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September 20, 2011

Georgia board denies clemency to Troy Davis

My students in class today will hear (yet again) how wrong I can be, as I had predicted to them last week that the Georgia Board of Pardons and Paroles would this time vote to commute Troy Davis's death sentence.   However, as this lengthy Atlanta Journal-Constitution article reports, this morning the "Board of Pardons and Paroles had declined to commute the death sentence of Troy Anthony Davis." Here is more from the AJC report:

"We've been here three times before," said Anneliese MacPhail, mother of Mark Allen MacPhail, who was shot to death while working a second job in 1989.  "This is our fourth time [to face an execution date] so you get kind of weary of it and [I] don’t know if I can believe this. We are ready to close this book and start our lives. This has been a long haul."

The board released its decision just after 8 a.m., after spending an entire day hearing from Davis' supporters and then prosecutors and MacPhail's relatives.

The Davis family said through a spokeswoman they were not ready to comment on the decision Tuesday morning but may hold a news conference later in the day. They are still planning to visit Davis at the Georgia Diagnostic and Classification Prison near Jackson, the location of the state's death row and execution chamber. "It’s the wrong decision," said one of Davis' attorneys, Jason Ewart. "It’s a mistake."

He said the five-member board ended its presentation after three hours while the other side -- prosecutors and the MacPhail family -- was given at least four hours. “It sounds like they [prosecutors and family members] just brow beat them [the board]," Ewart said.

The Davis legal team is considering a last-ditch effort in the courts even though Davis has exhausted his appeals, Ewart said.

Davis' case has already taken more unexpected turns than just about any death-penalty case in Georgia history and his innocence claims have attracted international attention. Its resolution was postponed once again when the parole board late Monday announced it would not be making an immediate decision as to whether Davis should live or die. Davis, 42, is scheduled to be put to death by lethal injection on Wednesday at 7 p.m. at the state prison in Jackson....

While some states give the governor the authority to commute a sentence of someone about to be executed that is not the case in Georgia; that power lies with the parole board. Three years ago, the board declined to commute Davis' death sentence to life with or without parole, but it has three new members since that decision. Over the past decade, the board has commuted three death sentences -- Alexander Williams in 2002, James Willie Hall in 2004 and Samuel Crowe in 2008....

Calls for Davis to be spared execution have been made by numerous dignitaries, including former President Jimmy Carter, Pope Benedict XVI, former FBI Director William Sessions, former Georgia Supreme Court Chief Justice Norman Fletcher and Larry Thompson, the former deputy U.S. attorney general. Davis' advocates, including Amnesty International and the NAACP, have used social media to rally worldwide support. Last week, Davis' supporters presented the parole board with the names of more than 663,000 people asking that Davis be granted clemency.

This is the fourth time the state of Georgia has set an execution date for Davis. On three prior occasions, he was granted stays -- twice just hours before his execution was to be carried out.

On one occasion, the U.S. Supreme Court stepped in and ordered an extraordinary hearing, giving Davis the chance to clearly establish he was an innocent man. But a Savannah judge, after hearing two days of testimony, ultimately ruled that while Davis’ new evidence “cast some additional, minimal doubt on his conviction, it is largely smoke and mirrors.”

A few older and recent posts on the Davis case: 

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.

Though not stated expressly, I assume the vote to deny clemency here was unanimous (5-0).  And, as the statement suggests, it would appear that not a single member of the Georgia Board of Pardons and Paroles has even residual doubts about Davis's guilt in the murder of MacPhail 22 years ago. 

September 20, 2011 at 09:55 AM | Permalink

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Comments

One thing that is always missed here is that the white cop died protecting an African-American homeless person. Let's not forget the bravery of MacPhail who died trying to help the helpless from the predations of thugs.

Posted by: federalist | Sep 20, 2011 10:21:33 AM

"We are ready to close this book and start our lives."

She needs an execution for that? She could have done that a long time ago.

Posted by: anon | Sep 20, 2011 10:43:28 AM

Prof. Berman,

Thank you for posting the Davis developments.

