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September 20, 2011

Troy Davis denied clemency ... now what if you think he might be is innocent?

As a few folks have already noted in comments to a prior post and as this lengthy Atlanta Journal-Constitution article reports, this morning the Georgia Board of Pardons and Paroles declined to commute the death sentence of Troy Anthony Davis.  A couple quick thoughts and questions to set up a discussion here (and perhaps also in class):

1.  I was wrong in my prediction that the Georgia Board would grant clemency (and I have already proudly admitted this at my SL&P blog in this post).  Not that you needed proof that I can be wrong, but I hope you all realize that I am never ashamed to be wrong and I often then become eager to figure out why.

2.  Troy Davis got every layer of traditional appellate review of his original death sentence as well as (many) additional ones.  Should this fact make us more comfortable with his pending execution or more concerned about the value of lots and lots of review of death sentences?

3.  What should persons who are genuinely concerned that the Georgia might execute an innocent person tomorrow do now?  What if those persons work for the US President or Georgia's governor?

4.  Is the Davis case getting so much attention only because of innocence issues?  How much of a role do you think race and geography is playing here?  If all the offense facts were the same, but the state about to execute Davis was Ohio and Davis was white, do you think the case gets as much attention?  More?

I have lots of coverage of both the history and current doings in the Davis case in this posts from my SL&P blog:

UPDATE:  The official statement from the Georgia Board of Pardons and Paroles is short and available at this link. Here is the text in full:

Monday September 19, 2011, the State Board of Pardons and Paroles met to consider a clemency request from attorneys representing condemned inmate Troy Anthony Davis. After considering the request, the Board has voted to deny clemency.

Troy Anthony Davis was convicted in 1991 of the murder of 27-year old Savannah Police Officer Mark MacPhail. On August 19, 1989, MacPhail was working in an off-duty capacity as a security officer at the Greyhound Bus Terminal which was connected to the Burger King restaurant located at 601 W. Oglethorpe Avenue.  At approximately 1 a.m., on that date, Officer MacPhail went to the Burger King parking lot to assist a beating victim where MacPhail encountered Davis.  Davis shot Officer MacPhail and continued shooting at him as he lay on the ground, killing MacPhail. Davis surrendered on August 23, 1989.

Davis is scheduled to die by lethal injection September 21, 2011, at 7 p.m., at the Georgia Diagnostic and Classification Prison in Jackson, Georgia.

September 20, 2011 in Current Affairs, Race and gender issues, Who decides | Permalink


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I personally feel more comfortable knowing that after so much appellate review, his conviction was upheld. However, the monetary and temporal strains on the court system caused by the myriad levels of review is disconcerting. Perhaps the actual trial in a capital case could be altered to allow for a more thorough, comprehensive review of evidence presented, and maybe even allowing for exceptions to the rules of evidence or procedure (though this would be both difficult to effectuate, and probably not that popular).

Posted by: Heather W | Sep 20, 2011 12:05:51 PM

"4. Is the Davis case getting so much attention only because of innocence issues? How much of a role do you think race and georgraphy is playing here? If all the offense facts were the same, but the state about to execute Davis was Ohio and Davis was white, do you think the case gets as much attention? More?"

I think the answer to this is pretty obvious - the answer is that it would receive much, much less. Generally, the world focuses on the South's bloodthirsty attitude, and even moreso focuses when the South projects that attitude onto someone black. Not that there is anything wrong with that: modern history bears out that the South has not been kind to the black man. Now, the true irony is the North (most notoriously Boston, but parts of NYC, and Philly) are not kind to the black man either, but Lincoln cast the South in a bad light and the South has not helped themselves in that regard.

"Troy Davis got every layer of traditional appellate review of his original death sentence as well as (many) additional ones. Should this fact make us more comfortable with his pending execution or more concerned about the value of lots and lots of review of death sentences?"

It SHOULD make us more comfortable, but the fact that it does not is not convincing to me that we need more layers (a la the [IMHO foolish] "bill" "adopted" last class). If the Government has thrown millions and millions of dollars, and added layer upon layer of process, all just to make sure we are killing the right person, and yet no one feels better about it (or, at least, a large swath of the literati don't), then what the hell is the point of wasting all this time and money? It would have been "better" (from a societal-comfort standpoint) to have just taken Davis out back after the trial and shot him. We would not have had 15 years of hand-wringing and collective guilt, because Davis would have just been another statistic.

One final note to this overly long post: I am overly skeptical when the usual suspects (HRW, NAACPDF, Amensty Int'l, the whole lefty coterie) come out of the woodwork in support of a certain death row inmate. It is pretty obvious (to me) that Mumia Abu-Jamal it guilty as hell, and yet I had to endure years of communists on campus insist on setting free a murderer. So my patience may be a little thin when it comes to police-killing convicts, even though I think Davis's case is a lot different.

