We Cannot Answer that Question Now – But Enough Doubts Exist That We Should Never Have Executed Him –
The execution of Troy Davis should haunt any reasonable person that is concerned about the possibility of executing an innocent person. This is not a case of Cameron Todd Willingham, where we know for a fact that the forensic evidence used at the time of his execution to determine that it was an arson fire was flawed.
In his final moments, Mr. Davis was described by Greg Bluestein of the AP, one of five witnesses to execution, as lifting his head from the gurney to look directly into the eyes of the family of Mark MacPhail, the police officer who was killed and for whose murder Mr. Davis was convicted.
“I want to talk to the MacPhail family,” he said. “I was not responsible for what happened that night. I did not have a gun. I was not the one who took the life of your father, son, brother.”
He would appeal to his family and friends to keep the faith and told the medical personnel, “May God have mercy on your souls.”
He was then executed.
Wrote the London Guardian: “The debate about what happened in Georgia’s Diagnostic and Classification Prison in Jackson late on Wednesday night will continue long after the gurney has been put away. In the final gruesome hours of waiting, the American judicial system at its very highest echelons was involved – including the US Supreme Court, which issued the decisive final ruling. The decision to press ahead with the death sentence despite serious doubts over Davis’s guilt drew accusations that this was the system at its most grotesque.”
Seven of the nine witnesses at Mr. Davis’ trial, which was held in 1991, have since recanted and claimed that they were coerced to lie by Savannah police. Among them was a man who testified that he had seen the killing and that it was not Mr. Davis but another man, Sylvester Cole, who was the shooter.
Another witness testified that she had heard Mr. Cole confess three times to the killing, and using Mr. Davis as the fall guy.
Wrote Barry Scheck of the Innocence Project: “Despite the seriousness of these allegations and the sheer number of recantations, Georgia courts and state officials have not only been unwilling to stay his execution, but they have even refused to hold a hearing with live, sworn testimony to assess the credibility of the recanting witnesses.”
The question that I ponder in the aftermath is what was the urgency of putting him to death without at least resolving any remaining doubt about his guilt?
Wrote Mr. Scheck: “The recantation of a witness alone does not and should not automatically result in a conviction being vacated — recantation evidence is treated with caution by courts because, after all, the witness is saying he or she once lied under oath, so how can one be so sure they are not just lying again?”
But he added, “Nonetheless, many wrongful convictions have been overturned because a recanting witness, testifying in person and under oath before a judge, is found to be credible and the reason for the recantation – often a claim that the original trial testimony was coerced – is found to be persuasive.”
“But in Georgia the recanting witnesses don’t get to testify because the state’s courts have created an extraordinary Catch-22 rule — the ‘purest fabrication’ doctrine – that arbitrarily denies evidentiary hearings even when extremely persuasive recantation affidavits have been submitted,” he explained.
“The ‘purest fabrication’ doctrine means that post-conviction hearings don’t have to be held to evaluate the credibility of recanting witnesses unless the defendant can show, by extrinsic proof before the hearing is held, that the original testimony was absolutely false,” Mr. Scheck continued.
As Mr. Scheck pointed out, if you throw out the testimony from these witnesses, the remaining evidence is very thin. There is no physical evidence to link him to the crime.
The case once again turned on the testimony of two jailhouse witnesses, both of whom have since recanted, and seven eyewitnesses, five of whom have since recanted.
As Mr. Scheck argues, “The steady drumbeat of DNA exonerations in recent years — 223 people who served more than 2,500 combined years in prison for crimes they didn’t commit — shows that eyewitnesses can get it wrong and jailhouse snitches lie.”
The New Yorker wrote that an execution is not a rare or isolated event, there have been more than thirty executions this year and Mr. Davis was not even the only execution scheduled for that day.
But they write, “But the Davis case has struck a chord because of the number of people – thoughtful people who have spent years engrossed in the details – who have real doubts about his guilt, and can cite the affidavits of witnesses who’ve recanted, or who should have been called, but weren’t.”
On September 20, the NY Times, in an editorial, called it a “grievous wrong.”
They wrote, “The Georgia pardon and parole board’s refusal to grant him clemency is appalling in light of developments after his conviction: reports about police misconduct, the recantation of testimony by a string of eyewitnesses and reports from other witnesses that another person had confessed to the crime.”
It took them twenty years to get to the execution. If you are going to have legalized execution in this country, something that I very much oppose, you at least owe it to the victims and the defendants alike to make sure you got it right before you pull the switch, I mean, don’t you?