Have you followed Righetti in Nevada? A previous non-fatal attack of his in '09 may have occured when he was a (Roper-protected) minor; his recent (alleged but confessed)murderous attack he perpetrated at the tender age of 19.

Federalist is right. Remember the victims, honor the heroes as well.

Posted by: adamakis | Sep 20, 2011 10:44:31 AM

I would comment on "anon's" comment, but why bother? It speaks for itself.

Posted by: federalist | Sep 20, 2011 11:02:37 AM

Mother of victim: "We are ready to close this book and start our lives."

Anon stated: "She needs an execution for that? She could have done that a long time ago."

Let a Progressive talk for 30 seconds and they always let the veil (to the extent they even have one) slip. In an entire several hundred word article, all you can comment on is to essentially tell the mother of the victim to "get over it?"

Please spare us the future discussions or claims that you give a dam# about the victims of crime and any lectures about "compassion" and "mercy."

What a small and mean-spirited person you must be...

Posted by: TarlsQtr | Sep 20, 2011 11:08:41 AM

"But a Savannah judge, after hearing two days of testimony, ultimately ruled that while Davis’ new evidence “cast some additional, minimal doubt on his conviction, it is largely smoke and mirrors.”"
Whether the doubt is minimal, or as many of us believe, substantial, the Death Penalty is clearly inappropriate. The only right legal decision was to grant a retrial. That the Georgia Board of Pardons and Paroles has chosen to turn their backs on this legal travesty is not unexpected, but does demonstrate what a farce these boards are when it comes to taking responsibility for the lives of the probably innocent.

Posted by: peter | Sep 20, 2011 11:26:37 AM

The people on this blog who incessantly demand "compassion" seem to have not a word to say in response to anon's amazingly callous comment. I guess the Compassion Lobby is getting pretty selective.

Posted by: Bill Otis | Sep 20, 2011 1:18:49 PM

The most important document in this case, which few people seem to have read, is the decision of the US District Court after the Supreme Court's transfer for an evidentiary hearing. I have uploaded an excerpt with links to the full document here.

Posted by: Kent Scheidegger | Sep 20, 2011 2:07:19 PM

FUCK BILL OTIS.

Posted by: You | Sep 20, 2011 2:07:37 PM

FUCK KENT SCHEIDEGGER, TOO.

Posted by: You Two | Sep 20, 2011 2:13:59 PM

Bring it on, Professor.

Posted by: You and Two | Sep 20, 2011 2:16:01 PM

Waiting.

Posted by: You and Two | Sep 20, 2011 2:23:37 PM

My, my, what reactions one can provoke simply by posting a public document.

When you have no good argument, just shout. Online, use profanity and the old reliable all caps.

Posted by: Kent Scheidegger | Sep 20, 2011 2:28:08 PM

Not about your doc, Kent (YOU ASSHOLE)

Waiting for the professor.

Posted by: You and Two | Sep 20, 2011 2:42:17 PM

@Kent, I agree with your above post 100%. Rarely do I agree with you or Bill Otis. But, I'm not going to act like a 2 yr old, especially on a professional site...

I do think Bill only sees one side of most subjects, the governments.
I think Kent is very much along those lines as well....I feel that Federal anything is grossly over done and is wasteing money and lives...As are some states....But both of you are or were in the buisiness, but don't really have a connection with the real world....That is, all people make mistakes, some minor, others major and for a long time....Most need to go away for a spell of time.. But nobody should be warehoused, like Federal does....Like a can of beans. I'm not going to debate this, so save room on this file server bill..

I think you and you two, was effected by this case, obviously and has strong feelings either by relationship or by someone he knows in a similar situation.
I can't imagine the rejection and hurt by someone getting the deasth penalty.

I think for having 3 or 4 times coming before the Parole board, the man should have gotten his sentence reduced to Life...But thats just me...Then he could continue to work on his slim to none chances of getting out...

I have no info, or connection to anyone invoilved with this thread, just a reader who sees a terrible hurt and anger in you and you two...

