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September 21, 2011

Executions number 1268 and 1269 of the modern US capital era go forward in Texas and Georgia

As detailed in this local article from Texas, just before 7:30pm east coast time "[w]hite supremacist gang member Lawrence Russell Brewer was executed Wednesday evening for the infamous dragging death slaying of James Byrd Jr., a black man from East Texas."

And, as detailed in this local article from Georgia, after a delay of more than three hours while the US Supreme Court considered and then turned down a final request to delay the execution, just after 11pm east coast time "[o]ne the most controversial death penalty cases in the state’s history ended Wednesday night as Georgia executed Troy Anthony Davis, a convicted cop killer who adamantly maintained his innocence."

As the title of this post spotlights, the executions of Lawrence Russell Brewer in Texas and Troy Anthony Davis in Georgia follow 1267 prior executions of convicted murderers over the last 35 years in the modern death penalty era in the United States.  For a variety of reasons, execution number 1269 involving Troy Davis garnered more attention than any other execution in recent memory.  Whether all the attention brought to this sentencing issue has any significant and enduring legacy remains to be seen.  Civil comments on any lessons to be drawn from, or the likely legacy of, today's death penalty events are welcome.

September 21, 2011 at 11:21 PM | Permalink

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Davis had just about everything one could hope for in a clemency application, but it was denied. Tough for the defense bar.

Posted by: John | Sep 22, 2011 12:32:38 AM

In 35 years, there should have been 350,000 executions to end crime by attrition. Instead there were 600,000 murders and 200 million violent crimes causing massive injuries and health care costs, not to mention $trillions in lost real estate value, destruction of millions of kids' educations, and lost productivity, also in the $multi-trillions. The lawyer protects the criminal because the criminal generates massive government employment, and the victim generates nothing and may rot.

I repeat my demand of the lawyers here. Say the V word, and not as in "Victim Impact Statement." That is a lawyer Trojan Horse that will one day generate massive public funding for lawyers to represent and guide victims through the process of making their impact statement. That is not a legitimate utterance of the V word. It is just another rent seeking scheme by the lawyer, made in bad faith. You lawyers cannot utter the V word without choking and needing a rescue squad as you pass out.

Posted by: Supremacy Claus | Sep 22, 2011 12:50:56 AM

According to an insider, the New York Times reported that the clemency vote in Davis' case was 3 against, 2 for. Crazy to kill someone in such a close matter. Life in prison is more than enough.

Posted by: Jim Gormley | Sep 22, 2011 1:27:41 AM

As the world looked on last night in disbelief, the US judiciary has shown the world its darkest and most grotesque reflection, totally devoid of any recognizable conscience, humanity or justice. The Internet age ensured an audience of millions, and the damage to the perception of the US as a decent democratic entity, fit to represent the democratic world in the fight for Universal Human Rights, will surely be be immense. For those of us who fight for the total abolition of the death penalty, our resolve to achieve that end is renewed and strengthened. Troy Davis, tormented and tortured until the end, will never be forgotten, nor let down by a movement more determined than ever to replace legal anarchy and dishonor with civility, honor and Justice.

Posted by: peter | Sep 22, 2011 3:01:10 AM

Jeff Gamso summarizes it better than I could:

[Troy Davis] probably didn't murder Officer Mark MacPhail (though it's at least possible that he did) back in 1989.

When he was tried and sentenced to be murdered, the evidence of his guilt was pretty good. Since then, that evidence has mostly dissolved. There's way more than reasonable doubt now. If the case were tried today, by competent lawyers, he'd be found not guilty.

More, there's now a pretty good case that the actual killer was a guy named Sylvester Coles.

But Troy is dead. Because really, the jury spoke. You can't ask for more than that. I mean, what's the point of a guilty verdict if it can be overturned just because the guy is probably innocent? We have to kill him because . . . . Wait, it'll come to me.

http://gamso-forthedefense.blogspot.com/

Posted by: James | Sep 22, 2011 3:08:44 AM

peter

Davis: "tormented" and "tortured"?
Please enlighten us on what you feel Officer MacPhail went through his last night helping a homeless man who was being beaten.