There are just too many doubts here, or should have been.
Wrote the Times, “The grievous errors in the Davis case were numerous, and many arose out of eyewitness identification. The Savannah police contaminated the memories of four witnesses by re-enacting the crime with them present so that their individual perceptions were turned into a group one. The police showed some of the witnesses Mr. Davis’s photograph even before the lineup. His lineup picture was set apart by a different background. The lineup was also administered by a police officer involved in the investigation, increasing the potential for influencing the witnesses.”
They add, “In the decades since the Davis trial, science-based research has shown how unreliable and easily manipulated witness identification can be. Studies of the hundreds of felony cases overturned because of DNA evidence have found that misidentifications accounted for between 75 percent and 85 percent of the wrongful convictions. The Davis case offers egregious examples of this kind of error.”
This case highlights exactly the issue of both eyewitness identification and the use of jailhouse informants. There have been huge strides made on both of those fronts this year. California has passed legislation sponsored by Senator Mark Leno to hopefully correct some of the abuses of the reliance on jailhouse informant testimony. At the same time, the New Jersey Supreme Court focused attention on fixing eyewitness identification procedures to prevent the kind of contamination and intimidation that occurred in this case.
“Three jurors who sentenced Davis to the death penalty testified that had they known about the problems with eyewitness identification, they would not have sentenced Davis to death,” the Associated Press reported.
In addition, advocates for changing these rules hope they have reached a turning point where the Davis execution can at least focus the larger populace on the problems of eyewitness identification.
“We expect that this will be a huge issue in 2012,” said Rebecca Brown of the Innocence Project. “Our approach is this: We want uniform implementation of best practices, however that happens.”
Following the execution Mr. Scheck said: “Troy Davis was executed in spite of serious doubt about his guilt. The state clemency system in Georgia and in many other states is not functioning as an effective safety valve in cases where there is serious doubt about guilt. Any objective, fair-minded observer would have to conclude the risk of executing an innocent person in the U.S. is unacceptably high.”
Paul Cates, the director of communications for the Innocence Project added: “Since his original trial, substantial evidence has come to light pointing to Davis’ innocence. The Georgia Bureau of Investigations has conceded that the ballistics evidence used against Davis was unreliable, and one of the jurors who sat on the case said that if she had known about that she would not have voted to give Davis the death penalty. Seven of the nine witnesses who identified him as the shooter have recanted their testimony. One of the two witnesses who maintain that Davis was the shooter is thought by many to be the real perpetrator and has made admissions to others that he committed the crime. The other remaining eyewitness had been up for 24 hours straight at the time he observed the shooting and reported on the night of the crime that he ‘wouldn’t recognize [the shooter] again.’ Yet two years later, this witness identified Troy Davis in an in-court identification that required him to simply identify the only African-American sitting at the defense table.
“Misidentification was a factor in 75 percent of the 273 DNA exonerations. In 38 percent of these mistaken identification cases, multiple eyewitnesses misidentified the same person.”
Unfortunately, despite all of these doubts it is too late.
Perhaps the only people who are convinced of Troy Davis’ guilt are the family of the slain officer McPhail.
The Savannah paper this week reported that the relatives of Mr. McPhail are ready to move on and heal.
“It’s a sad day. There’s nothing to rejoice,” Joan MacPhail-Harris, the widow of Mark MacPhail, told The Associated Press by phone Wednesday night after leaving the state prison in Jackson that houses Georgia’s death row. “It’s over and now it’s a time for healing for all families. We’re thankful we don’t have to come back.”
“I can’t believe that it’s really happened,” Anneliese MacPhail, his mother, said. “All the feelings of relief and peace I’ve been waiting for all these years, they will come later. I certainly do want some peace.”
“The slain officer’s mother remained convinced of Davis’ guilt but said she wasn’t surprised he maintained his innocence to the end,” the paper reported.
“I can imagine that,” she said. “He’s been telling himself that for 22 years. You know how it is. He can talk himself into anything.”
Many believe that such an execution will bring no closure to the family. Maybe at some point they will pause for a second and this will bother them. It would certainly bother me if there were nagging doubts about someone’s guilt.
Wrote the Christian Science Monitor this week, “But while the Davis execution may not be a game-changer for the death penalty, it did become part of a growing conversation – more across kitchen tables than legislative chambers – about the courts’ ability to ensure that innocent people aren’t killed or die in prison.”
The Monitor quotes Michael Radelet, a sociology professor at the University of Colorado, who studies the death penalty.