I believe you and you two's reaction was triggered by a caulis and hopeless responses that were made....So some of you are going to have to put up with it..Maybe not even responses that you made on this thread...Bil And Kent are regulars on this site...With yrs of heartless responses on inmates...
Enough said by me....

Posted by: Josh2 | Sep 20, 2011 2:58:37 PM

Still waiting for the professor.

Posted by: You and Two | Sep 20, 2011 3:09:41 PM

Josh2,

Your comment was thoughtful. Thank you, and sorry you had to be in the vicinity with the others on here. Your observations are probably not applicable in my case, though, and too generous.

Still waiting for the professor.

Posted by: You and Two | Sep 20, 2011 3:36:08 PM

Kent - the problem with Moore's assessment is that it blatantly paints the witnesses who recanted trial evidence as unreliable, yet persists with the reality that is was their evidence which was primarily responsible for his conviction and sentence in the first place. You really cannot have it both ways. Either the witnesses are credible or they are not. Regardless of whether you believe what they now say, no fair assessment of the evidence given at trial can be said to now stand up. That being the case, no court should say that a jury might not have come to a different conclusion. The ONLY way to test that is for a new trial to be held.

Posted by: peter | Sep 20, 2011 3:38:02 PM

Peter, perhaps you could answer why it took Davis years to finger Coles. And maybe, while you're at it, you could explain the yellow shirt/white shirt problem for the defense.

Posted by: federalist | Sep 20, 2011 3:58:13 PM

Hi Bill,

In addition to the "Compassion Lobby" being out for an extended lunch, the "Tolerance Lobby" failed to even show up for work today. They must be union help.

The good news is that such a violent reaction is a surefire sign that (s)he knows you are correct. The bad news is that we are probably paying for the Thorazine "You" is pouring down the drain instead of taking as prescribed by his mental health professional.

Posted by: TarlsQtr | Sep 20, 2011 4:01:37 PM

federalist - I hear a lot, and read in court judgments, about the ability or opportunity for the accused x or accused y to make this assertion or that. The reality is that in most cases it is the defense team/attorney who decide whether to pursue a particular line or strategy. That is where the quality of the legal team is of paramount importance. Given that we know that the system too often allows or imposes inexperienced or inappropriate or poor quality defense lawyers in death penalty cases, then the accused must, if justice is to be done, have the opportunity to have remedy where this occurs. Neither you or I (or a court) have the answers to your question - further reason for the new trial, or at least the acceptance of sufficient doubt to warrant a commutation of the death penalty.

Posted by: peter | Sep 20, 2011 4:14:30 PM

Zzzzzzz

Must have been an unusually long class this afternoon - even the professor fell asleep.

Posted by: You and Two | Sep 20, 2011 4:35:56 PM

peter, he had some seriously good counsel for the hearing in front of the federal district court. Stop. You're clowning yourself.

Posted by: federalist | Sep 20, 2011 4:38:58 PM

federalist - the personal comment, as those of others in the past, merely weakens your own arguments, and has absolutely no impact on me. However good the current legal defense team, remedy has NOT been granted by the court in defiance of the recantations and new evidence, and perhaps in defense of an indefensible system that led to the conviction and sentence all those years ago.

Posted by: peter | Sep 20, 2011 4:50:06 PM

peter --

"Kent - the problem with Moore's assessment is that it blatantly paints the witnesses who recanted trial evidence as unreliable, yet persists with the reality that is was their evidence which was primarily responsible for his conviction and sentence in the first place. You really cannot have it both ways. Either the witnesses are credible or they are not."

For an intelligent man, these two sentences are remarkable. Under what theory does a judge have to find all witnesses credible or none? The idea that the judge was "having it both ways" is just astonishing. Some witnesses are credible and some aren't; indeed some are obvious liars. The assessment is made one witness at a time.

The judge, who unlike you saw and heard the evidence firsthand, found the non-recanting witnesses credible and the recanters incredible. The notion that his can be characterized as "having it both ways" is just wildly incorrect.

