Most of today’s daf addresses the stoning of Achan during the conquer of the city of Ai, with the sages debating the gravity of his sins, the collective punishment, and the method of execution. This digression is apropos the previous page’s focus on execution procedures. At the end of the page, though, the sages return to matters of postconviction review. What happens if a person declares, on the verge of being executed, that he is innocent?
As habeas corpus connoisseurs know, a claim of actual innocence, even when accompanied by proof, is not immediate grounds for reversal. In Herrera v. Collins, Chief Justice Rehnquist wrote a blood-curdling majority opinion according to which executing a man who makes a claim of innocence based on new evidence does not violate the Eighth Amendment unless some constitutional violation is stated. The only thing actual innocence can do for you is excuse your procedural default, your failure to raise proper arguments in previous hearings (in other words, actual innocence overcomes the Cause and Prejudice threshold test for even entering the habeas process.) In Schlup v. Delo, a man pursued habeas relief for his conviction of the death of a fellow inmate on the word of two corrections officers who had witnessed the murder. But on habeas, Schlup wanted to introduce a videotape from a surveillance camera showing him at a different location in the prison at the time of the murder. Because the videotape evidence had not been presented at trial, ordinarily Schlup would have been barred from presenting it on habeas; but because of his persuasive claim of actual innocence, this initial barrier was removed.
How would someone arguing actual innocence fare before the Sanhedrin? Not that great, as it turns out:
תָּנוּ רַבָּנַן: מַעֲשֶׂה בְּאָדָם אֶחָד שֶׁיָּצָא לֵיהָרֵג. אָמַר: אִם יֵשׁ בִּי עָוֹן זֶה, לֹא תְּהֵא מִיתָתִי כַּפָּרָה לְכׇל עֲוֹנוֹתַי. וְאִם אֵין בִּי עָוֹן זֶה, תְּהֵא מִיתָתִי כַּפָּרָה לְכׇל עֲוֹנוֹתַי, וּבֵית דִּין וְכׇל יִשְׂרָאֵל מְנוּקִּין, וְהָעֵדִים לֹא תְּהֵא לָהֶם מְחִילָה לְעוֹלָם. וּכְשֶׁשָּׁמְעוּ חֲכָמִים בַּדָּבָר, אָמְרוּ: לְהַחְזִירוֹ אִי אֶפְשָׁר, שֶׁכְּבָר נִגְזְרָה גְּזֵירָה. אֶלָּא יֵהָרֵג, וִיהֵא קוֹלָר תָּלוּי בְּצַוַּאר עֵדִים.
The Sages taught: An incident occurred involving a person who was being taken out to be executed after having been convicted by the court. He said: If I committed this sin for which I am being executed, let my death not be an atonement for all my sins; but if I did not commit this sin for which I am being put to death, let my death be an atonement for all my sins. And the court that convicted me and all the people of Israel are clear of responsibility, but the witnesses who testified falsely against me will never be forgiven. And when the Sages heard this, they said: It is impossible to bring him back to court and reconsider the verdict, as the decree has already been decreed. Rather, he shall be executed, and the chain of responsibility for his wrongful execution hangs around the necks of the witnesses.
This chilling story involves a man who claims, albeit without evidence, that he is innocent. He’s given up hope of justice emerging for him at the last minute, and expresses his willingness to face death for other sins he might have committed, but launches a last-words accusation against the witnesses who perjuted themselves to incriminate him. The man from the story is echoed, almost word for word, by Herrera, who before his 1993 execution said: “I am innocent, innocent, innocent. And something very wrong is happening tonight.”
Chief Justice Rehnquist would have found some likeminded friends among the Bavli sages. The gemara continues to ask whether it isn’t obvious that a claim of innocence without proof could not lead to a reversal of judgment. But the sages continue to state that, even in the face of witnesses recanting testimony, the execution decree stands:
פְּשִׁיטָא, כֹּל כְּמִינֵּיהּ? לָא צְרִיכָא דְּקָא הָדְרִי בְּהוּ סָהֲדִי.
The Gemara asks: Isn’t it obvious that he should be executed? Is it in his power to have his sentence overturned just because he says he is innocent? The Gemara answers: No, it is necessary to state that the condemned man is executed even when the witnesses retracted their testimony.
The reason for this is a classic appeal to finality:
וְכִי הָדְרִי בְּהוּ, מַאי הָוֵי? כֵּיוָן שֶׁהִגִּיד, שׁוּב אֵינוֹ חוֹזֵר וּמַגִּיד! לָא צְרִיכָא, דְּאַף עַל גַּב דְּקָא יָהֲבִי טַעְמָא לְמִילְּתַיְיהוּ, כִּי הָהוּא מַעֲשֶׂה דְּבַעְיָא מֹכְסָא.
The Gemara asks: Even if the witnesses retracted their testimony, what of it? It is still clear that the condemned man is to be executed, as the halakha is that once a witness has stated his testimony, he may not then state a revision of that testimony. In other words, a witness’s retraction of his testimony has no validity. The Gemara answers: No, it is necessary to state that the condemned man is executed even when the witnesses retracted their testimony and gave an explanation for having lied in their initial statement. This is like that incident involving Ba’aya the tax collector, where it was discovered that witnesses had falsely accused the son of Rabbi Shimon ben Shataḥ in revenge for the son’s having sentenced to death for sorcery the witnesses’ relatives.
Why would the Talmud not make room for recanting witnesses to disavow their perjured testimony in time? One can glean two reasons. First, there is the matter of incentivizing witnesses to tell the truth; providing incriminating testimony has consequences in the real world, which people don’t like to face. In the second season of the podcast Proof, Jacinda Davis and Susan Simpson interview the people who testified against Jake Silva at his trial for the murder of Renée Ramos. It’s clear from the interviews that these witnesses, teenagers themselves at the time, were pressured by the police, and didn’t quite know what they were talking about. Yet when prodded to consider the consequences of their testimony–two likely wrongful convictions, Ty murdered behind bars, Jake incarcerated for decades and savagely attacked by another prisoner–they are embarrassed and evasive, as if they don’t want to confront the consequences. Having the consequences play out is harsh, to say the least, and it is a lesson for everyone else to do the right thing.
The second reason has to do with undermining the credibility of the witnesses. The gemara takes the trouble to state that the sentence still stands even after the witnesses provide an explanation for their perjury. This is a tough pill to swallow, and it is a grim reminder of the injustice of the Troy Davis case, in which seven of the nine prosecution witnesses recanted, citing police coercion. But when one now says that they lied before, without cross examination or a court proceeding to examine their veracity, what can we say about their credibility now in light of their lack of credibility then? Where one stands on these matters might correlate quite a bit with one’s position on the spectrum between Packer’s Due Process and Crime Control models. Due Process fans will urge to halt the execution, reopen the proceeding, hear the recanting witnesses, and see what’s what. Crime Control fans will urge an end, at some point, to the proceedings, so that closure can begin. Most of us are somewhere along that spectrum.
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