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September 21, 2011 11:25 AM Reasonable doubt

By Steve Benen

In about seven hours, Georgia will kill Troy Davis. Whatever one’s feelings about capital punishment, the fact that the state will apparently execute an innocent man is a profound American tragedy.

The story is probably familiar by now. In 1989, a late-night scuffle broke out in a Burger King parking lot in Savannah. When Mark MacPhail, an off-duty police officer, tried to intervene, someone pulled a gun and killed him. Soon after, Sylvester “Red” Coles went to the police with a lawyer, accusing Troy Davis of the shooting.

Some witnesses said it was Coles, not Davis, who killed MacPhail, but once the man-hunt began, law enforcement officials wanted to believe Davis was the man responsible for the slaying, and pressured witnesses accordingly. At this point, most of the witnesses who testified at trial have signed statements contradicting their identification of the gunman. Other witnesses who fingered Davis have said they made their stories up, facing police threats.

What we’re left with is a case in which a man was sentenced to death despite no physical evidence, based on the word of witnesses who have since recanted or contradicted their testimony.

Yesterday, the Georgia State Board of Pardons and Parole denied Davis’s late, and probably last, request clemency. The New York Times editorial board called the panel’s rejection “appalling.”

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. […]

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. […]

Seven of nine witnesses against Mr. Davis recanted after trial. Six said the police threatened them if they did not identify Mr. Davis. The man who first told the police that Mr. Davis was the shooter later confessed to the crime. There are other reasons to doubt Mr. Davis’s guilt: There was no physical evidence linking him to the crime introduced at trial, and new ballistics evidence broke the link between him and a previous shooting that provided the motive for his conviction.

Guilty beyond a reasonable doubt? I don’t think so.

Steve Benen is a contributing writer to the Washington Monthly, joining the publication in August, 2008 as chief blogger for the Washington Monthly blog, Political Animal.

Comments

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  • Dredd on September 21, 2011 11:29 AM:

    Some aspects of our system of justice, at home and abroad, are guilty beyond a reasonable doubt.

  • Morbo on September 21, 2011 11:31 AM:

    From a WaPo column today: "According to a recent Gallup poll, about 64 percent of Americans support capital punishment, and about one-third say that killing innocent people is a 'natural cost of an important punishment.'"
    That's easy to say when it's not your son or daughter on death row.

  • stormskies on September 21, 2011 11:33 AM:

    It was just announced that Rick Perry will be administering the lethal injection ..........

  • steve duncan on September 21, 2011 11:35 AM:

    WTF is so surprising about any of this? The accused is black, right?

  • c u n d gulag on September 21, 2011 11:36 AM:

    Here's our "justice" system:

    If you're white, we may take a look at it in another light.
    But if you're black, well, there's no going back.

    Well, they couldn’t get to Angela back in the day, so I guess another Davis will have to pay.

    And the execution will, I’m sure, be marked by loud “HUZZAH’S!”, and erect penises and nipples from the usual “I’m Pro-Life” supporters.

    Also, too – this is good for John McCain!
    Wait, no… scratch that…
    This is good for Governor Perry!!!

  • TCinLA on September 21, 2011 11:41 AM:

    Georgia will kill Troy Davis.

    Isn't it traditional for ignorant Southern rednecks to be out killin' innocent black men??

  • fuzed on September 21, 2011 11:43 AM:

    Bloodthirsty America, will it be bread or Circuses?
    I think we know the answer.

  • stevio on September 21, 2011 11:46 AM:

    His impending execution will be cheered by far right voters as proof of a liberal free press, and the need for Obama to be a one term POTUS because , as we all know, they are all for the right to life.

    If we aren't already there, 3rd World status can't be too far off.

    Time to purchase some brown clothing...

  • Equal Opportunity Cynic on September 21, 2011 11:46 AM:

    Bloodlust must be satisfied! If we're going to show criminals we mean business, there's gotta be a little bit of collateral damage, right?

    I had planned the above reply to be slightly hyperbolic before reading that Milloy piece on the WP's site. Surely, i thought, Americans couldn't possibly consciously be OK with our bloodlust consuming innocent lives. Sometimes i give our populace too much credit.