Posted by: DaveP | Sep 22, 2011 7:02:14 AM

DaveP - no-one denies the crime committed against Officer MacPhail, and even the most ardent anti-death penalty supporter would join with you in condemning it. However, a) further violence as punishment is never necessary and b) it is obviously important to ensure that the right man is convicted. As regards a) Georgia held Troy Davis in secure conditions for 20 years without a problem and b) with the collapse of the eye-witness evidence and/or the credibility of those witnesses highly questionable, plus the evidence of new witnesses, all reason said that sufficient doubt existed to make the original conviction/sentence unsafe. In those circumstances the execution was wrong.
The torment was 20 years on death row and the torture was an additional 4 hours possibly strapped to the gurney not knowing if he was to be executed or not. As onlookers, it was awful enough for us. For Troy and his family it was totally unacceptable.

Posted by: peter | Sep 22, 2011 7:36:06 AM

Peter: Didn't Troy Davis turn himself in?

Posted by: Supremacy Claus | Sep 22, 2011 8:01:14 AM


Once again, I know little about this case, although I understand that several of the witnesses claimed by Davis's attorneys to have recanted their trial testimony were not put forward to testify in support of the affidavits they supposedly signed after the Supreme Court took the extraordinary step of sending this case back to the district court for a hearing. (I also understand that Judge Moore held that several of the other purported recantations weren't recantations at all.)

I am curious whether commenters like James and Peter (a) regard affidavits as evidence tending to prove the truth of what is asserted in the affidavit, even if an evidentiary hearing is held to determine (among other things) whether the matters stated in the affidavits are true and the lawyers who have offered the affidavit as an offer of proof of what the witness would testify at a hearing fail to call the witness to testify even though the witness is available to testify and (b) whether they would regard this as reliable evidence in any setting other than a death-penalty case in which the affidavit purports to support the proposition that the defendant is innocent or otherwise shouldn't be executed. If the answer is that they think the rules should be different in capital cases because of the different and irrevocable nature of capital punishment, I could understand, even if I wouldn't agree. (What I couldn't believe is anyone accepting as a general matter that papers put forward by lawyers purporting to prove something should be accepted as true even when the people who are supposedly the sources of that factual information refuse to testify that what is in the affidavit is true.)

The reason I'm asking the question is that I know little about the case and find it frustrating that so much of the discussion takes its factual premises from the spin, talking points, and press releases. I'm interested in hearing about factual evidence that legitimately calls convictions into serious question. But it's frustratingly difficult or impossible to know where the facts begin and the propaganda and BS end when the advocates won't abandon or modify their talking points ("Seven of nine witnesses recanted! Seven of nine!") even after the evidentiary hearing at which a number of the supposed recanters aren't even called to testify.

Even if we were left with only, say, two recanting witnesses, I'd be interested in hearing about those witnesses, why they are purporting to recant, etc., and what their purported recantations (if true) would mean. But I can't deal with reading or hearing the spin and PR bullet points that keeps repeating that virtually *ALL* of the prosecution's witnesses ("Seven of nine!") recant, even after a hearing that clearly fails to support that premise.

Posted by: guest | Sep 22, 2011 8:16:27 AM

Ann Coulter, a lawyer, refutes the idea of innocence in this case, point by point.

She supports Bill Otis's point that no innocent person has been recently executed, that the innocence argument for abolition is mythical, like space alien invasions.

http://www.wnd.com/?pageId=347317

Prof. Berman could cite articles like hers along with abolitionist articles, for less bias.

Posted by: Supremacy Claus | Sep 22, 2011 8:16:38 AM

The Coulter article is actually pretty good. I had no idea there were 34 witnesses.

Posted by: justme | Sep 22, 2011 8:43:09 AM

Peter stated: "As the world looked on last night in disbelief, the US judiciary has shown the world its darkest and most grotesque reflection, totally devoid of any recognizable conscience, humanity or justice. The Internet age ensured an audience of millions, and the damage to the perception of the US as a decent democratic entity, fit to represent the democratic world in the fight for Universal Human Rights, will surely be be immense. For those of us who fight for the total abolition of the death penalty, our resolve to achieve that end is renewed and strengthened. Troy Davis, tormented and tortured until the end, will never be forgotten, nor let down by a movement more determined than ever to replace legal anarchy and dishonor with civility, honor and Justice."

