The decision of the Georgia Board of Pardons and Parole is expected today, and likely to be the final decision on whether Troy Davis lives or dies. The case has been up and down, back and forth, The argument against execution is that the evidence of Davis’ guilt unraveled since the trial, leaving much in doubt. He may not be guilty.
The problem is that the intense scrutiny, the recantation by purported eyewitnesses, all came after the conviction. At that point, the question of guilt is resolved, and the argument shifts on its axis. No longer are we talking about a presumptively innocent man, but a man proven guilty.
Whether this will really be the final word on Troy Davis is unknown. But this is a case filled with unknown. As Jeff Gamso put it:
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| Troy Davis |
One of the problems with our legal system, any legal system, is that we only see it from the outside. As Jeff says, we weren’t there. We don’t know. Yet, we expect a jury to make an infallible decision, and we impose the fiction that juries can’t be wrong (except when they are) so that we can move on to the next trial. Another problem is that our system, like any system with a thousand moving parts, has many places where it can fail. Whether the system failed for Troy Davis is up to the Georgia Parole Board.On August 19, 1989, a homeless man was being pistol whipped in the Greyhound Station in Savannah, Georgia. Officer Mark MacPhail of the Savannah PD was running to the scene, doing his job.
Serve and Protect.
He never got there. He was shot to death. Troy Davis (that’s him on the right) did or did not shoot MacPhail. I don’t know whether he did it or not. Neither do you. Maybe Troy does. After all these years maybe he doesn’t even know anymore.As I said, I don’t know whether Troy Davis killed Officer MacPhail. I don’t know if he’s ever killed anyone. Neither do you. Neither do the folks in the state of Georgia. You know, the ones who plan to kill him Wednesday.
Radley Balko provides some background into the folks charged with deciding whether the system failed:
Gale Buckner, a former Georgia Bureau of Investigation agent . . . . Robert Keller, the ex-chair of a Georgia prosecutors group . . . James Donald, the former head of the Georgia Department of Corrections, Albert Murray, who led the state’s juvenile justice program, and Terry Barnard, a former Republican state lawmaker.
Doug Berman posts about MacPhail’s family’s view:
Surviving relatives of slain Savannah Police Officer Mark Allen MacPhail, some teary-eyed, stood before cameras after the hearing ended and expressed confidence the board will allow Davis’ execution to go forward. “What a travesty it would be if they don’t uphold the death sentence,” MacPhail’s widow, Joan MacPhail-Harris, said. “Troy is not innocent,” she said. As for claims that Davis was wrongly convicted, “It’s been a lie.”
MacPhail-Harris was flanked by her 23-year-old daughter, Madison MacPhail, and 22-year-old son, Mark MacPhail Jr. The officer’s mother, Anneliese MacPhail, also expressed confidence the board will deny clemency to Davis. “It’s time for justice today,” MacPhail-Harris said. “My family needs justice. He was taken from us too soon, too early.”
Madison MacPhail, unable to hold back tears, said Davis must be executed. “It is the correct form of justice,” she said. “Troy Davis murdered my father, no questions asked.”
There is no uncertainty here. That Mark MacPhail was murdered isn’t in question. That his family remains heartbroken and in need of revenge is similarly clear. Regardless of what one feels about the death penalty, there is no weakness, no questioning, no doubt whatsoever, in their minds that Troy Davis is absolutely, positively guilty of the murder. Claims to the contrary are “a lie.”
There’s something different when the victim of a murder is a cop. There is a groundswell of support by other cops, others who are part of the law enforcement machinery, that demands a perpetrator be found and, once determined, receive the harshest penalty possible. It can be called overly demanding, simplistic, or blind, but someone must pay. The death of a cop is different, and treated differently by all involved, by the media, the courts and the officials charged with post-conviction oversight, for no other reason than the victim was a cop.
Plenty of others, from a juror who originally convicted Davis to “dignitaries” who have come out publicly against this execution, support commutation of Davis’ sentence. What hasn’t happened along the way, and what, given the way the system works, was never a realistic possibility, is that a court reviewing the conviction was willing to say that the Davis didn’t commit the murder.
The weirdness of the defense argument is that it’s predicated upon the failure of proof in retrospect, that proof fails to show Davis is guilty beyond a reasonable doubt. And yet, that’s not the issue before the George Board, but only whether it’s certainty is sufficiently shaken that execution would be wrong.
In a few hours, a decision by the Georgia Board of Pardons and Parole will issue. There is no question that proof of Davis’ guilt in the murder of Mark MacPhail is insufficient to assure that he is a guilty man, as much as this may pain the victim’s family. And thus, I expect the decision to be that Troy Davis will be put to death.
The failure of proof is a failure of the system. The members of the Georgia Board of Pardons and Parole will not decide that the system to which they’ve dedicated their lives is a failure. The sacrifice of one more man to the system must be made. Even if Troy Davis is innocent, he won’t be the first innocent man sacrificed to maintain the image of the best system ever invented.
I hope I’m wrong.
Update: Clemency Denied.
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An excellent post — depressingly, I had just finished reading it when I saw that clemency had been denied (unsurprisingly). And thank you for drawing out the point that what the family — and society — wants is not justice, but revenge. I have long maintained that what we have in this country is not a justice system, but a vengeance system. What is important is that someone is punished — whether the person being punished is, in fact, the guilty party is often a secondary consideration.
The problem with death penalty states is that the politics of capital punishment make it very difficult if not impossible to grant clemency. For proof look no further than the cheers Rick Perry got for being the killer-diller during the Repub debates. I’m guessing it’s easier for a state and its politicians to abolish the death penalty altogether than it is to grant clemency.
Absolutely. Clemency is an admission that the system somehow failed, and if the system fails, then there is no inherent assurance that it worked in all the other cases and the entire belief system that supports the death penalty goes into the toilet.
“There is no question that proof of Davis’ guilt in the murder of Mark MacPhail is insufficient to assure that he is a guilty man, as much as this may pain the victim’s family.”
Are you kidding me? Did you sit in on the trial? Assess the witness’ credibility as did the jury made up of 7 blacks and 5 whites that produced a unanimous verdict? Or is it because 7 of 9 witnesses have now come forward 20 years later to “recant” their testimony? If this is criminal defense blog, then you KNOW that “recantations” in serious criminal cases, particularly death penalty cases, are nearly an everyday occurrence.
No, recantations are not an everyday occurrence. Next.
Get on Westlaw and search “death /3 penalty & recant!” in federal and state case law.
That explains it. When you think backwards, you get the opposite result. (You: Hmmm. What does he mean? I don’t get it)
When you search for cases that include the word recant, you find cases involving witnesses who recant. That doesn’t make recanting common, but merely the product of your search query because (ta da) you specifically seek the word “recant.” Next.
That last full paragraph says it all.