  • Trollop on September 21, 2011 11:51 AM:

    Yea, poor economic conditions, an innocent man facing execution, I'm so fucking proud to be an American I'm going to listen to that fucking Lee Greenwood steaming turd of a song all day long!

    Too bad there is not a concerned public outrage in Georgia; maybe there is in the black community?

  • Peter C on September 21, 2011 11:51 AM:

    CLEMENCY????? Why isn't Troy Davis being given ANOTHER TRIAL? Isn't that his right as a citizen when new evidence (recanted testimony, confessions, improper police procedures, tainted evidence) come to light? Is that no longer a cornerstone of our justice system????

  • Montana on September 21, 2011 11:52 AM:

    We live in a very sick society in which the state can kill a man -- any man -- with impunity while the populace cheers.

  • Chris on September 21, 2011 11:53 AM:

    As a Georgian, I'm embarrassed to report that the decision of the Georgia State Board of Pardons and Parole reflects the will of most Georgia voters. The level of blood-lust in this state is off the charts, and Troy Davis is one in a series of innocents executed over decades. He's somebody else, and he's somebody else's loved one...so fuck it. If we want to have capital punishment, and we do, then executing an innocent person from time to time is a small price to pay.

  • Korben on September 21, 2011 12:01 PM:

    Remember the government can do nothing right except when it comes to delivering capital punishment in which case it is inerrant.

  • Werewolf on September 21, 2011 12:02 PM:

    Georgia has a proud tradition of condemning innocents (at least if they're not white Christians) going back at least 100 years. In 1911, a Jew named Leo Frank was convicted of the rape and murder of a young girl in Atlanta, despite the fact that there were no witnesses and no evidence linking him to the crime. Fearing clemency from the governor, a mob dragged Frank from the jailhouse and lynched him. Said mob was led by a judge and a preacher. For months afterward, Jews all over Georgia were terrorized by the KKK. The event led to the founding of the Anti-Defamation League. As a postscript, the real killer confessed years later, but to this day, the State of Georgia refuses to exonerate Leo Frank.
    In short, while I am appalled at the Davis case, I am not at all surprised.

  • Ed on September 21, 2011 12:04 PM:

    I'm afraid I have to agree with Chis on this one. As a native Georgian this state is filled with savages. Now not all of them are indigenous to the state. Many, particularly in the northern suburbs are from the North and West and are just as savage as the original rural stock that settled here originally.

    There was a time when I thought we would get modernized but I think it's another lost cause.

  • SadOldVet on September 21, 2011 12:06 PM:

    In the words of Antonio Scalia in another death penalty case: "This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court the he is 'actually' innocent." Justice Clarence Thomas joined Scalia in the court minority.

    But then again...

    Saint Thomas Aquinas wrote "the presence of injustice should provoke a righteous anger, which if absent constitutes a sinful insensibility".

    Or then...

    As Billie Holliday sang "Strange fruit hanging from the southern trees..."

    Damn good thing Georgia is full of white Christians who support lynching n!ggers. Helps with the population control.

    What a fucked up country we live in...

  • Anonymous on September 21, 2011 12:08 PM:

    Morbo: "about one-third say that killing innocent people is a 'natural cost of an important punishment.'"

    Better not be the same one-third who also say that appeals & clemency are how the system makes sure innocents are not executed.

    If someone must die because Mark MacPhail was murdered, who will have to die if Troy Davis is murdered?

  • square1 on September 21, 2011 12:13 PM:

    Troy Davis is guilty.

    If you want to lament his execution because you are anti-death penalty, go right ahead. I am generally anti-death penalty myself.

    But Troy Davis is guilty.

    It is worth noting that this is not a case where the guilty party could be anyone. It is undisputed that Troy Davis was present at the scene of the killing. There is a 0.0% chance that the killer was anyone other than Davis or Coles, another black man. Numerous witnesses identified Davis as the shooter. He was convicted on that basis.

    Last year, a U.S. District Court Judge, William Moore, was tasked with reviewing the facts surrounding the purported recantations. Following a hearing and in a 172-page decision, Judge Moore concluded that Davis had failed to show that he was innocent.

    Before people reflexively repeat the claim that numerous witnesses have recanted, I would suggest that they actually READ THE ORDER, which not only concludes that Davis was not innocent, but lays out in extensive detail exactly what statements were made by witnesses, both initially to the police and at trial, as well as the nature of the purported recantations.

