Troy Davis

>> Friday, September 23, 2011

The other day, when Troy Davis was still alive, a friend at the D.A.'s office asked me what I thought of the case; it was sort of apropos of nothing, just small talk unrelated to the juvenile case we were actually going over at the time. Anyway, I had to admit it was a subject I'd sort of been avoiding. I'd been getting some e-mails from Amnesty International about it, and was aware of some controversy, but I hadn't looked into it and didn't feel very well informed; then, I'd read a few more things about it this week and agreed it didn't look like a strong state case with the witness recantations, accusations of coerced testimony, and lack of physical evidence, but then all that's a part of a lot of capital cases (it would be irresponsible speculation if I said most, but I have my suspicions)... and even with those weaknesses, I was reluctant to say very much.

And I still am, I have to admit.

Let me tell you a dark, dirty, inside-baseball secret about our legal system: the problems in the Troy Davis case aren't unusual issues in any sort of case. Witnesses are bullied into making statements more often than you probably think, and it's not merely allowed, but expected: however much it may stink to the heavens, there is nothing illegal about an officer threatening to charge a witness if he doesn't say anything, and if anything, it's considered routine policework. A lack of physical evidence at an outdoor, public crime scene, exposed to the elements and the comings-and-goings of first responders and gawkers (and frequented by gods-know-who before the event) is exactly what you'd expect if you gave it any thought at all. Unforced errors in witness testimony and identification, without any deliberate prompting or coercion, are not only consistent with contemporary research in psychology and neurology, but are what you would probably have predicted had someone asked you a question along the lines of, "What kind of performance would you expect from eyes and a brain evolved in a mostly diurnal, plains-dwelling, social primate tasked with recognizing rapidly occurring events in a parking lot under streetlamps, from a distance?" Oh, and of course racism remains an endemic problem in the courts, not just in the South, but across the United States; it's a live, stripped wire and there's no way to reasonably deny the reality, however much we may pine for a better future.

These issues come up in cases where someone is completely innocent and they come up in cases where somebody is guilty as the devil himself. Was Troy Davis an innocent man? A jury said he wasn't. From what you might call a social or cultural perspective--the point of view that says we're a civilization of laws and that the determinations of our institutions are to be accorded some kind of respect or at least acknowledgment lest we're reduced to braining each other with the animal bones we've adapted as crude murder tools for stealing food and sex--from that point of view, Troy Davis had due process under the laws and was convicted, the convictions upheld, the law followed to its bitter end. Whether the determinations of our hallowed social institutions resembled whatever actually happened in a Georgia Burger King parking lot on August 19th, 1989... does it ever?

I'm going through all this because a lot of thoughtful people are wrong about something. There are a lot of people who are talking about the execution of Troy Davis as a question of whether or not the state of Georgia killed an innocent man. (See, e.g. this Dahlia Lithwick piece at Slate, or this Steve Kornacki entry at Salon.) And if you want to speak in legal terms, the answer is "no, the state killed a man adjudicated guilty by a jury of his peers", and if you want to speak in factual terms, the answer is "who the hell knows?". Prosecutors and the family of Mark MacPhail, the off-duty cop Davis was convicted of shooting and killing, will always be able to fall back on the first of those, and people who think Davis was wrongly convicted will never be able to do better than the latter. You know what? "Maybe" is weak sauce. "Maybe" is even weaker juice than "he had his day in court and he lost", because however weak and callous "he had his day in court" may come off, it's the best any of us will ever get (and we could do a lot worse--the jury trial, for all its faults, is still a better system than trial by combat or ordeal). And anyway, isn't the rebuttal to "maybe" built right into the argument itself: maybe the jury that tried Troy Davis got it wrong... and maybe it didn't.

I think I've been pretty clear how I feel about capital punishment. It's barbaric and cruel, a relic of bygone ages when we were too stupid and bloody-minded to even attempt to treat the worst offenders against civilization with an iota of rationality or compassion. "An eye for an eye" is primitive, crude, it's the credo of bronze age shepherds who had to be told what not to eat.