Posted by: Steven Druckenmiller | Sep 20, 2011 12:08:28 PM

One truly final addendum: A fact that never seems to make into news reports, "the jury, composed of seven blacks and five whites, took under two hours to find Davis guilty on one count of murder and the other offenses." (via Wikipedia) This is the same jury that sentenced Davis to death. It is interesting to me that the cultural zeitgeist assumes that a buncha good ol' boys down in Georgia decided they were going to kill themselves a black guy when there were seven black jurors. Savannah (for those who have not been) is sleepy, but is far from a cultural backwater: it has (IIRC) the oldest synagogue in America and the population is 57% black. Savannah's "squares" are world-famous and the events of "Midnight in the Garden of Good and Evil" took place in Savannah.

Posted by: Steven Druckenmiller | Sep 20, 2011 12:17:31 PM

Steve, I'm going to disagree with you on the Southern bias issue. I think that race plays a role in the way the media plays up a case like this, but it isn't the only or even the major reason.

There is similar fanfare whenever a woman is executed. See http://www.washingtonpost.com/wp-dyn/content/article/2010/09/23/AR2010092306866.html

I'd argue that that fanfare has everything to do with the fact that such cases are unusual. Davis' case is unusual because there are legitimate concerns about his innocence given all of the recanted testimony.

As for your comments about the South, I'm sure some people see it the way you characterize, but I don't think that's the issue. The issue is that certain states execute more people than others. Texas has notoriety not because it executes more blacks, but because it just executes a lot of people relative to most of the country. It has to do with perceptions about the way the South does justice at least as much as it has to do with the way the South treats blacks. I think the fact that people perceive the South as a death-happy part of the country has just as much or more to do with the issue than Davis' race.

Posted by: Colin P | Sep 20, 2011 12:58:45 PM

On the SL&P blog a commenter posted an excerpt from the Dist. Ct. opinion that helped me with sorting out this case.


Because 7 of 9 witnesses recanted their testimony, in class I voted that there was less than a 50 percent chance that he was guilty. However, that link states that many of the recantations of testimony were questionable and for the one that was legitimate, everyone believed at trial that same witness was lying, too.

But the standard was difficult for me to accept: "The burden was on Mr. Davis to prove, by clear and convincing evidence, that no reasonable juror would have convicted him in light of the new evidence." Also, that the new evidence "casts some additional, minimal doubt on his conviction" was not enough to overturn.

I would prefer a standard that asks not would no person would convict him, but that in a group of 12, one person (or whatever the state requires) would decline to convict him. And I would also prefer an explanation from the court of how "minimal doubt" compares to "beyond a reasonable doubt." This might show that I prefer a system in which any doubt should be enough to refrain from executing someone.

I also want to respond to Steven's skepticism about the "usual suspects" who "come out of the woodwork" for an inmate. I actually have the opposite reaction, and feel that if an organization uses its scarce resources to support a particular inmate, then it must have at least a decent amount of information in support of the inmate's case.

Posted by: Maureen F | Sep 20, 2011 5:29:12 PM

2. If justice is not served, no amount of layers should make any of us comfortable. However, it begs the question of whether adding extra layers would have changed the outcome or if having more layers (or even as many layers as we currently have) merely prolongs executing a clearly guilty person. However, since we cannot refuse appellate review to only those who we believe are 100% guilty, I suppose a large amount of appellate review for every convict is the only way that we can sleep at night by blaming those in charge of the multi-stage process for not catching a potential error.

3. People who are genuinely concerned that the state of Georgia might execute an innocent person tomorrow cannot do much legally. All legal avenues have been exhausted for Davis at this point short of President Obama asking for a federal investigation into a potential federal issue. Employees of the president could rally to do the latter, but I doubt President Obama will intervene.

4. I strongly disagree with Steven Druckenmiller's post. The media feeds off of these types of cases. We have a man who is already deemed to be categorically unequal because of his race in comparison to the race and status of his alleged victim. The makeup of the jury does not negate the black on white crime alleged here. Combine that with the geographical location, below the Mason-Dixon line, in conjunction with the innocence at issue, and we have ourselves a story!

In my opinion, race victimology plays a huge role here in the media frenzy. Therefore, moving the location to Ohio would still have made this case major news. Also, the victim was a police officer, which makes it extremely controversial in any state. However, I do not think a white man killing a white police officer or a black man killing a black police officer would have received nearly as much attention as was given to the Davis case.

Posted by: Crystal M | Sep 20, 2011 7:51:12 PM

Like some others, I feel more comfortable knowing that Davis brought his case through so many layers of appellate review. That courts often find error along the appellate path is helpful - the Davis result does not necessarily cause me to lose faith in those layers. I's possible that Davis incorrectly defined his innocence.