    One fact that was particularly convincing to the Court -- and to me -- was that, at the hearing, Davis' lawyers chose not to call certain witnesses who were purportedly recanting their trial testimony even though the witnesses were at the courthouse sitting in the hall available for testimony. If there is anything that is going to convince a judge that a purported recantation in an affidavit is bogus, it is refusal to allow cross-examination of the witness. That screams to the Court that the defense attorneys do not believe that the witness will testify consistently with the affidavit.

    Do I remain skeptical that a black man can receive justice in Georgia courts? Yes. But in this case, there is no reason to believe that the cops concocted a case to frame Davis...in order to save Coles, another black man. If the cops had thought Coles was the shooter, they would have charged him with the murder.

    Again, death penalty bad. Troy Davis guilty.

  • DisgustedWithItAll on September 21, 2011 12:13 PM:

    How do some people live with themselves?

    Nothing can be said or written that can do justice to this injustice. Words just fail.

    The most sobering thought for me is that I think a good portion of this country is on board with this.

  • DavidNOE on September 21, 2011 12:18 PM:

    It's pretty simple, really. It doesn't matter to most conservatives whether the person executed (or, in non-capital cases, convicted and imprisoned) for a crime is guilty or not. The important thing is that if there's a crime, someone has to be punished for it. (Preferably a minority of some kind.) As the French say, "Pour encourager les autre."

  • June on September 21, 2011 12:18 PM:

    @square1, it is not encumbent upon the defense to prove that the accused is innocent, it is their task to produce a reasonable doubt - am I wrong?

    But at least it's interesting to know that you and Rick Perry will be sleeping well tonight.

  • DavidNOE on September 21, 2011 12:21 PM:

    "les autres." Typo, not ignorance of French.

  • martin on September 21, 2011 12:27 PM:

    square1: Whether he's guilty or not I'm not in a position to judge. But given the number of recantations and accusations of police treatment of witnesses, I'm willing to bet he did not get a fair trial.

    Of course, with our current Supreme Court, a fair trail is no more a deterrent to the death penalty is than innocence, so Davis is going to die.

    Captcha has gone of the rails again: L1-M1-M4,ibuterl. the numbers are supposed to be subscript, we'll see if this works.

  • DJ on September 21, 2011 12:35 PM:

    @square1, it is not encumbent upon the defense to prove that the accused is innocent, it is their task to produce a reasonable doubt - am I wrong?

    The defense need not produce anything -- at the initial trial. It is the prosecution's job to produce evidence sufficient to prove guilt beyond a reasonable doubt, and to persuade the jury that the evidence is sufficient beyond a reasonable doubt to convict.

    But that is all at the initial trial. If convicted, the burden of proof switches to the convicted, to show that the initial trial was in error. Perhaps that is what square1 was referring to by criticizing the defense's failure to produce certain affiants for live testimony, on the theory that their live testimony would undermine the affidavits.

  • SYSPROG on September 21, 2011 12:38 PM:

    Hey Square1...STOP REWRITING THE LAW. If you want to believe Troy Davis is guilty based on the order, so be it. However, in THIS country, a man is 'innocent until proven guilty'...not the other way around. Some states have decided that THEY are the arbiter of the law but they are not. If you don't stand for the law, what DO you stand for? Some talking point about 'the rule of law' that doesn't mean crap? This is another case of holding a cross in one hand and the flag in another and thinking you actually stand for SOMETHING.

  • DAY on September 21, 2011 12:46 PM:

    I suspect that Troy Davis is viewed by many as a surrogate for another black man. . .

  • June on September 21, 2011 12:55 PM:

    @DJ, thanks for your post.

  • anniecat45 on September 21, 2011 1:43 PM:

    To Sysprog -- to repeat was DJ said:

    "innocent until proven guilty" is the standard at the initial trial. In post-trial proceedings, the burden is on the appellant or petitioner to prove that the trial verdict was wrong.

    Now I'm going to go read that 172-page order so I can at least pretend to know what I'm talking about.

  • square1 on September 21, 2011 1:57 PM:

    Troy Davis got a trial. The prosecution proved beyond a reasonable doubt that he was guilty.