The possibility of innocence is sort-of a reason to get rid of the death penalty, sure. But it's the suckiest sort-of reason, because the implication is that maybe Troy Davis deserved to die. You can sit there and say, "He shouldn't have been killed because we'll never know," but what if you did know? If you did know, would it be all right, then? What about the guy in the next cell? If you know about the guy in the next cell but you don't know about Troy Davis, is that a sufficient distinction? And you can answer that in the affirmative, you know: you can say, "Yes, if I knew for sure that Troy Davis was guilty, it would be alright to kill him, and the next guy, and every other guy, if we knew for sure." I have a problem with that. My problem is that the reason it wasn't right to kill Troy Davis was because he was a human being and we can do better than barbarism.

I am pragmatic and opportunistic, and I have probably acquiesced or even promoted the doubt argument if I thought it was more persuasive than the moral argument to a particular audience. Well, I'm a heel, and don't you forget it. But this seems to me the wrong argument at the wrong time right now. A lot of my fellow death penalty opponents are trying to climb on board this one because it's more-obviously a shitty case for the state than some of them. I think that's a bad call and bound to backfire.

Troy Davis didn't deserve to die because nobody does, or all of us do, and either way nobody ought to be trusted with the making these distinctions.




POSTSCRIPT: After writing this, I found Salon's Alex Pareene covered much of the same turf and rather well. This is worth a quick read if you have the time; I think I agree with everything he says.




16 comments:

Phiala Friday, September 23, 2011 at 6:43:00 AM EDT  

It's an example of the way monkey brains work.

"The death penalty is bad" is abstract, and hard for us to stay attached to as a concept.

"This particular person might be innocent" is specific, and very (too) easy for monkey brains to latch onto.

As you say, it doesn't help.

And then there's this, which is stupid political grandstanding, but removes a romantic element from the whole process, making it more prosaic. Which could be good, if it helps people see the death penalty for the utterly unromantic abhorrent obsolete practice that it is.

The historical information at wikipedia is interesting, though it smacks of just-so-story, but the list of last meals is perversely fascinating.

Leanright,  Friday, September 23, 2011 at 10:51:00 AM EDT  

I've mentioned to you before that I'm not a full-fledged conservative when it comes to the death penalty. Short of the members of a jury witnessing first hand, there is always an element of doubt.

Genocide would be an exception. The likes of Hitler, Edi Amin, Stalin, Pol Pot, Saddam Hussein, and Osama bin Laden, etc.. Anyone with a loyal following whose cronies are still willing to kill for their "cause", needs to be executed to save more lives.

The Troy Davis case certainly does not fit this. Not even close. Perhaps he was guilty, based upon the jury conviction, but he should be given the opportunity to appeal that conviction. I know YOU'RE not a religious man Eric, but I hope Troy Davis found God in his final days, and left this earth in peace. We're better than that. Or, are we?

Anonymous,  Friday, September 23, 2011 at 11:37:00 AM EDT  

"My problem is that the reason it wasn't right to kill Troy Davis was because he was a human being and we can do better than barbarism."

I feel the same way. I also feel that, even if we accept that some people deserve to die, the fact is that the system that determines who those people are, like the people who created said system, is and will forever be imperfect. So, even to someone who believes in the righteousness of the death penalty, the death penalty is useless.

Inigo Montoya,  Friday, September 23, 2011 at 12:36:00 PM EDT  

Someone asked me what I thought of the Troy Davis case. OK, nobody asked me, but I'll tell you anyway.

I don't know squat about the case, I'm just opposed to the death penalty and I'll tell you why.

Early on in the Bible, God gives Moses these ten laws carved into stone tablets., and Moses had to carry them down the mountain. Pretty much by himself- you think God would have given him a papyrus roll, much easier to carry.