Just wondering. Do you just copy/paste the above paragraph whenever there is an execution and change the name from "Roger Keith Coleman" to "Troy Davis?"

The "immense damage" is a big collective yawn, a few articles and forgotten by the weekend. And the European "elite" that can boast of your sycophancy would think the same of us if we executed Davis or set him free. Of course no one has ever explained why we should even care what they think.

Posted by: TarlsQtr | Sep 22, 2011 9:13:29 AM

guest - if you want the history, you will find the relevant docs here:
http://www.freetroydavis.com/legal%20documents.aspx
The time for debating them has past. Troy rests in peace.

Posted by: peter | Sep 22, 2011 9:17:33 AM

@ Peter:

"I am curious whether commenters like James and Peter (a) regard affidavits as evidence tending to prove the truth of what is asserted in the affidavit, even if an evidentiary hearing is held to determine (among other things) whether the matters stated in the affidavits are true and the lawyers who have offered the affidavit as an offer of proof of what the witness would testify at a hearing fail to call the witness to testify even though the witness is available to testify and (b) whether they would regard this as reliable evidence in any setting other than a death-penalty case in which the affidavit purports to support the proposition that the defendant is innocent or otherwise shouldn't be executed."

Posted by: guest | Sep 22, 2011 10:23:40 AM

@James
I stopped reading anything Gamso writes after I realized he left 90% of relevant information out of his posts.

Posted by: MikeinCT | Sep 22, 2011 11:37:21 AM

Guest, for readers like you who realize they are not getting the truth from the news coverage and want to know more, I have posted an excerpt from the US District Court decision with links to the full 172-page decision.

Posted by: Kent Scheidegger | Sep 22, 2011 12:22:42 PM

guest --

Good luck on getting your question answered.

Posted by: Bill Otis | Sep 22, 2011 12:37:02 PM

SC --

Thank you for your note here: Sep 22, 2011 8:16:38 AM.

Ms. Coulter lays out the facts the Left is sweeping under the rug. Again, her article is here: http://www.wnd.com/?pageId=347317

The contrast between (1) the Left's dishonesty in concealing the extent of the evidence showing Davis's guilt, and (2) its moral outrage over his supposed innocence, is just staggering.

Again, all nine Justices voted against certiorari in the main case, and all nine voted against the stay last night.

Posted by: Bill Otis | Sep 22, 2011 12:49:13 PM

TarlsQtr --

"Do you just copy/paste the above paragraph whenever there is an execution and change the name from 'Roger Keith Coleman' to 'Troy Davis?'"

Ouch. That's not fair. Don't you understand that when abolitionists are caught pulling off an innocence hoax, no word can thereafter be said about it?

For cryin' out loud, TarlsQtr. You really are reprobate. You're probably still teaching you kid not to steal and to lay off the pot.

Some people just don't adjust well to the modern era.

Posted by: Bill Otis | Sep 22, 2011 1:10:34 PM

Bill, given the sparseness of the petition, 9-0 was the only possible decision. Was any Justice really going to vote to stay based on a "stay now, we'll file later" motion?? Just terrible lawyering.

Posted by: federalist | Sep 22, 2011 1:33:24 PM

"one of the most controversial death penalty cases in Georgia" history." There's another one. Indeed. Troubling that the Georgia Board voted 3-2 to deny Davis a pardon. Execute him now and give him a pardon in 70 years? Not the first time. In 1915, the Georgia Board voted 2-1 against commuting the death sentence of the Jewish businessman Leo Frank who was convicted of murdering 13 year old Mary Phagan. Because of lingering doubts about Franks' guilt, Governor John Slaton, commuted the sentence to life. Slayton paid a terrible political price for this act of courage. But he knew he would; he must have read the passage in the Talmud: "In a place where ther are no men, strive to be a man." Of course a mob of Georgia worthies, believing in the absolute guilt Frank, lynched him. 70 years later a witness came forward with evidence exonerating Frank!
As reported in Wikiepedia: "In 1982, nearly 70 years after the murder, Alonzo Mann, who had been Frank's office boy, told authorities that he had seen Jim Conley alone at the factory carrying Phagan's body. This contradicted Conley's testimony that Frank had paid him to move the girl's body. Mann swore in an affidavit that Conley had threatened to kill him if he reported what he had seen. When the boy told his family, his parents made him swear not to tell anyone else. Mann finally decided to make a statement in what he called an effort to die in peace. He passed a lie detector test, and died three years later at the age of 85.