    Afterwards, Mr. Davis appealed. Among the bases of his appeals was that he was actually innocent (not merely not proven guilty) and that it would be a violation of his Constitutional Rights to be executed for a crime that he did not commit.

    Our legal system requires a certain measure of finality. If we gave a convicted criminal a new trial every time he could convince a witness for the prosecution to change his testimony in some way, legal proceedings would never end.

    Thus, on a habeas appeal, where the defendant is claiming actual innocence, the burden must be on the defendant to show that a trial produced an unjust result. There is -- and should be -- a preference for crediting testimony made under oath, in court, before a judge and jury, over a written statement made years later and not subject to cross-examination. Witnesses have an obligation to TELL THE TRUTH at trial. They may not merely sign an affidavit years later saying "I'm not sure anymore" and get the defendant out of prison.

    But at least it's interesting to know that you and Rick Perry will be sleeping well tonight.

    Go fuck yourself, June. Once again, you display your incapacity to disagree with people without making gratuitous personal attacks.

    I picked up on this story from an email that I received from Amnesty International. I looked into it because I am a lawyer and I happen to take an interest in cases involving innocent people on death row.

    I was fully expecting that I would discover, as in other high-profile cases, that there was clear misconduct by the police or D.A. and that Davis had been framed on little to no evidence.

    In fact, what I discovered is that the evidence pointed overwhelmingly to Davis' guilt. That the so-called recantations were highly suspect. And that no fair-minded person could possibly overturn the conviction.

    Others are free to review the evidence and come to a different result. And by evidence, I mean look at the actual trial testimony and compare it to the so-called recantations. Don't simply regurgitate talking points about how many witnesses supposedly changed their tune.

    In fact, if someone who is actually familiar with the case wants to make a coherent argument that Coles was the shooter, I am all ears. I would love to hear such an argument. Maybe, I will be convinced.

    But I happen to think that Davis is guilty. And I see no reason why people need be uncivil and suggest that I approach this issue as Rick Perry would or that I am "rewriting the law" merely because I think that Davis is guilty.

  • Grumpy on September 21, 2011 1:59 PM:

    martin: "Captcha has gone of the rails again: L1-M1-M4,ibuterl. the numbers are supposed to be subscript, we'll see if this works."

    If you get a Captcha you don't like, request a new challenge.

  • Cornhusker on September 21, 2011 2:42 PM:

    The GA governor's office pointed out that he is one of 3 governors who don't control clemency.

    Based on the information at the following web sites... Each member on the GA Board of Pardons and Appeals was appointed by Republican Governor Perdue
    http://www.pap.state.ga.us/opencms/opencms/
    http://en.wikipedia.org/wiki/List_of_Governors_of_Georgia

  • DW on September 21, 2011 2:57 PM:

    Whether or not Davis killed the cop is a bullsh!t argument. Lets not forget that before this murder occurred Mr. Davis shot a man in the face at a party with the same bullets used to kill the cop. Why do u shoot someone in the face?.....to kill them. Fortunately mr. Cooper, Troy Davis's first victim, survived the murder attempt. Then Mr. Davis beat a homeless man outside a convenience store. This very beating is what drew attention from the off duty cop who was then shot (in the face just like mr. Cooper) and killed. Does it really matter if Davis or his buddy pulled the trigger. Troy Davis had already attempted to kill someone earlier then beat a homeless man. Why all the outcry for this man. He is a violent piece of ahit who deserves to die whether he killes the cop or not. His actions and his gun are what lead to the murder. Good riddens Troy Davis. ENJOY HELL!!!!!!!!!!!!

  • yellowdog on September 21, 2011 9:06 PM:

    @square1

    "Our legal system requires a certain measure of finality."

    The issue here is that there is more "finality" to the death penalty than any human process can reasonably sustain. The state gives "finality" to those on death row--but the criminal justice system is hardly error-proof. What do we do when we find the state has executed an innocent person?

    I don't know if that list includes Davis. Many of the people who have called for clemency for Davis, including Jimmy Carter, say they do not necessarily believe Davis is innocent of the crime but there is enough doubt about his guilt that executing him could be a major miscarriage of justice. Carter has said life incarceration of Davis may be in order but execution is not. A clemency process involves some discretion - not about guilt or innocence but about appropriate sentencing.

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