Anyway one of these laws said “Thou shalt not kill”. A simple declaration, no waffling like “a well-regulated militia being necessary blah blah blah.” Just “Thou shalt not kill”.

Now I'm not a Bible scholar (I think I may even be agnostic), but I think my education has covered the high points. I know God did a lot of smiting in the Old Testament, smiting enemies of the Israelites, smiting sinners, and just random smiting because He could. But the point is, God was doing the smiting.

Now the Bible was written by men, not by God, though some say it was divinely inspired. But I'm pretty sure men snuck some stuff in there when God wasn't looking. For example, outside of the Forbidden Fruit I'm pretty sure God doesn't care what you eat, or when, but those Old Testament guys when on a bit about that.

And I'm pretty sure at some point some guy decided to cut out the middle man and smite his own enemies under the guise of “God told me to”. Now that would directly contradict the commandment, wouldn't it? So I'm not buying it. But man went on happily smiting his fellow man.

So much for the Old Testament. Now we come to the New Testament, and there's Jesus saying stuff like “turn the other cheek”. I don't think Jesus ever smote a fly. Oh, he could get angry, like when he threw the moneychangers out of the temple, but no smiting! He could have smitten the Romans to hell and back but he let them smite him instead, just to prove how nasty a business this smiting could be.

Now, the New Testament was written by men too, and despite Jesus's teachings, they couldn't let go of their need to smite, so someone was always coming up with a rationale for why smiting was OK despite Jesus. They even made a saint of one guy named Augustine who came up with the idea that there could be a “just war”.

But that's not God's teaching. God said “Thou shalt not kill”.

Men will say “That's not the way the real world works!”

And God says “How do you know? You're not living in it yet.”

Kevin Friday, September 23, 2011 at 2:41:00 PM EDT  

Great essay. The discourse about the death penalty reminds me of the discourse vegetarianism. There are, imho, an abundance of arguably sufficient reasons why a person might choose to be vegatarian. The reason I choose to be a vegetarian is the moral reason, which of all reasons is both the most obvious and least discussed. Why? Because stating the belief that a widespread activity of others is immoral has a tendency to make some people defensive and everybody uncomfortable. But if you talk about reasons and evade the moral issue it just isn't persuasive.

Ultimately I oppose the death penalty for the same reason that I eat vegetarian. I believe that intentional killing is wrong, intentionally killing a being who has been rendered defenseless is especially wrong, and that avoidable suffering is an inevitable byproduct of this activity.

FTR, I am not arguing that eating meat and capital punishment are moral equivalents--I leave that as an exercise for the reader.

Kevin Friday, September 23, 2011 at 3:00:00 PM EDT  

@Leanright

As an attorney who did a 2-year stint at an office representing death row inmates in the old Confederacy, there is not always an element of doubt. Quite a few death row inmates were essentially caught red handed and/or offered confessions in circumstances that do not give rise to doubts about factual innocence. If it seems otherwise, it is probably because of selection bias in the stories which receive national attention. I differ with Eric in speculating that probably less than half of death row cases have a serious (i.e., non-frivolous) factual innocence issue.

Being for or against the death penalty means having to decide how you feel about the cases where factual innocence is not at issue. Otherwise, you're just debating how liberal or conservative we ought to be in applying the death penalty.

To be sure, you can argue against capital punishment on the grounds that even when factual innocence is not at issue, the administration of the death penalty is so arbitary and capricious, or racially compromised, that it should not be engaged in. This argument would work equally well, however, as a rationale for expanding the death penalty--which is I think how most conservatives hear it.