Mann's deposition was the basis of an attempt to obtain a posthumous pardon for Frank from the Georgia State Board of Pardons and Paroles. The effort was led by Charles Wittenstein, southern counsel for the Anti-Defamation League, and Dale Schwartz, an Atlanta lawyer, though Mann's testimony was not sufficient to settle the issue. The board also reviewed the files from Slaton's commutation decision. It denied the pardon in 1983, hindered in its investigation by the lack of available records. Conley had died in 1962. The state's files on the case were lost and with them the opportunity to apply modern forensic techniques, such as comparing Frank's dental records with photographs of bite marks on Phagan's body. It concluded that, 'After exhaustive review and many hours of deliberation, it is impossible to decide conclusively the guilt or innocence of Leo. M. Frank. For the board to grant a pardon, the innocence of the subject must be shown conclusively." At the time, the lead editorial in the 'Atlanta Constitution began, 'Leo Frank has been lynched a second time'.

Frank supporters submitted a second application for pardon in 1986, asking the state only to recognize its culpability over his death. The board granted the pardon on March 11, 1986.[68] It said:

Without attempting to address the question of guilt or innocence, and in recognition of the State's failure to protect the person of Leo M. Frank and thereby preserve his opportunity for continued legal appeal of his conviction, and in recognition of the State's failure to bring his killers to justice, and as an effort to heal old wounds, the State Board of Pardons and Paroles, in compliance with its Constitutional and statutory authority, hereby grants to Leo M. Frank a Pardon.[69]

In 1995 on the 80th anniversary of the lynching, Rabbi Steven Lebow of Temple Kol Emeth placed a plaque on a building nearby the site of the hanging; it read "Wrongly accused. Falsely convicted. Wantonly murdered."] On March 7, 2008, a State historical marker was erected by the Georgia Historical Society, the Jewish American Society for Historic Preservation, and Temple Kol Emeth, near the building at 1200 Roswell Road, Marietta. The memorial reads:

Near this location on August 17, 1915, Leo M. Frank, the Jewish superintendent of the National Pencil Company in Atlanta, was lynched for the murder of thirteen-year-old Mary Phagan, a factory employee. A highly controversial trial fueled by societal tensions and anti-Semitism resulted in a guilty verdict in 1913. After Governor John M. Slaton commuted his sentence from death to life in prison, Frank was kidnapped from the state prison in Milledgeville and taken to Phagan's hometown of Marietta where he was hanged before a local crowd. Without addressing guilt or innocence, and in recognition of the state's failure to either protect Frank or bring his killers to justice, he was granted a posthumous pardon in 1986"

Posted by: Michael R Levine | Sep 22, 2011 1:51:10 PM

federalist --

As the recent stays the Court has granted (over your well grounded objections) attest, the Court can do what it pleases, and any Justice can do as he or she pleases.

For example, it certainly would have been possible for a liberal Justice to say this: "I concur in the decision to deny the stay, since no substantive grounds are presented to support it. Nonetheless, it should be troubling to my colleagues that the case has been so rushed that defense counsel has had no practical opportunity to develop such grounds."

Such a qualification would have had a lot more to it (although still quite weak) than what the four liberals said in their dissent to the Court's order denying the defendant relief in the recent Leal execution.

Posted by: Bill Otis | Sep 22, 2011 1:53:15 PM

As for the best evidence question regarding affidavits and available witnesses, the best evidence rule would favor the witness testifying if there were any question about the validity of the affidavit. I would be interested to see the transcript. Did the prosecution or the judge even ask for the witness to testify, or did the defense justifiably believe that the overwhelming weight of the recantations, the revelation that the prosecution's jailhouse snitch had testified falsely, etc., would easily win the day and that having the witness taking the stand was unnecessary?

Did the judge give the defense any notice whatsoever that he would strongly prefer to hear from the witnesses themselves?