Beyond that, it's just mind-boggling that you and some others here think you know more, and are better equipped to assess the evidence, than the judge who had it before him. The Justices of the Supreme Court -- every one of them -- do not share your high-handed view, not a single one of them having voted even to hear, much less overturn, the district judge's ruling.

Please tell me that Kagan, Ginsburg, Sotomayor, etc. et al. are barbarians. Please!!!

Posted by: Bill Otis | Sep 20, 2011 5:19:36 PM

You and Two --

It's probably useless, but I'll try anyway:

Where did you get the idea that Doug Berman is obligated in any sense whatever to answer a commenter on his blog?

Posted by: Bill Otis | Sep 20, 2011 5:23:35 PM

TarlsQtr --

It's unfair to judge abolitionism by headcases like You and Two and Anon. What's revealing, though, is that other abolitionists remain mum while those two (and others) do their dirty work.

I would have hoped for better.

Posted by: Bill Otis | Sep 20, 2011 5:31:09 PM

"Kent - the problem with Moore's assessment is that it blatantly paints the witnesses who recanted trial evidence as unreliable, yet persists with the reality that is was their evidence which was primarily responsible for his conviction and sentence in the first place."

That is not an accurate description of Moore's assessment. He goes through the case carefully, witness by witness.

Some of the "recantations" submitted by Davis, he finds, are not recantations at all. The affidavit submitted does not contradict the witness's testimony on the main point.

For one witness, and this is my favorite, Davis's attorneys submitted an affidavit and then declined to call her as a live witness for the hearing even though she was sitting, waiting to testify, right outside the courtroom!

That is a smoking gun, and the judge correctly so found. An affidavit written by the lawyer for a party and signed by a witness is practically meaningless. It's not hard to persuade someone to sign something. Very often they don't even read it.

Why wouldn't they call her as a live witness? The most likely explanation is that they knew she would contradict the affidavit, and they would have Eggs Benedict on their face.

Again, I refer anyone who really wants to know the truth to the full opinion, linked in my prior comment.

Posted by: Kent Scheidegger | Sep 20, 2011 5:38:04 PM

"I guess the Compassion Lobby is getting pretty selective."

Some of us have jobs that don't involve posting on blogs all day long. Everyone should feel compassion for the MacPhails. They've suffered a horrible loss. If they've spent the last two decades under the false belief that they cannot begin to heal until Troy Davis is dead, that's another reason to feel sympathy for them.

Of course, it's a pretty safe bet that some people in the pro-dp crowd have spent the last two decades making sure that the MacPhails have continued to believe that Troy Davis must die before they can finally find peace. Using the families of crime victims to further the pro-dp agenda is a pretty reprehensible thing to do, but I suppose that kind of thing can be expected from people who have devoted their lives to seeing others put to death.

Posted by: The Death Penalty Sucks. | Sep 20, 2011 6:16:30 PM

No, Kent, in my opinion the most likely explanation is that the defense figured they had just won in the Supreme Court, had an overwhelming case, and shouldn't take the risk of putting the recanting witnesses on the stand. If the defense had put the recanting witnesses on the stand, probably the judge would have instead hung his hat on something they said under cross-examination as his basis for concluding that the recantations were not credible.

And sorry, I wasn't impressed by the judge's opinion. It seemed one-sided and result-driven to me. To him, everything the prosecution presented was "credible" while everything the defense presented wasn't. Sometimes cases require a judge to step back and exercise basic common sense. For whatever reason, this judge stubbornly refused to do that here. The forest is screaming innocent, so he starts scrutinizing patterns in the bark.

As for the judge having it both ways, Peter is right. At the end of the day, the only person who did not either recant or contradict his original statement was the actual killer, Sylvester Coles. I suppose Coles is the credible witness to whom Bill Otis refers, the last credible man standing after the judge's case-by-case assessment. Coles: the one who first fingered Davis to the cops and the one who threatened the others to finger Davis.

This is what I don't understand: how is it that watching Coles just get away with this doesn't make all of the law-and-order types on this board angry? Doesn't it make your blood boil that he was able to game the system in this way and literally get away with murder? He must be laughing his head off.