As we've discussed, no one really knows whether Davis is guilty, or how guilty he is - which renders difficult a call on what punishment is correct. I tend toward a camp that says, "if you're a guilty 7 (on a 1-10 scale), say you're a 7 and accept the punishment for that amount. Where Davis might be a 7, but he's been convicted as a 10, he should not say he's a 0 and try for a sentence reflecting some middle level of guilt. By doing so he loses credibility in a space that already doubts him (one aspect of the credibility issue is tied to the answer to no. 4 - I tend to agree with Crystal). Wouldn't naysayers (on both ends) have less to say if Davis had argued, yes, he was guilty, but not to the extent the prosecution said? I'm relatively comfortable with the layers - but having a process doesn't ensure it will be used as effectively as possible.

Posted by: Jennifer H. | Sep 20, 2011 11:00:25 PM

While there may have been layers and layers of appellate review, I think it is also important to note procedural restrictions and burdens imposed on the Defendant during the process. I guess my point with AEDPA and perhaps Stone is that everything is frontloaded. All the protection lies during the state trial level. If your trial counsel fails to record certain objections or pursue certain lines of arguments then you are SOL in the appellate process. Even if your claim may have some merit it is effectively procedurally barred. And this applies to the majority of habeas claim where there is no claim of innocence per se but a sputtering of due process claims. Someone who may not entirely be innocent but can claim that there is some deficient assistance of counsel (but not rising to ineffective), some argument of jury misconduct, and maybe even some argument of prosecutorial misconduct clearly deserves a second shot but he can't defeat a harmless error review so his claim falls on the wayside.

I guess my point really is that just because someone have had layers and layers of appellate review does not necessarily mean that he has had due process.

Posted by: Marco | Sep 20, 2011 11:54:23 PM

I think that these circumstances present a fascinating case about whether or not the people United States actually believe in their own criminal justice system at all. Troy Davis has had layer after layer after layer of review of his case, and has not been able to establish not just the extreme claim that he is actually innocent, but even the fact that he does not deserve to be executed because of possible questions of his innocence. It seems to me that we as Americans, if we are comfortable at all with our criminal justice system, should be extremely comfortable with the fact that Mr. Davis will be executed tonight.

This man was found guilty beyond a reasonable doubt by a jury of his peers and then sentenced to death. More than 20 years later, after numerous appeals and hearings have been conducted, Troy Davis will be executed tonight. If the American public cannot be comfortable with this outcome, how can it be comfortable with the sentence of a decade in a federal prison for a person convicted of a crime who was probably appointed a public defender who may have slept through parts of his trial and then proceeded pro se in a single appeal which was probably summarily denied?

I realize that the issue of life and death arouse strong emotions because what is done can never be undone. However, does allowing someone to sit in prison and waste valuable years of their lives when there is even more doubt to their guilt than there is to Mr. Davis' seem fair? I think that we should feel much more comfortable about executing Mr. Davis than we do about many other convictions and prison sentences that we give to people each and every day.

Having said all of that, I am torn as to my own comfortability with Troy Davis' execution, and I think a big part of that is due to the media's influence on my own thoughts. The media has framed this situation as one in which the state of Georgia is going to execute an innocent person tonight, and looking at it through that scope, I am very uncomfortable with the situation. However, there has to be some faith put into those members of the jury who sat through the trial and unanimously convicted Mr. Davis of the crime, and those who listened to appeals and sat through innocence and clemency hearings and decided that Mr. Davis should be executed. I think that in my own personal view, I trust the process.

Posted by: Sean B. | Sep 21, 2011 9:56:45 AM

I'm curious, what are the legal impediments to requiring a different burden of proof for all capital offenses?

e.g.: O.R.C. 2900.00 Capital Aggravated Murder
Anyone proved "beyond all doubt" to have purposely caused a death shall be eligible for the punishment of death.

Posted by: JT | Sep 21, 2011 2:38:31 PM

I find it strange when members of the victim’s family say things like “I want to have some peace.” This is actually an exact quote from Officer MacPhail’s mother. I find it ironic primarily because I think she’s not really looking for peace—she’s looking for revenge. Understandably, she’s gone through a lot, especially with so many trials over the past several years. However, I believe the death penalty, in general, is a revenge mechanism disguised as a form of “justice.” That somehow the killing of another human being by lethal injection makes the world a better place because the murderer now “got what they deserve.” I thought the days of an eye for an eye and a tooth for tooth were long gone, but obviously I’m wrong.

Besides my personal opinions, other heavy hitters like former President Jimmy Carter, Pope Benedict XVI, former GA Supreme Court Chief Justice Norman Fletcher, and former FBI Director William Sessions all believe that Troy Davis should not be executed as well. If there was ever a political suicide in GA, I would think this case stacks high amongst the rest.

If you’re interested, here’s a video from YouTube with Troy Davis’s sister describing the events that took place the night of the murder taken from the crime scene. There’s also a quick interview with Davis’s pastor, a juror from the trial court, and even Officer MacPhail’s wife who seems to believe Davis is not guilty.


Posted by: Isabella | Sep 21, 2011 5:47:05 PM

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