“Death penalty attitudes don’t change suddenly,” he said. “What’s more important is monitoring how arguments or discussions about the death penalty change, and what Troy Davis has done is make people, whether pro or con, acknowledge that people are executed despite doubts about guilt.”
The Washington Post today writes, “The execution has given new life to the debate over the death penalty, with notable figures like former President Jimmy Carter using Davis’ s case as an example of the policy’s faults.”
They note, “Georgia’s execution of Troy Davis for the murder of an off-duty police officer has done little to resolve the debate over his guilt that captured the attention of thousands worldwide, including a former president and the pope.”
Former President Jimmy Carter, himself a fellow Georgian, said: “If one of our fellow citizens can be executed with so much doubt surrounding his guilt, then the death penalty system in our country is unjust and outdated.”
—David M. Greenwald reporting
Racism is at an all time high in this country. Bless Troy’s Brave and Fearless Soul. I am Troy Davis!
[quote]Did We Execute a [b] Convicted Felon [/b] in Troy Davis?[/quote]
A poster on another blog wrote: “The problem lies for the supporters and attorneys of Davis due to their effort to “create doubt” about whether Troy Davis was innocent or guilty instead of providing irrefutable proof that he was innocent. When you look at the decisions rendered thus far in the 42-year-old man’s search for freedom, courts kept saying the burden of proof of innocence was missing.”
Hmmm…
To me, the fundamental question if you are willing to have a death penalty at all is what the standard should be. This is not merely a matter of reasonable doubt that has crept in, these are fundamental questions about the premise by which we ended the life of someone at the hands of the state. Are you arguing that you believe unequivocally that he committed this crime?
“Did We Execute a Convicted Felon in Troy Davis?”
Would he have been convicted based on the state of the record and evidence that exists today? If the answer is no, then you have to at least not execute the guy.
[quote]Racism is at an all time high in this country.[/quote]
Seven of the 12 jurors in the initial case were black. Totally racist.
http://www.washingtonpost.com/blogs/post-partisan/post/troy-davis-guilty-as-charged/2011/03/04/gIQAh23BoK_blog.html
Worth a read if you want an alternative opinion. Sorry, I don’t know how to link to the article.
There was another execution the same day in Texas that drew 100 protestors
[url]http://www.nytimes.com/aponline/2011/09/21/us/AP-US-Texas-Execution-Dragging-Death.html?_r=1&hp[/url]
Why no concern about whether that one was a false conviction?
It is one thing to question whether the death penalty was fairly applied (the equation, death of cop = death penalty should be questioned)… “innocence” goes to whether he should have been convicted and incarcerated at all. It is no more ‘just’ to have an innocent person incarcerated with a sentence of life imprisonment without parole, than it is to have them executed. Just my opinion.
True hpierce. The only difference is that you can exonerate someone who is in prison, you can’t when they are executed.
J.R.: [i]Why no concern about whether that one was a false conviction?[/i]
Because he confessed. Why do you ask?
[quote]It is no more ‘just’ to have an innocent person incarcerated with a sentence of life imprisonment without parole, than it is to have them executed.[/quote]
Hawkeye: I would respectfully disagree here. If we have learned anything from the innocence project it is that eyewitness testimony is often unreliable and coercion from the police is quite common. A corolary to this is that even a jury conviction by peers may not be enough to ensure that innocent people do not routine become executed/sentenced.
I have no idea if Mr. Davis is innocent or not but there appears to enough reasonable doubt to at least commute his sentence. I do not oppose the death penalty in principle for heinous crimes (including cop killing) but it is very apparent that our justice system does not do a good job sentencing people to death.
correction: corollary
This guy was guilty and deserved to die for what he did.
Which guy Rusty? Davis? Based on what evidence?
JR
“Why no concern about whether that one was a false conviction?”
Because he was white.
Don Shor
“Because he confessed. Why do you ask?”
How do you know it wasn’t a forced confession? It’s so easy to create doubt years after the crime and trial. The people that do that are good at their jobs.
That being said that guy in Texas that killed James Byrd deserved to die too.
Rusty:
I think your point actually illustrates the strength of the argument in the Davis case. While it is true death penalty opponents may oppose, as i do, the dp in all cases. It is also true that generally speaking they save their efforts for the more questionable cases. You ask why no one made a big deal out of one, probably because there was not much doubt that the guy did it. I have no doubt for instance that Topete killed Deputy Diaz, I have a huge amount of doubt that Troy Davis killed the police officer in his case. How do we know? We evaluate the case against him and determine how strong it is.