Posted by: James | Sep 20, 2011 6:21:36 PM

The Death Penalty Sucks --

"Some of us have jobs that don't involve posting on blogs all day long."

And some of you don't give a tinker's dam about murder victims' families, and only pretend to when you're reminded that your callous stance is bad PR.

"Everyone should feel compassion for the MacPhails."

Then why does the very first experession of it from an abbie come only after I raise the issue, and then only from a single commenter?

"Using the families of crime victims to further the pro-dp agenda is a pretty reprehensible thing to do, but I suppose that kind of thing can be expected from people who have devoted their lives to seeing others put to death."

Using the families of murderers to further the pro-abolition agenda is a pretty reprehensible thing to do, but I suppose that kind of thing can be expected from people who devote their time to arguing that murderers, not matter how cruel their crimes or numerous their victims, should escape a lawful, just and democratically approved punishment.

Posted by: Bill Otis | Sep 20, 2011 7:33:03 PM

James --

Just one question. Are you in a better position to determine the correct outcome in this case than the judge who heard the evidence firsthand?

Posted by: Bill Otis | Sep 20, 2011 7:40:00 PM

"And some of you don't give a tinker's dam about murder victims' families, and only pretend to when you're reminded that your callous stance is bad PR."

If I ever meet you in person, I'll tell you who I am and I'll ask you to say that to my face. I've got no problem saying anything I've said here to yours.

Posted by: The Death Penalty Sucks. | Sep 20, 2011 7:55:16 PM

I am just now finding time to read this comment thread, and I do not understand either what provoked the immature comments of You and You Two, nor what You and Two want me to do.

Can anyone help out a lawprof at the end of a long day so I can better understand what is going on here?

Posted by: Doug B. | Sep 20, 2011 7:57:18 PM

"Can anyone help out a lawprof at the end of a long day so I can better understand what is going on here?"

I've got $10 that says he or she is Supremacy Claus's first acolyte.

Posted by: The Death Penalty Sucks. | Sep 20, 2011 8:12:00 PM

Prof. Berman,

I can explain neither why "You" and "You and Two" could muster only obscenities instead of intelligent comments nor what provoked them. Perhaps they thought this was the Democratic Underground site (please forgive the jest).

I would like to state that I benefit greatly from the commentary of wits such as Scheidegger and Otis, as well as gritsfrobreakfast, TarlsQtr, and you, the eminent host.

(1) Anything on Righetti, BTW?
(2) Do you have any thoughts on the OSU football transgressions or is that too far afield for this blog? -,-My Dad & Uncle are grads of OSU-,-

Posted by: adamakis | Sep 20, 2011 8:39:36 PM

"And some of you don't give a tinker's dam about murder victims' families, and only pretend to when you're reminded that your callous stance is bad PR."

Maybe someone could explain how killing a defendant who may be innocent constitutes "giving a tinker's dam about murder victims' families".

Posted by: Anonymous | Sep 20, 2011 9:06:33 PM

The Death Penalty Sucks --

I said, "And some of you don't give a tinker's dam about murder victims' families, and only pretend to when you're reminded that your callous stance is bad PR."

You respond, "If I ever meet you in person, I'll tell you who I am and I'll ask you to say that to my face. I've got no problem saying anything I've said here to yours."

1. Do you need to meet me in person to tell me who you are? I don't hide who I am. You can say anytime who you are. Care to?

2. If you want to get macho about it, go right ahead. You've got company of sorts, in You | Sep 20, 2011 2:07:37 PM, and You Two | Sep 20, 2011 2:13:59 PM. Am I supposed to be impressed with the toughness of a person who declines to identify himself?

3. You get plenty aggressive and high handed in your last paragraph of Sep 20, 2011 6:16:30 PM, and then want to act outraged when it gets handed back to you. My goodness.

4. And now here's your surprise, Mr. Macho. I have looked at some of your earlier posts. On reconsideration, I believe you actually are serious about punishment for criminals, but irrationally oppose the death penalty, a subject about which you become overheated.

