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

Sole-authored moral-philosophical argument, doctrinally scaffolded, written in the immediate aftermath of the September 21, 2011 executions of Troy Davis in Georgia and Lawrence Brewer in Texas. Metze takes seriously the conservative challenge (voiced by Jonah Goldberg) that abolitionists cannot answer why Timothy McVeigh and Brewer should live, and structures the article to meet it. Part II reconstructs the presumption of innocence from Coffin v. United States, 156 U.S. 432 (1895) back through Blackstone, and attacks the modern "actual innocence" gloss developed across Herrera v. Collins, 506 U.S. 390 (1993), Sawyer v. Whitley, 505 U.S. 333 (1992), and Schlup v. Delo, 513 U.S. 298 (1995). Metze proposes that the Schlup standard be inverted: a habeas petitioner should prevail by showing one reasonable juror would have doubted, mirroring the trial unanimity requirement. Part III deploys a textual reading of Texas Penal Code §§19.03(a)(2), 6.03, and 7.02 to argue Brewer's conviction lacked the intentional mens rea capital murder requires, and questions whether kidnapping was a proper aggravator under Jurek v. Texas, 428 U.S. 262 (1976). Parts IV through VII pivot from doctrine to the categorical case: innocence, fiscal cost, and immorality, the last grounded in Evangelium Vitae, the Catechism, and a striking proposal that Catholic venirepersons exercise "mental reservation" in capital voir dire. The closing argument from Richard Burr in McVeigh's penalty phase becomes the article's emotional and philosophical fulcrum.

The article is organized as a three-defendant argument, each man doing a different kind of work for the thesis.

Troy Davis carries the innocence half. Convicted of killing an off-duty Savannah police officer on the testimony of nine witnesses, seven of whom later recanted, Davis was denied habeas relief and executed in Georgia. Metze uses the case to take apart the "actual innocence" doctrine the Supreme Court constructed across Herrera, Sawyer, Schlup, and the In re Davis transfer order. His move is conceptual: the presumption of innocence introduced in Coffin v. United States is itself evidence in the defendant's favor, and once the State's evidence is shown to be untruthful or recanted, the presumption snaps back into place. He proposes inverting the Schlup gateway. Instead of asking whether no reasonable juror would convict on the new record, courts should ask whether more likely than not one reasonable juror would have doubted, which tracks the trial unanimity rule. He also argues AEDPA's bar on relief for an innocent death row inmate is unconstitutional, picking up Justice Stevens's concurrence in In re Davis, 557 U.S. 952 (2009).

Lawrence Brewer carries the doctrinal-trap half. Brewer was one of three white supremacists who chained James Byrd, Jr. to a pickup truck in Jasper, Texas in 1998 and dragged him to his death. Metze, who knows the Texas capital statute as intimately as anyone writing, walks Texas Penal Code §19.03(a)(2), §6.03, and §7.02 to argue Brewer was guilty of knowing murder, not the intentional capital murder the statute requires. The dragging was reasonably certain to cause death, which is the textbook definition of knowing conduct, but Metze finds no record evidence of conscious objective to kill, the mens rea capital murder demands. He further questions whether kidnapping under §20.01(2) was made out on the facts (Byrd was last seen riding alone in the truck bed, voluntarily), and whether using kidnapping as the §19.03 aggravator narrows the death-eligible class as Jurek v. Texas, 428 U.S. 262 (1976) requires. The Brewer section is the article's bridge: even where guilt is certain, the death sentence may be doctrinally wrong.

Timothy McVeigh carries the categorical half. McVeigh's guilt for the Oklahoma City bombing was not in serious doubt, and Metze concedes this. He uses McVeigh to force the question Goldberg posed: if certainty is the test, what is left of the abolitionist case? His answer braids restorative justice (Zehr, Krause, Navajo peacemaking), Justice Douglas's warning in Furman against punishments applied selectively to the despised, and Richard Burr's closing argument in the McVeigh penalty phase, which framed McVeigh's motives as a corrupted version of qualities Americans normally celebrate (devotion to country, resistance to perceived tyranny). Burr's question, quoted at length, becomes the article's organizing question: "When hate leads to killing, do we abandon our commitment to love and compassion by killing the killer?" The conclusion ties in cost data, the ALI's 2009 withdrawal, the Catholic teaching of Evangelium Vitae, and Archbishop Tutu on State v. Makwanyane to argue abolition is the only consistent position.