Anonymous,  Friday, September 23, 2011 at 3:37:00 PM EDT  

I honestly believe this man was not guilty, dont ask me why, i cannot explain, he protested his innocence to the death, I think some where down the line, DNA, will prove this man was telling the truth, and we will find he has been excuted for nothing,

Eric Friday, September 23, 2011 at 4:25:00 PM EDT  

Anon @3:37: some of us would say he was executed for nothing even if Davis was factually guilty. His death didn't restore Mark MacPhail to life. If you consider any of the usual purposes for the penal system, rehabilitation obviously doesn't apply and deterrence seems improbable. There's the possibility that it somehow made MacPhail's family feel better, which seems like a pathetic reason to kill anybody. And then there's incapacitation/neutralization--something that is as readily accomplished by life imprisonment (and more cheaply and with fewer complications).

Sadly, while you may well be right that Davis was factually innocent, the odds that there would be any kind of hard physical evidence of this are practically nil. From what I've heard, the MacPhail murder occurred at a crime scene where DNA would be unlikely to be preserved and found. Worse yet, it's a crime scene where there would be a perfectly innocent explanation if Davis' DNA was found in the vicinity, and plenty of questions as to why and how it was showing up now, decades after the original investigation. Along those same lines, if a third-party's DNA showed up (e.g. that of the state witness who is himself a possible suspect in the case), it wouldn't be all that exculpatory for Davis under the circumstances: the crime occurred in a Burger King parking lot, presumably trafficked by many people--besides which, we already know the witness/suspect was present, he told the police that that's where he saw Davis kill MacPhail.

I hope that this doesn't sound like a critical or hectoring response, Anon.: your comment reflects kindness and hope, and I hope that doesn't sound patronizing to say so.

The universe is not kind enough to offer us the solace of certainties.

Kevin Friday, September 23, 2011 at 4:56:00 PM EDT  

Not to bogart the comments, but here's a quote from my blog post which I think is pertinent:

One thing I learned from my days as a public defender (and my usual response to the "how can you represent guilty people?" question) is that when something goes down, you never know what really happened unless you were there. If you were there, you still may not know. For me, what "really happened" never made much difference in how I approached the case (okay--I own up to getting squicked by sex offenses against children). The intermittent possibility of factual innocence was just another petal on the strange special flower that was each case. All of my clients had one thing in common--they were in trouble.

Janiece Friday, September 23, 2011 at 8:09:00 PM EDT  

While my attitude about the death penalry.co.tinues to evolve, I'm currently at a place where I think a case might be made that someone "deserves" to die. But I can't see making a case that the state has the right to carry that out.

Seth Saturday, September 24, 2011 at 1:01:00 AM EDT  

I don't have a problem with the death penalty in the abstract. I don't see the right to life as sacred or unalterable, and unlike Eric, I can see some pretty good reasons for killing people who do evil. I think, as Durkheim suggested, that the main function of punishment is probably not really rehabilitation or deterrence, but "to maintain inviolate the cohesion of society by sustaining the common consciousness in all its vigor." I.e., punishment is a social ritual that confirms that we as a society condemn certain acts. I think capital punishment is consistent with that aim.

And... I don't know... there's a sort of balance to it that feels right to me. A moral scheme that says, "If you take the life of another, your right to life is forfeit" just doesn't really feel like "barbarism" to me, in the abstract.

For me, the evil is in the application. I'm skeptical that judges, lawyers, and juries -- human beings -- are capable of getting to the truth of things and administering justice in even a dimly evenhanded way. I think it's just fundamental to our nature that we make poor inferences, use faulty heuristics, are swayed by our hopes and fears, to such a degree that I'm not even sure we should really be entrusted to decide whether to imprison one another, let alone kill one another.

I guess what I'm saying is, if we had perfect knowledge -- if we could know the circumstances surrounding every capital crime with absolute and irrefutable clarity -- taking the life of a murderer wouldn't bother me. But as long as decisions about capital punishment hinge on the jury's racism or provincialism, the judge's electoral concerns, the prosecutor's desire for a conviction, the cop's lazy and unchallenged assumptions, and the witness's need to do the state a good turn for his own benefit, I don't see how we can hope to render this ultimate and irreversible punishment in a way that isn't arbitrary and grossly unfair.