Because I think you're serious about punishment -- with that exception -- my retort, though fully justified toward some of your allies, was a low blow as respects you. You have my apology for it.

5. I'll be happy to consider meeting you personally at a debate on the death penalty, where you'll have every opportunity to show me up for a bloodlusting hooligan, and portray yourself as whatever More Enlightended Soul you apparently take yourself to be.

I have offered to debate others here, but not a single commenter has taken me up, preferring to continue to snipe from behind the tree of Internet anonymity. I of course have no idea what you will do. Maybe I'll be surprised.

Posted by: Bill Otis | Sep 20, 2011 9:18:10 PM

Anonymous __

I said: "And some of you don't give a tinker's dam about murder victims' families, and only pretend to when you're reminded that your callous stance is bad PR."

You say, "Maybe someone could explain how killing a defendant who may be innocent constitutes 'giving a tinker's dam about murder victims' families'".

I have no interest in whether he MAY BE innocent. I have a strong interest in whether he IS innocent. After years of state and federal review -- including a nearly unprecedented order by the Supreme Court for the lower courts to review factual innocence -- those courts have determined that he is not innocent.

And I will repeat what I said (since you could not truthfully, and do not, deny it): Some of you don't give a tinker's dam about murder victims' families, and only pretend to when you're reminded that your callous stance is bad PR. And others of you don't bother to pretend even then, cf. anon | Sep 20, 2011 10:43:28 AM.

Posted by: Bill Otis | Sep 20, 2011 9:43:39 PM

"You have my apology for it."

I accept your apology. I apologize in return if anything I said offended you.

Posted by: The Death Penalty Sucks. | Sep 20, 2011 10:50:47 PM

"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. If they had, Moore wrote Tuesday, he could have tested the validity of Coles' alleged confessions."

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

Bill Otis reasonably asks whether I think I am in a better position to determine the correct outcome in this case than the judge who heard the evidence firsthand. No, I do not think I am in a better position than the judge.

But there is a reason that we ask judges to write opinions: so we can understand their reasoning. Here, the judge wrote a 172-page opinion. There is a also reason that we make a record of the proceedings: so we can review the judge's conduct.

The judge only asks whether the new evidence "greatly changed the balance of proof at trial." He mistakenly believes that that is the end of his role. Instead, he should have viewed his role as making a "probabilistic determination about what reasonable, properly instructed jurors would do in light of all the evidence," language that he quotes but does not follow.

I actually sort of agree with him that the new evidence did not greatly change the balance of proof, but only because the balance of proof was already pretty even - evenly chaotic, I should say. White shirt, yellow shirt, a dark night, a bunch of BS eyewitness testimony, the least-reliable type of evidence, which was also coerced and manipulated. In other words, it is difficult greatly to change the total mix when the total mix should have resulted in a not-guilty verdict to begin with. I mean: white shirt, yellow shirt. Are you kidding me? Do we need an expert to testify as to how close yellow is to white on the frequency spectrum?

Then you look at decisions by Judge Moore that are at odds with his concept that his mandate is to consider new evidence in the first place, such as his above decision to exclude Davis' key new evidence on the basis that Davis had not subpoenaed Coles. Well, for god's sake, stay the proceedings for a week and let Davis subpoena Coles! Why would Judge Moore not do so when Judge Moore's concept of his marching orders from the Supreme Court were to assess Davis' new evidence?

So no, I am not saying I am in a better position than Judge Moore, but we can see from his opinion and the record that he saw himself as filling a very limited and inelastic procedural role in this saga. I can see what happened. We all can.

And what do we all see? It is best described by one of the jurors: had she know then what she knows now, the verdict would have without question been not guilty. A mistaken verdict having been handed down, as so often happens in our system everyone then says their hands are tied such that justice must NOT be served, at least by them in their limited procedural role.

