Death Penalty, Troy Davis, and Legal Process

The case of Troy Davis has become somewhat a cause celeb for anti death penalty activists and people interested in justice generally. Troy Davis is sentenced to death for the murder of Police Officer Mark Allen MacPhail. He maintains his innocence. There was no physical evidence against him and the weapon used in the crime was never found. The case against him was built upon witness testimony. While he has been on death row all but two of the state's non-police witnesses from the trial have recanted or contradicted their testimony. Many of these witnesses have stated in sworn affidavits that they were pressured or coerced by police into testifying or signing statements against Troy Davis. One of the remaining witnesses is Sylvester "Red" Coles who also happens to be the principle alternative suspect. There is new evidence implicating him as the gunman. Nine individuals have signed affidavits implicating Sylvester Coles.

The U.S. Supreme Court declined to hear Davis' appeal ending the appeals process available in the courts. There is a very distressing picture that an innocent man is going to be executed. If the case against him is so weak and undermined after all these years why is he going to be executed? The answer seems to come from a utilitarian, process argument, policy. This is what has been advanced by the prosecutor in the case .

Mr. Lawton makes several arguments to refute the idea that Mr. Davis is innocent and that he deserves no further review. Among them he asserts that there was physical evidence that linked Davis to the shooting; shell casings that matched an earlier shooting Davis was also convicted of, the shooting of one michael cooper. Reading the record,

At trial, Kevin McQueen, who was at the Chatham City jail with Davis, testified that Davis told him there had been a party in Cloverdale on the night prior to the victim’s murder; Davis had argued with some boys and there was an exchange of gunfire. (T. 1230-1231). Davis told McQueen he did some of the shooting. (T. 1231). After the party, Davis went to a girlfriend’s house and intended to eat breakfast at Burger King. Davis stated that he was with a friend and they ran into a guy who “owed money to buy dope.” (T. 1231). There was a fight, Officer McPhail appeared, and Davis shot him in the face. As Officer McPhail attempted to get up, Davis shot him again, because he was afraid McPhail had seen him that night at Cloverdale. (T. 1232). Davis also told McQueen that he was on his way out of town to Atlanta. (T. 1232).

This was undermined by the recantation of Kevin McQueen,

“The truth is that Troy never confessed to me or talked to me about the shooting of the police officer. I made up the confession from information I had heard on T.V. and from other inmates about the crimes. Troy did not tell me any of this… I have now realized what I did to Troy so I have decided to tell the truth… I need to set the record straight.”

Mr Lawton also attacks the recantations themselves.

Would it not be ironic, for instance, in a case such as this one, if affidavits claiming coercion by police were themselves obtained by coercive tactics?

He accuses Amnesty International, in their zelous anti-death penalty ways, of coercing the recantations. In a true head spinner the high number and percentage of recantations is not actually an indication that they were originally false or coerced but that they were coerced now.

My favorite view has come from The Debate Link

There's a lot of hand waving going on here, but basically the reliability of the recantations comes down to whether or not you think it is more likely that witnesses are subject to intimidation by police investigators, or by groups like Amnesty International investigating potential wrongful convictions. My default stance is to be suspicious of unrecorded police questioning in Black on White crimes in Georgia. The affadavits Amnesty provides are compelling to me because of their consistency -- they all give very similar accounts of police harassment, and come back to a consistent theme that the police wouldn't let the witnesses leave until they said what the police wanted to hear.

This was a cop killing in georgia. Cop killers do not get off. You can bet that there is behind the scenes pressure from the cops at every turn to keep this man on death row. Is it far fetched to believe that the cops wanted to get someone for killing one of their own and bent the rules to suit? Maybe thats too much tv talking. However i do find Lawton's reliance on due process as a justification for killing davis to be incredibly disconcerting. In putting someone to death process is not enough, it must be more than that.

Lawton blames the media and the anti-death penalty people as either being ignorant of the laws workings or of being ideologically biased so that they cannot be neutral fact finders. I submit that this characterization is simply false. Simply because something is processed through a system does not make the outcome just or legitimate. This is how the courts review a case as Lawton cites,

“Particularly in this death penalty case where a man might soon be executed, we have endeavored to look beyond bare legal principles . . . to the core question of whether a jury presented with Davis's allegedly new testimony would probably find him not guilty or give him a sentence other than death.”

Considering the evidence at trial, favoring it, and considering the post-trial evidence, “We conclude that the trial court did not abuse its discretion in denying Davis' extraordinary motion for a new trial.”

Over throwing the discretion of a lower court is not something a higher court takes lightly. If the court thinks there is a 50+1 chance that Davis comes out the same he fails to get a new trial. So we could have a 49.9% chance the jury comes out with an answer other than death and that is not enough to merit a trial or commutation of the sentence? To me that sounds like killing on a coin flip.

