both points in time, when he was dealing with the police in 1985 and then when he was dealing with an NAACP legal investigator in 2005. And so that's the problem, is that people can be very impressionable and eyewitness testimony is very frail.

MARTIN: But isn't it possible that they're impressionable the other way, that they can be pressured to recant testimony even if it's truthful?

Mr. MILLSAP: Absolutely. In fact, the study that was recently released of the question of Mr. Cantu's innocence concluded that that's exactly what happened in the Cantu case. That the witness had been telling the truth at trial and had been manipulated, cajoled, pushed very subtly into a position of recantation. And we'll never know what the truth is, I don't think.

MARTIN: So is that - is it then your belief that the death penalty could just simply never be fairly applied because…

Mr. MILLSAP: Yeah, I think the…

MARTIN: …it's just if - humans are too fallible?

Mr. MILLSAP: I mean, the only thing that we've talked about is eyewitness testimony, but the system, the way the system is structured and the way we make these determinations, which is fine in cases that don't involve the ultimate sanction, is simply too subject to error whether you're talking about police misconduct, junk science, prosecution misconduct, errors by a judge. There's just a whole range of things that can occur that render the system incompetent to make these kinds of determinations. And that assumes that the goal is to protect the innocent.

MARTIN: Former FBI Director William Sessions wrote an op-ed piece for the Atlanta Journal-Constitution, supporting clemency for Troy Davis. And he cited that the figure of 124 death row inmates who've been freed since the death penalty was reinstated in this country. But some people - and he looked at those numbers as evidence that there's something very flawed about the system.

But others look at it and say that, you know, tens of thousands of criminal cases are adjudicated in this country every year and that not, you know, a large number but a number of them do implicate the death penalty. And some would say that those numbers indicate that actually the system works pretty well. What would you say to that?

Mr. MILLSAP: Well, I think - I understand the argument that it works well, and that was Justice Scalia's argument in Kansas versus Marsh. But what those 124 cases represent is the fact that the system is not perfect. And the question -in Texas alone, we have two cases that don't fall among those 124, in which it's almost certain that a person who was executed was, in fact, innocent: the Cameron Willingham case and the Carlos De Luna case. And there's widespread agreement that they were probably both innocent. But I don't think that the fact that 124 people have been cleared proves that the system works.

MARTIN: Okay.

Mr. MILLSAP: I think, on the other hand, that it's evidence that the system is badly flawed and that we should do away with it.

MARTIN: All right. Mr. Millsap, I have to leave it there. Thanks so much for speaking with us.

Mr. MILLSAP: Thank you.

MARTIN: Sam Millsap is a former district attorney for Bear County, Texas. He's also a member of the Constitution Project's Death Penalty Initiative.

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