Between The Lines Online: Supreme Misgivings

Talk about judicial activism. Late last month, the U.S. Supreme Court issued a landmark opinion in the case of Atkins v. Virginia that outlawed executing the mentally retarded. You would think that the stays of execution granted pending the outcome of that decision would now be permanent. But that underestimates the power of "El Nino"-Justice Antonin Scalia.

He's sore about being on the losing end of an historic decision and is doing something about it. On Aug. 13, a Texan named Brian Davis who is arguably mentally retarded-and possibly innocent of the crime-is scheduled to die.

Davis was convicted of stabbing Michael Foster to death in Foster's apartment in 1991, then leaving a chilling signature. Here's the confession: "I stabbed Michael several more times in the chest and stomach area and he collapsed in the living room in front of the breakfast bar. Unsure what to do next, I tried to make the scene look like skinheads had been there. I carved a swastika on his abdomen."

Pretty sick stuff. The only problem is, that confession comes from Davis's ex-wife, Tina McDonald. Every single piece of physical evidence pointed to McDonald, not Davis. In fact, McDonald, who is clearly much smarter than her ex, wrote two longhand confessions, one as recently as last October. Unfortunately for Brian Davis, he, too, confessed (I've seen that videotape); he now says that prosecutors told him they'd send her-a mother-away forever but he could get out after 20 years or so and he agreed to take a bullet for the woman he loved. On the basis of Davis' confession alone, he was convicted and sentenced to die in Texas.

REASONABLE DOUBT?

I received a letter from Tina McDonald recently saying that Davis did kill Foster and that her two confessions were bogus. Maybe so. All of the confessions and recantations by this lowlife pair (they were both neo-Nazis for a time and convicted of other crimes) make my head hurt. But they also introduce reasonable doubt, especially when you're talking about a man's life. This is particularly true because there is a history of mentally impaired suspects confessing to crimes they did not commit. What if Tina McDonald turns around and confesses a third time but Brian Davis has already been executed? Too late.