Troy Davis, Lawrence Brewer, and Timothy McVeigh Should Still Be Alive: Certainty, Innocence, and the High Cost of Death and Immorality

Written in the weeks after the September 21, 2011 executions of Troy Davis and Lawrence Brewer, this article's contribution is its argument architecture. Metze accepts, rather than deflects, Jonah Goldberg's challenge that abolitionists can never win until they explain why McVeigh and Brewer should live, and he answers with a three-case triangulation. Davis supplies the innocence case. Recovering Coffin v. United States's treatment of the presumption of innocence as evidence itself, Metze attacks the "actual innocence" gloss of Sawyer, Herrera, and Schlup as a modern judicial invention, and proposes inverting the Schlup gateway so a petitioner prevails by showing that more likely than not one reasonable juror would have doubted, mirroring trial unanimity. Brewer supplies the certain-guilt doctrinal case: a close reading of Texas Penal Code sections 19.03(a)(2), 6.03, and 7.02 arguing that the dragging death of James Byrd Jr. was knowing murder, not the intentional capital murder the statute demands, plus a Jurek objection that kidnapping as aggravator fails to narrow the death-eligible class. McVeigh then forces the categorical case, which Metze organizes around three foci (the innocent, the financial cost, and immorality), the last developed through Evangelium Vitae, the Catechism, restorative justice theory, and a provocative claim that Catholic venirepersons may exercise mental reservation in capital voir dire. The structure lets abolitionism survive contact with its hardest facts.

If you do post-conviction work, the Davis half of this article hands you a reframing worth briefing. The presumption of innocence is not a jury instruction that expires at verdict; under Coffin v. United States it is evidence introduced in the accused's favor, and when the State's proof later collapses (here, seven of nine trial witnesses recanting), Metze argues the presumption should snap back into place. His proposed standard is the usable piece. Instead of Schlup's demand that no reasonable juror would have convicted on the new record, ask whether more likely than not one reasonable juror would have had a reasonable doubt, the same arithmetic that produces a mistrial at trial. Pair that with Justice Stevens's concurrence in the Davis transfer order suggesting AEDPA is arguably unconstitutional where it bars relief for a death row inmate who has established innocence, and with Justice Brennan's Dobbert dissent requiring courts to explain why a recantation is not credible before discarding it.

The Brewer half is a Texas mens rea template. Capital murder under section 19.03(a)(2) with kidnapping as the aggravator requires an intentional killing. Dragging a man behind a truck is textbook knowing conduct, awareness that death is reasonably certain, and Metze finds no account suggesting a conscious objective to kill. That is murder, the lesser included offense, not capital murder. Add the aggravator attack: since nearly every murder involves some restraint, kidnapping may not narrow the death-eligible class as Jurek requires. When doctrine runs out, the cost figures (California at $250 million per execution) arm clemency and legislative advocacy.

On September 21, 2011, the United States executed two men on the same day. In Georgia, Troy Davis died still insisting he did not shoot off-duty Savannah police officer Mark MacPhail. Seven of the nine witnesses against him had recanted. A pope, an ex-president, a former FBI director, and millions worldwide had asked for mercy. In Texas that same night, Lawrence Brewer died for chaining James Byrd Jr. to a pickup truck in Jasper in 1998 and dragging him to his death. Brewer was a white supremacist who told a reporter he would do it all over again. Almost no one marched for him. A decade earlier the country had executed Timothy McVeigh for the Oklahoma City bombing that killed 168 people. A conservative commentator looked at the two September executions and issued a challenge. Until death penalty opponents could explain why McVeigh and Brewer should live, they would never win the real argument. Patrick Metze, who directs the capital punishment clinic at Texas Tech law school, took the bait. His answer is the title: all three men should still be alive. Davis, because courts executed him rather than reweigh testimony its own witnesses had disowned. Brewer, because on Metze's reading of the Texas statute the evidence showed knowing murder, not the intentional capital murder that death requires. McVeigh, because vengeance heals no one, a point the victims themselves kept making. Ross Byrd, son of the man Brewer helped kill, said it plainly: "You can't fight murder with murder." The final footnote holds one more story. Brewer was the first white person Texas ever executed whose victims did not include another white person.

Here's the uncomfortable pairing this article won't let you look away from. On a single day in September 2011, your government executed a man whose conviction rested on witnesses who later took back their testimony, and a man whose guilt in a racist atrocity no one doubted. Same authority, same needle, opposite certainties. Metze's question isn't which execution should bother you more. It's whether a power that works exactly the same on the possibly innocent and the certainly guilty should exist at all, because it operates in your name and at your expense. And the expense isn't a figure of speech. He cites reports that each execution costs California taxpayers $250 million and Florida $24 million, and that California would save $1 billion over five years without the death penalty. That's money spent to get what Justice White called the pointless and needless extinction of life. The innocence risk isn't hypothetical either. Once you're convicted, even on testimony later shown to be untruthful, courts make you prove your "actual innocence" just to get back into court. Metze argues that burden turns everything the presumption of innocence is supposed to mean upside down. And the people we might expect to demand blood often don't. James Byrd Jr.'s own son said life in prison would've been fine. Byrd's sister said she forgave because hate would've eaten her alive. If the victims' families can say that, the article asks, what exactly are the rest of us getting from the machinery of death? And why are we still paying for it?

Three men, three very different cases, one argument. Troy Davis was convicted of shooting an off-duty police officer in Georgia. Seven of the nine witnesses against him later took back their testimony, and he went to his death saying he was innocent. Lawrence Brewer was a white supremacist who, with two other men, chained a Black man named James Byrd Jr. to a pickup truck in Jasper, Texas, and dragged him to his death. He showed no remorse. Timothy McVeigh bombed the federal building in Oklahoma City in 1995, killing 168 people, and almost nobody doubted he did it. Professor Metze, a longtime Texas defense lawyer, argues the government shouldn't have killed any of them. Not the man who may have been innocent, not the racist whose guilt nobody questioned, not the terrorist. His reasons: the system executes innocent people, it costs taxpayers far more than life in prison, and killing a prisoner we've already got locked up is wrong. Even Byrd's son didn't want Brewer executed. A society that says it values life, Metze argues, has to mean it every time.