That's where the process arguments come back with the argument that if the standard were lower we would have too many new trials in death penalty cases. Ahem..So? Maybe we should not be killing people with this strong a showing of doubt? Reconcile the idea of beyond a reasonable doubt with the 50+1% requirement to affirm his death. Certainly 40%+ chance that he does not get death is a reasonable doubt.

Thats what makes the death penalty so problematic. We are putting people to death. Death is it and to consign someone to this fate we cannot have these kinds of doubts. The law is ultimately about applying justice. is it just to the family of the officer who gave his life in the line of duty to kill an innocent man in the place of his killer? IMO this is too sketchy a situation to put a man to death.

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Media Takes Its Direction from Legal Process

I think it is often overlooked how interconnected the fields of law and journalism are. Both are, in theory, supposed to be about the search for the truth. In journalism that truth is supposed to be the events and the objective facts that apply in any given situation. In our legal system it is supposed to be about finding the truth as it relates both to equity and matters of fact. Namely what is the just out come of a case as dictated by law and society? Unfortunately the media has become reliant on a false interpretation of how the legal process works to find the truth.

The media commonly discusses the court of public opinion. they have set up our public discourse to reflect this. our current media works in an adversarial fashion with the 4 actors typical of any trial. We have the attorney's for the plaintiff and the defendant represented by the pundits from the two opposing sides. Then you have your judge, the media figure, who directs the case. Lastly we have the viewers at home acting as the jury. What the media likes to term fair and balanced is actually a bastardized version of our adversarial legal process.

The argument that the media advances is that they, like the judge in a legal case are not present to determine matters of fact. Decisions related to matters of fact are the domain of the jury. The judge is supposed to be the neutral arbiter of the case presented. The media tries to emulate this notion of neutrality, the removal of all bias from the process of getting to the truth. We know though that this is a sadly romanticized view of how things work in both the media and in the courts. there is also an important distinction that illustrates why the legal model does not translate well to the media.

The key is the rules of procedure that govern how the process operates. The court system operates along well defined, concrete rules of procedure that establish base requirements of the actors. One of these base requirements is the element of proof. At numerous points in a suit the defense may move to have a directed verdict that forces the judge to make a call on whether the prosecution has met it's burden of production or proof for its case. at this point the judge has to make a call about on the motion. this does not happen in the media. A debate taking place on tv lacks these features of procedure.

Something else that people fail to understand about the courts when translating the model to the media is that the facts of a case are not always the facts as they actually occur. They are rather found facts. Like the classic doll test of brown v board that the supreme court fully misinterpreted. The courts are bound by the facts available in the court room, the media should not be bound in this way. There is no limitation on the facts that the media could bring in. Any discussion should be conducted with a full agreement on the facts as they actually are not as they are assumed to be.

Something else that separates how the adversarial process works in the legal system and how it plays out on tv is that getting caught lying on tv carries little repercussions. getting caught lying in court comes with potential disbarment. It is true that there are lawyers out thee who lack the desired ethics but these people gain a reputation. The other lawyers and the judges and the clerks and the secretaries all know how they operate and they receive treatment and trust commensurate with their reputation. This is clearly not what happens in the media. People like jerome corsi and bill o'reilly and glenn beck and lou dobbs and sean hannity are allowed to go on tv and spew their views without censor. If tv was like the courts these people would be scoffed at and ridiculed by people like tom brokaw or even brian williams instead they are treated as serious opinion makers. what they said would have no merit to anyone.

In addition to this the criminal justice system has a big problem with favoring the big money players. The ability to hire the right lawyer for your case can be the difference between conviction and freedom. Money plays a role because only those with money can really afford to go to trial in many instances. The courts have serious issues when it comes to dealing with the poor and the indigent. The romantic image of a system where everyone gets their day in court is false.

We live in a litigious society and that is not a bad thing. having people take their problems to court rather than settling their problems vigilante style is fine. its even ok that many cases are settled out of court. Our society views courts and the rule of law as a forum for justice. We accord the images and trappings of this system with a certain deference and respect. It is natural to imagine that we could export the model we so admire to other areas of life, like the media. However, taking pieces of the process like the adversarial nature will not always succeed. This is the case with the traditional media.

Public discourse is not a trial. The public square is not a court room. we should not look to a gladiatorial style combat between adversarial pundits as the best method to find truth. There are not two sides to every issue and we should not force create them to satisfy the desire for a trial of the objective truth. If we are dead set on that path the very least we could do was put every tv pundit under oath. At least that way we can throw them in prison when they lie and subvert the debate.

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