All of which is long-winded way to say I think the Troy Davis case is important, because it goes a long way to showing that even cases that seem like slam-dunks -- nine witnesses! -- often turn out to be rotten and corrupt when examined more closely. And that argument, ultimately, is going to be more convincing to more people than just crying out "It's immoral!" -- which isn't really an argument, or at least I certainly don't accept it as one when conservatives say it about sex outside of marriage.

Eric Saturday, September 24, 2011 at 2:10:00 AM EDT  

Seth, you raise some interesting points, including a purpose of punishment that I hadn't really addressed. Obviously, however, I don't find that argument persuasive in terms of the proportionality of capital punishment; i.e. I think society can show its condemnation of an act without resorting to a killing.

But the main thing I'd point out is that I'm not saying the Davis case is unimportant. I am saying it isn't special in the sense that the problems some folks are harping on are, unfortunately, typical. Every business day there are drug cases and larcenies and robberies and burglaries coming to court that are just as problematic evidence-wise, and hardly anybody says anything because nobody gets killed at the end of it, though plenty of people become unemployable, lose citizenship rights, give up months and years of their lives, etc. And I am saying that those who are getting bogged down in the question of Davis' factual innocence aren't, in my view, focused on the right problem.

Okay, here's another illustration of the problem with some people's focus: there were people saying that because of the doubts in Davis' case, his sentence should have been commuted, because holding somebody you believe is probably innocent in prison for the remainder of his life and forgetting about him when the news cycle moseys along is apparently okay, or at least better than killing him. I find that hard to countenance.

This is the point where I repeat something I alluded to and that Alex Pareene covers pretty well, and it may be the most important point in this: contrary to what some people may think, the system worked when it put Troy Davis to death. The police investigated, the state indicted, a jury heard the case, a sentence was passed, appellate courts reviewed the case for errors of law. That's how our system works. Davis had his day in court. He was legally adjudicated guilty beyond a reasonable doubt and sentenced in accord with the law. True, there are questions about his factual, as opposed to his legal guilt, but as a matter of law, Troy Davis killed a man.

Did witnesses recant and claim their testimony was coerced? Yes. Does that mean they weren't telling the truth at trial? Well, actually, no: it means that one of the statements each witness made is inconsistent with a subsequent statement, but it's logically possible (however unlikely) that the recantations were false; this is part of the reason appellate courts generally review questions of law and ignore questions of fact, because the law's view is that a jury viewing the examination and cross-examination of a witness is in a better position to evaluate that witness' credibility first-hand, as opposed to an appellate court looking at pieces of paper in the appellate record.

If that seems obscene, well, I guess it's obscene. But that particular problem, the potential gap between factual guilt and legal guilt, is obscene whether you're strapping a man to a gurney or eradicating his future job prospects by putting a misdemeanor crime of moral turpitude on his permanent record. Frankly, people who say that Davis shouldn't have been executed because of doubt can't, in my opinion, offer a particularly cogent or moral reason for locking him away for life in the alternative; if you're not sure he did it, you have reasonable doubt, something the trial jury didn't have after they sat in a courtroom watching the witnesses get grilled by attorneys from both sides.

(cont.)

Eric Saturday, September 24, 2011 at 2:11:00 AM EDT  

(cont.)

A last minor point is this, Seth: I don't know that doubt is a more convincing argument than morality or vice-versa. You mention the religious conservatives who aren't persuasive when talking about the morals of sex outside marriage, but those folks are also the people for whom "doubt" is a four-letter word (partly because many of them have difficulty counting--sorry, it was an easy, cheap shot), the sort of people Janiece heard describing a wrongful execution in terms of making an omelet without breaking eggs, the people who cheered Rick Perry's death toll, the people who think it takes balls to kill an innocent man. Also, this: secular liberals should not cede moral arguments to the religious right (nor should religious liberals, but I wanted to emphasize the secular left); liberalism is a moral philosophy and an ethical framework for how society should function and people should be treated, and while it may (by its nature) have more room for disagreement than conservatism, that should never preclude a liberal from making and defending a moral argument. (N.b. if the moral argument seems incomplete or weak in this post, it's only because I feel I've made it elsewhere on this blog; furthermore, I'd contend that if I haven't been convincing in the past, it is the fault of the proponent, yours truly, and not of the proposition itself.)