In other words, I understand the point about best evidence but am skeptical that Judge Moore's tossing out of the recantations was sincerely based on best-evidence concerns, which he apparently did not voice to the defense until he wrote an opinion in which everything the prosecution presented was credible and everything the defense presented was "smoke and mirrors." His overall conduct seems to have been more along the lines of an ambush.

As another example:

"At the June hearing, Davis' lawyers wanted to call witnesses who had given sworn statements that Coles had told them after the trial he was the actual killer. But [Judge] Moore did not allow these witnesses to testify because Davis' lawyers did not subpoena Coles to testify."

http://www.ajc.com/news/atlanta/judge-rejects-troy-davis-598327.html

Here again, it would be useful to see the transcript. Judge Moore wouldn't offer a recess so that the defense would have an opportunity to subpoena Coles? Or, since this was a bench trial, why not let the defense call the witnesses and then weigh the evidence appropriately based on Coles' eventual testimony (or lack thereof)? This was extraordinary judicial conduct, especially when the specific purpose of the hearing was to hear the new evidence.

As yet another example, Judge Moore incredibly speculates that the jailhouse snitch's testimony was not believed by the jury in the first place, and that therefore the fact that the snitch is now admitting that he completely lied is irrelevant. How the judge somehow read the minds of the jury as to what did and did not influence them remains unexplained. For many judges, the mere revelation that the prosecution had convinced a jailhouse snitch to give false testimony would be enough to toss the entire case.

So if you really read Judge Moore's opinion, you'll find that the hearing was largely an exercise in him either refusing to hear the new evidence, or in hearing it and then crafting reasons to disregard it.

On a personal note, beyond the sadness of watching our society knowingly execute someone that a reasonable person would deem innocent, it is sad to see how the reaction of the ultra-right to this moral conundrum has been simply to fabricate and propagandize an alternate reality in which Troy Davis is indeed guilty beyond a reasonable doubt. If the facts don't fit, make up your own and repeat them. It's truly Orwellian. Ann Coulter, Michelle Bachmann, Rick Perry. Applause for 234 executions in Texas. Talk about bizarre, cult-like behavior. I don't think some of you realize how frighteningly sheep-like and manipulated it sounds to normal people. Just saying...

At least a lot of truth about our society is being revealed in all of this.

Posted by: James | Sep 22, 2011 4:44:09 PM

James --

On what basis ought one to believe that your critical assessment of Judge Moore's disposition of this case is more learned or acute than that of the Supreme Court, which unanimously denied review of his order without so much as a single concurrence, much less a dissent, expressing the concerns you raise?

Posted by: Bill Otis | Sep 22, 2011 5:03:24 PM

Bill-

Good question as to why they raised none of those points. Probably it didn't rise to abuse of discretion in their view. The Supreme Court took action on behalf of Davis, but the the action they took was to send the new evidence back for review by a Georgia federal judge. I am not cynical enough to claim that they intended this outcome, but the upshot was that the review carried out by the Georgia federal judge, Judge Moore, was not meaningful.

Once he had carried out his review (which in my view only the gave the appearance of being a review) and denied relief, the Supreme Court was really stuck. They had already imposed an extraordinary federal evidentiary hearing, something that they hadn't ordered for fifty years, on the Georgia courts. For them then to question the results of that hearing would perhaps have made them seem results-driven and overly intrusive on Georgia.

If the Supreme Court had granted relief this time around, I was betting that it would have been on the issue of Judge Moore disregarding the recantation of the jailhouse snitch on the basis of the jury not being influenced by his testimony in the first place. But I guess that it did not rise to abuse of discretion, in their view.

That's what's sad to me here: that this can happen. Everyone can see what any reasonable person can see, but everyone's hands are tied. Everyone is playing their roles and doing their job and a most-probably innocent person is executed.

Posted by: James | Sep 22, 2011 5:44:06 PM

James --

But couldn't at least one of the Justices have said very much what you have said by writing a concurring opinion? Justices all the time use concurrences to voice concerns sturcturally identical to the ones you raise.

The only reason I can think of that not a one of them said something along the lines you suggest is that none of them believes it, and each was satisfied that, last night, Davis got the justice due him.

Posted by: Bill Otis | Sep 22, 2011 6:36:07 PM

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