@ Dr Wu…. my comment was on the general concept of innocence vs. either capital punishment or LWP. You “disagree with me” re: the concept of the reliability of eyewitness reliability &/or the ‘facts’ of the case… I rendered no opinion on either. I did not say that Davis was rightfully executed. I did not say he was not. You have little or no idea of what my opinion of the death penalty concept is. Please read my words, then feel free to agree or disagree. You have made a good argument for questioning the reliability of ‘eye-witnesses’ by your interpretation of why you disagree with what I wrote. I suspect (but do not know) that your response was based on your opinions, using my words as a “foil”. You’d probably make a good “I-witness”
There needs to be a different degree for convicting someone in a death penalty situation. The death penalty should be considered only when there is no doubt. If there is some doubt, one could always elect for life without parole.
Personally I am not in favor of the death penalty at all, but this option might be a better scenario than what is out there right now.
[quote]It is no more ‘just’ to have an innocent person incarcerated with a sentence of life imprisonment without parole, than it is to have them executed.[/quote]
pierce
So are you saying you now disagree with your statement above? I quoted you verbatim. I still disagree with what you said. It was not a comment on you or you overall philosophy but a disagreement with this statement.
“It is no more just to have an Innocent person incarcerated with a sentence of life imprisonment without parole, than it is to have them executed.”
While this statement may be true in the most literal sense of justice, it misses two critical points. First, if the person is still alive, there . still remains the possibility of constructive use of their life even behind bars. Secondly, there is always the possibility that if they are truly innocent, this may at some point, be provable, making the reversibility of the sentence critical.
“It’s over and now is a time for healing of all families.”
I doubt that this will be true for the family members of Mr. Davis, and think it points out the revenge factor at it’s most personal and self centered. Does a family member of Mr.MacPhaill honestly believe that this will bring peace to the family of Mr. Davis ? Or does she not include their feelings in the “all families”. I cannot help but wonder how she would feel if it were her son or brother who she believed had been unjustly executed. Family beliefs, on either side, should never be a factor in deciding the fate of an accused or convict.
“Does a family member of Mr.MacPhaill honestly believe that this will bring peace to the family of Mr. Davis ?”
Medwoman, would you be so compassionate if that were your son or daughter that was killed by Troy Davis? Would you honestly be worried about how peace would be brought to the Davis family. It’s easy to sit back and judge when it’s someone else’s child/family member that was shot in the stomach and face while trying to save a homeless man.
Rusty49
I have had a family member murdered and remain adamantly opposed to the death penalty. And yes, I do have compassion for the family of the convicted, just as I have compassion for the family of the victim.
Rusty:
Your point suffers from multiple errors.
First, you assume that all family members of murder victims support capital punishment. That is simply untrue. There is a range of views that families of murder victims hold.
Second, you presume that Mr. Davis killed MacPhail. At this point, what evidence is that that he did? Don’t tell me that a jury convicted him, because a lot has changed since the trial and three jurors said based on the evidence that has emerge since their verdict, there is no way they would have convicted.
I suspect if it were my family, I would not be supporting capital punishment. I would rather have the guy have to spend the rest of his life in prison And second, I would want to know who really killed my loved one and would not be satisfied with this outcome. In fact, I would be outraged.
Here’s a different prospective, not David’s filtered one:
http://host.madison.com/ct/news/opinion/column/article_b0e3cb0b-d6a5-5e28-91e4-74c58cfadd8a.html
“Seven of the nine witnesses at Mr. Davis’ trial, which was held in 1991, have since recanted and claimed that they were coerced to lie by Savannah police.”
Excuse me, there were 34 witnesses:
“the state presented 34 witnesses against Davis — not nine — which should give you some idea of how punctilious the media are about their facts in death penalty cases.
Among the witnesses who did not recant a word of their testimony against Davis were three members of the Air Force, who saw the shooting from their van in the Burger King drive-in lane. The airman who saw events clearly enough to positively identify Davis as the shooter explained on cross-examination, “You don’t forget someone that stands over and shoots someone.”
A bloody pair of shorts was found in Troy Davis’s mother’s house which couldn’t be used for evidence because they were taken by the police without a search warrant.
“earlier that same day, Davis had shot and injured a man named Michael Cooper in a completely separate incident. According to Judge Moore, Mr Cooper described his assailant as “a young, tall, African-American male wearing a white batman shirt, a black hat, and shorts”, a description that fitted Davis to a t.”
MacPhail’s killer was also wearing a white Batman t-shirt, black hat and shorts and the shell casings matched Davis’s earlier convicted for crime.
