( CNN ) -- When I was a federal prosecutor , I had some sleepless nights . On a few occasions , it was after I had lost at trial ; I would lie in bed and think of what I did wrong . Other times , though , my sleepless hours came after I had won a trial or gotten what I wanted at sentencing . The haunting question was always the same : What if I was wrong ? Some might consider that admission a sign of weakness or a lack of resolve , but in retrospect , I see those nights as ones in which I was fully human . The cost of being wrong as a prosecutor is almost unthinkable . This is especially true in a capital case , such as the recent and tumultuous end game in the Troy Davis case in Georgia . Davis ' final appeals to the state of Georgia were denied , despite the fact that seven of the nine witnesses against him had recanted their stories . His last hope , the U.S. Supreme Court , denied his application for a stay of execution on Wednesday night , sealing his fate . He was executed shortly after 11 p.m . The meaningful cases in law almost always involve a clash of virtues . School prayer cases , for instance , sometimes balance two virtues reflected in the Constitution itself : The guarantee of free exercise of religion , and a bar on the establishment of a state religion . In the Troy Davis case , what virtues were in conflict ? On the side of execution without further delay , the virtue upheld is that of `` finality of judgment . '' That is , once a verdict and judgment are rendered , it should be difficult to upset . Victims ' family members sometimes see a promise in that judgment , and finality renders a certainty to the process that some see as promoting deterrence of crime . Congress , in passing bills such as 1996 's Anti-Terrorism and Effective Death Penalty Act ( which strictly limited the ability of someone like Troy Davis to receive relief by petitioning for a writ of habeas corpus ) , sought to promote this value . The Supreme Court has also repeatedly cited `` finality of judgment '' as an important value in cutting off appeals . Other than the mention of capital punishment itself , it is hard to see much support in the Constitution for the virtue of finality . On the other hand , those seeking to delay the execution of Davis for reconsideration of the evidence promoted other virtues : deliberation and mercy . Unlike `` finality of judgment , '' these virtues are firmly rooted in the Constitution itself and the core values of Americans . Deliberation is a predominant central virtue promoted by the Constitution . That document requires that in criminal cases , there be an initial appearance , indictment by a grand jury , representation by counsel and the right to not only appeal a conviction but to petition for habeas corpus . All of these slow down the process . Above all , our Constitution expressly mandates `` Due Process , '' even when that process produces delay and uncertainty , as it is bound to do . Deliberation is what makes us civilized , and when it fails , we fail profoundly . A second virtue , mercy , is also an explicit part of the Constitution . The federalists insisted on the inclusion of the pardon power , for example , for the express reason that it gives the system some outlet for this core virtue . ( In Davis ' case , it is the Georgia Board of Pardons and Parole that had the power to grant clemency ) . The first signer of that Constitution was George Washington , who then lived out the virtues of that Constitution as president . He was literally the commander-in-chief ; when the Whiskey Rebellion arose in western Pennsylvania , he personally led the army to quell the rebels , astride a white horse . Just as importantly , living out the constitutional virtue of mercy , he pardoned those rebels who were sentenced to hang for treason . The Troy Davis case shows us a truth : We have wandered too far from our own best virtues . If we are to err , let it be on the side of deliberation and mercy , rather than the unsettling finality we have seen pursued by the state of Georgia . Should we choose those better virtues , we might all sleep better . The opinions expressed in this commentary are solely those of Mark Osler .
Mark Osler : Courts considering Troy Davis case had to balance values . He says the argument to proceed was the virtue of `` finality of judgment '' He says conflicting values relate to due process and the virtue of mercy . Osler : We should err on the side of further deliberation and of mercy .