Like any other government agency, courts respond to publicity. It affects the quality of justice an individual receives. While the measure of justice dispensed in any given case should not shaped by publicity, the unfortunate reality is that it is.

            Take for example the Texas death case of Keith Thurmond who was convicted in 2002 in Montgomery County for killing his estranged wife and her lover. His case received statewide publicity, and in particular from the Houston Chronicle, because he had a series of appointed attorneys who either did not file proper appeals or failed to file the appeals timely. The Chronicle ran a series of articles about these court-appointed death penalty attorneys who made thousands of dollars in state subsidized fees but chronically failed to earn them by either refusing or neglecting to file timely appeals for condemned inmates. The newspaper cited Thurmond’s case several times as an example of one of those mishandled cases.

            In 2006 a U.S. District Court judge issued a decision that Thurmond was “time-barred” from presenting any federal appeals, even though his appointed attorney claimed that he had missed a filing deadline because of what the Chronicle called a “broken after-hours filing machine.” The Fifth Circuit Court of Appeals upheld that district court ruling, even criticizing Thurmond’s attorney by saying he should have known about the broken after-hours filing machine because he had experienced problems with it before. In other words, it was the attorney who screwed up so Thurmond, like a number other condemned inmates before him, would have to face execution without having his case heard by the federal courts. Pretty warped judicial logic, if you ask me.

            Then the Chronicle started reporting about those condemned inmates who were executed and whose cases had not been heard by federal courts because their attorneys screwed up. Well, even in Texas where the death penalty reigns supreme that was enough to piss off bubba and all his fellow Rick Perry supporters. And that got the attention of the Fifth Circuit prompting the federal appeals court on August 17, 2009 to reverse its earlier ruling upholding the lower court “time-barred” decision and to order a hearing in the condemned inmate’s case. The Chronicle reported this new Fifth Circuit ruling criticized state prosecutors who reportedly lied to the lower court by saying Thurmond’s lawyer could have electronically filed the condemned inmate’s appeal on time. In effect, the appeals court in its latest ruling said the lower court’s “time barred” decision was not based on Thurmond’s attorney’s dereliction but rather because state prosecutors lied.

            Had it not been for the statewide publicity Thurmond’s case received, he would have been executed without a federal review like the six other condemned inmates put to death without such a review as reported by the Chronicle. Those unfortunate souls did not have Chronicle-driven publicity to make their case for justice. Thurmond did. The condemned man may yet be executed but at least he will get a federal review before the state puts him to death.

            The power of publicity also recently forced the U.S. Supreme Court to reverse itself and grant a hearing in the high-profile case of Troy Davis, a condemned inmate who has been on Georgia’s death row since 1991 for the murder of a police officer. Although the murder weapon was never found and there was no forensic evidence (DNA or fingerprints) to link Davis to the murder, the State managed to place nine witnesses on the stand who, in one way or another, linked Davis to the cop’s killing. The Georgia Supreme Court denied the initial direct appeal of his capital conviction in 1993.

            Then a strange thing happened in the Davis case as the years waned. Seven of the nine witnesses either retracted or changed their testimony. This turn of events triggered a groundswell of national and international support for the condemned inmate who faced and survived three execution dates. Prominent world leaders such as archbishop Desmond Tutu, Pope Benedict, and former U.S. President Jimmy Carter joined the ranks of those saying that Davis had been wrongfully convicted and should receive a new trial.

            The controversial case worked its way up and down both the state and federal appeals chain as the publicity intensified. Just last October the U.S. Supreme Court refused to intervene in the case paving the way for Davis’ execution. The State of Georgia moved almost immediately to execute the condemned man, but more appeals ensued—all of which were denied until the case once again reached the U.S. Supreme Court. By this time CNN and a host of other media outlets had virtually declared Davis an “innocent” black man who was about to be put to death in a southern death chamber for killing a white cop.

            That’s a compelling image, particularly now that the country has a black president. So the Supreme Court reversed itself and ruled earlier this month that it would be an “atrocious violation of our Constitution and the principles upon which it is based” if Davis’ new claims of innocence were not heard by the federal courts. The Supreme Court had that same issue before it last October but didn’t believe it would offend the Constitution if Davis were executed.

            The difference between October 2008 and August 2009? The power of publicity.

            Troy Davis certainly deserves a hearing on his innocence claims. Anytime seven out of nine witnesses alter their original trial testimony the courts have a compelling duty to review the case. But that should not be a decision ruled by the power of publicity.

            Why? Because the media doesn’t give a rat’s ass about death penalty cases unless they offer some racial, political or social peg upon which to base a story. That’s what happened in both the Thurmond and Davis cases: they provided the news media with a particular peg to illustrate the point underlying the media’s interest in a particular story angle. Whatever that is, it’s not justice.