Three men executed by the government: Troy Davis (Georgia, September 2011), Lawrence Brewer (Texas, the same day), Timothy McVeigh (United States, June 2001). Patrick Metze's 2011 Charleston Law Review article argues none of them should have been killed, and each case anchors a different abolitionist argument. Davis raises actual innocence (seven of nine non-physical-evidence witnesses recanted before his execution). Brewer raises the moral-categorical question (he dragged a Black man, James Byrd Jr., to death in Jasper, Texas, in 1998). McVeigh raises whether no-doubt-about-guilt changes the analysis (the Oklahoma City bombing killed 168 people). Metze argues it doesn't. For reporters covering capital cases, innocence-project work, or the moral arguments against state-sanctioned execution, the article triangulates across three of the most prominent executions of the modern era from a writer who has handled the trial side.

On September 21, 2011, two men were executed on the same day. In Georgia, Troy Davis went to the gurney still insisting he had not shot the off-duty police officer he was convicted of killing. Seven of the nine witnesses against him had recanted. In Texas, Lawrence Brewer was executed for the 1998 dragging murder of James Byrd, Jr. in Jasper, one of the most notorious hate crimes in American history. Davis drew global protest and pleas for mercy from Pope Benedict XVI, Archbishop Desmond Tutu, and a former U.S. president. Brewer drew almost none. Conservative commentators argued the difference proved abolitionists were hypocrites: until they could explain why Brewer and Timothy McVeigh should live, they could not win the real argument.

Professor Patrick Metze wrote this article to take that challenge seriously. He spent decades as a Texas criminal defense lawyer before he became a law professor and director of the criminal and capital clinics at Texas Tech, and he was not going to dodge the hard case.

For Davis, he argues the Supreme Court has invented a doctrine called "actual innocence" that quietly reverses the burden of proof. Once you are convicted, even on testimony later shown to be false, you have to prove your innocence to get a new trial. Metze argues this gets American legal tradition exactly backward. He proposes that a single reasonable juror's doubt should be enough, the same standard that governs the trial itself.

For Brewer, he walks through the Texas capital murder statute and shows that the evidence supported knowing murder, not the intentional capital murder the statute requires. Brewer could have been convicted of murder and sentenced to life. The state chose death.

For McVeigh, the hardest case, Metze does not pretend there is a legal escape hatch. He turns instead to the closing argument McVeigh's lawyer Richard Burr made at the penalty phase, and to the testimony of Susan Urbach, an Oklahoma City bombing survivor who spoke of scars as stories of wounding and healing. Killing the killer, Burr argued, does not produce the healing. Metze agrees, and closes with Archbishop Tutu on South Africa's abolition: a country that means what it says about reverence for life does not kill its prisoners, no matter who they are.

On September 21, 2011, two men were executed on the same day. Troy Davis in Georgia and Lawrence Brewer in Texas. Troy Davis was a Black man almost certainly innocent of the murder he was killed for. Lawrence Brewer was a white supremacist who had dragged a Black man, James Byrd Jr., to death behind a truck. Ten years earlier, Timothy McVeigh had been executed for bombing the federal building in Oklahoma City and killing 168 people.

Professor Metze argues that all three of them should still be alive. Troy Davis because we shouldn't kill people who might be innocent. Brewer because state-sanctioned killing teaches the same lesson he was being killed for, that some lives are disposable. McVeigh because the same logic applies even when there is no doubt about guilt. The argument isn't that the men weren't terrible. It's that we shouldn't be the kind of country that decides to kill them.