Sylph,  Saturday, September 24, 2011 at 5:18:00 AM EDT  

Interesting points, Eric. For me, the finality of the death penalty, and the doubts involved were always top on the list against it. But you can't take the out of calling the death penalty "barbaric," while apparently taking someone's life in drips and drabs over 60 years behind bars isn't. What gives society the right to lock someone up for the rest of their natural life, but not to end it? There are many people who would find the prospect of a grey 60 years behind bars worse than death (me, for one).

Nathan Saturday, September 24, 2011 at 11:03:00 AM EDT  

Apologies in advance since I'm probably not addressing your central point...

Over the last few weeks, we've been watching The Tudors on Netflix which includes some fairly graphic depictions of burning at the stake, submersion in boiling oil (with the convict offered the choice of "head or feet first"), and disemboweling while still alive and then drawn and quartered. A willing admission of guilt (which saved the inquisitors from the trouble of torture) would garner a "merciful" punishment -- the convict would be honorably beheaded (horribly botched in one instance).

So, the concept of cruel and unusual punishment has been much on my mind. I hesitate to fall back on Wiki, but I'm lazy.

A little history, since I wasn't really aware of this; the Eighth Amendment is almost identical to a provision of English Common Law enacted in 1691 -- not inspired by a death sentence. Then, it seems to take until 1878 for the . U.S. Supreme Court to specifically rule that certain types of execution are "cruel and unusual" It takes until 1958 for the Court to address "evolving standards of decency".

This is my long winded way of getting around to my actual point. As we've just witnessed in the Davis case, it's not particularly unusual to watch last minute machinations to get a case reviewed by the Supreme Court or commuted by a State Governor. If I'm not mistaken, Davis was executed within a half hour of the announcement that the Court wouldn't hear his case.

I realize that the system from the Defense's point of view is designed to allow every opportunity to prevail and the State is eager to carry out an execution as soon as all appeals have been exhausted -- lest the Defense come up with another delaying tactic.

I wonder if a system which gives the condemned reasonable hope for a reprieve up to the last minute -- only to find that hope dashed -- won't someday be viewed as cruel and unusual in our "evolving standards"? It might be argued that not giving the condemned an opportunity to really, really, really resign himself to his fate is a form of mental torture.

I'm not necessarily advocating that position but it seems to me it's a question worth pondering.

Seth Sunday, September 25, 2011 at 12:02:00 PM EDT  

Eric, I think traditionally people who draw a line between the death penalty and life in prison would argue that there is a relevant difference in terms of doubt and exculpatory evidence -- namely, that the former is permanent and irreversible, whereas the latter can be at least partly set aside if the defendant can come up with factual evidence of his innocence after the trial. Maybe that wouldn't have made a difference for Troy Davis -- I don't know enough about the appellate system to say -- but one can certainly imagine a system that does allow a man who's been sentenced to life in prison to later prove his innocence.

I think there's also a moral case to be made that hinges on the problem of certainty. Presumably, leaving aside things like torture, the death penalty is the most severe form of moral condemnation we can impose on a person. We're saying, as a society, "You're so wicked you deserve to die." I think that's a pretty terrible thing to say to someone, and it makes the death uniquely awful. (Or, anyway, the death chamber gives me the willies in a way that other forms of death don't.) And I think, given the uncertainties and weaknesses inherent our system of judgment, maybe we just shouldn't have that ultimate form of condemnation available to us.

But I don't want to argue too much. Ultimately we're arriving at the same place here -- this is not a power we want the state to have.

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