There’s much more………
False convictions are certainly a fundamental problem in any justice system. They will never be completely eliminated, The penalty for prosecutors or witnesses who fake evidence should be extremely severe.
While false convictions probably occur very rarely in death penalty cases, they are quite common in other areas. For example, 25% or more of rape accusations are believed to be false.
See [url] http://heartiste.wordpress.com/2011/09/22/the-anti-false-rape-accusation-campaign/%5B/url%5D
That’s [url]http://www.foxnews.com/story/0,2933,194032,00.html[/url]
AdRemmer “Did We Execute a Convicted Felon in Troy Davis?”
Believe it or not, a person can be a convicted felon and still be innocent. It happens all the time. Convicting a person of a crime is not about guilt or innocence, it’s about winning and losing for the DA’s office. They rarely care about innocence, which is why they will prosecute people even when there is very little evidence.
I am aware that there are holes in the prosecutor’s case and that post-conviction a large number of witnesses against Troy Davis recanted their testimony.
What I don’t know if if there is any exculpatory evidence which has come to light since his conviction? Or put another way, is there compelling evidence that specifically someone else was the killer?
Until I hear otherwise–from blog posters here or in other readings–I will assume that, even if proof of Davis’s guilt was dubious, his innocence remains even more in doubt.
Let me get a little philosophical here: I strongly support the death penalty. It is a just punishment for taking someone else’s life, when that taking was illegal and malicious in intent.
I wish we could execute those sentenced to die within 4 or 5 years. I wish the appeals process would start right away and conclude in a reasonable amount of time.
However, I think we ought to add a step we don’t have in murder cases: post-conviction, we should have an outside, independent party fully examine the case. That is, have a qualified lawyer-investigator team question all of the physical evidence and examine the testimonial evidence, including evidence which was not admitted at trial, in order to determine if the person tried was truly guilty or if the evidence suggests otherwise.
What we have now is an appeals process which is designed to simply question what went on at trial, what decisions the judge made, and if the convict was treated fairly based on precedent, statutory law, and the Constitution. I am not against any of that. But it misses the point if the evidence was in some way tainted or if the jury was simply incompetent and made the wrong decision.
As I say, I want executions to be swift. The main reason they are not swift now is because our appeals process is constipated. Seven years ago, for example, Scott Peterson was convicted of murdering his pregant wife on Christmas Eve of 2002, dumping her and his unborn child in the San Francisco Bay near Richmond. He is sitting on death row. He will be there for at least another 30 years. No one has yet looked at his appeal. It won’t come up for another decade. And then it will take 20 years to make a final determination. For most of the next 30 yars, nothing at all will be done about his case. Nothing.
My suggestion is within a week of a death-penalty conviction, the appeals process needs to start. I would give it up to two years to decide if the judge’s decisions based on precedent, statute and the Constitution were reasonable. At the same time, I would start the re-investigation process. After two years of re-investigating, the lawyer-investigator should be able to declare in a complete report what he did to check evidence and if he found fault with any evidence. If he found none after two years, then the defense should have the right over the next two years to try to provide any new evidence to suggest their client was not guilty. If then, after four years, with the appeals process done and the re-investigation done and no clear faults were found, the execution (by firing squad) should be done.
This would cost less than our present systme. And it would be fairer to the convict.
Rich:
What I have been able to gather is that there was sufficient reason to question the basis of the conviction based on the recanting of the judge. It appears that the judge who reviewed the case placed a high standard of evidence – looking for evidence of innocence – and concluded that there was not sufficient exculpatory evidence to demand a retrial. On the other hand, it appears that had the case been retried there is no way they would have convicted him based on the state of the evidence. I’m just not comfortable with that.
Judge William T. Moore Jr., decided that in order to overturn the original jury verdict, Davis needed not only to cast doubt on the evidence against him, but to provide “clear and compelling” proof of his innocence. In an August 2010 ruling dismissing Davis’ appeal, he declared that while the state’s case “may not be ironclad,” Davis failed to make a showing of “actual innocence” and thus should not be granted a new trial. The evidentiary hearing was the first such legal proceeding in more than 50 years.
“A federal court simply cannot interpose itself and set aside a jury verdict in this case absent a truly persuasive showing of innocence,” Moore wrote. “To act contrarily would wreak complete havoc on the criminal justice system.”
As you know I’m against thee death penalty in all case, but if we are going to have it, I think the standard should be higher than a criminal conviction and should be no doubt. Otherwise keep the guy in prison for life until there is reason to overturn a verdict.