And throughout the only actors whose hands are not tied are the prosecutors, whose job it is to uphold justice. They could have stopped this travesty at any time. It is on their hands that the blood of Davis will remain forever. They are the ones who failed our system and the rule of law. They are the ones who ignored their duty. They are the ones who damaged and betrayed everyone involved, including the victim's family, Davis' family, and Davis himself.

Posted by: James | Sep 21, 2011 12:11:41 AM

Another view on this from strikelawyer:

The law enforcement camp doesn’t really care whether Davis is guilty or innocent, so it’s pointless to keep raising that as if it’s an issue. It’s irrelevant to them. The only thing that matters to them is that the “system” must do their will. They are its owners. Deviation from the party line is not permitted. Defiance will be punished. Troy Davis should have learned that lesson a long time ago, and he will pay with his life for not learning it. And it doesn’t matter whether he actually killed that cop in 1989 or not. That’s not why he is being executed. Not really.

And the same applies to any other player in the saga, including the judges and the parole board and anyone else. Defiance will be punished. They might not strap you to a gurney and poison you, but you will be punished.

This is about who has power, and nothing else. And the police have power. And they mean to keep it. From their perspective this is the only “principle” involved. In fact, as a particularly power oriented individual once told me, imposing one’s will arbitrarily is a more exquisite demonstration of power because it is a more pure illustration of it: in addition to prevailing you are also showing that you answer to no one and nothing, not even elementary reason.

Power isn’t all it’s cracked up to be if reason or truth can trump it.

http://strikelawyer.wordpress.com/2011/09/20/troy-davis-death-and-the-power-of-law-enforcement/

Posted by: James | Sep 21, 2011 3:29:32 AM

@ James: "The law enforcement camp doesn’t really care whether Davis is guilty or innocent, so it’s pointless to keep raising that as if it’s an issue. It’s irrelevant to them."

If that's what you really think, as opposed simply to rhetoric, then you seriously misunderstand the people you're arguing against (most of them anyway).

One other thought: I know very little about the case and have only skimmed Judge Moore's decision/report-and-recommendation-to-the-Supreme-Court. It seems remarkable to me, though, that a number of the commenters here (and a lot of other people out there), who have little faith in the judicial system's ability to accurately and reliably prove guilt, appear to have absolute certainty and confidence that the other person, Coles, is actually the guilty person.

I understand the idea of new evidence raising serious doubt about someone's guilt, whether or not I agree that this is a case in which this has truly occurred. I'm just struck by the willingness of some of the avowed skeptics of Davis's guilt to accept as a conclusively-established fact -- a given -- that the other person is guilty. (I'm not suggesting that one should *have* to prove conclusively that someone else committed the crime to upset a long-final conviction, I'm just saying that I'm struck by peoples' willingness to accept that that has occurred in this case.)

Posted by: guest | Sep 21, 2011 8:14:03 AM

Another thing I don't understand is the rhetorical device of saying "no one will ever know for certain whether Troy Davis is guilty," which is something that I understand Professor Garrett ("Convicting the Innocent") has also said. That's clearly false, even taking as a given that denials by the people who clearly *do* know whether they are guilty are given little weight because of their self-interest.

Posted by: guest | Sep 21, 2011 8:24:36 AM

In response to the post by James (Sep 21, 2011 12:11:41 AM):

Does anyone (Kent?) happen to know whether Judge Moore made it clear to Davis's counsel that if they made a determination not to subpoena Coles, put him on the witness stand, and at least attempt to give Judge Moore an opportunity to hear his testimony and evaluate his credibility, he wouldn't hear testimony by others purporting to relate what Coles had supposedly told them?

I ask because James says it wasn't fair not to continue the proceedings to allow counsel to subpoena Coles. Do we actually know that Davis's counsel had any interest in subpoenaing Coles? I.e., do we know actually know whether Davis's counsel had already decided not to call Coles despite knowing that Judge Moore would treat (or would likely treat) that decision as making it impossible to entertain third-party testimony about what he had supposedly said to others?

Posted by: guest | Sep 21, 2011 8:33:33 AM

The Death Penalty Sucks --

OK, we're square. We are not the only people on the board who occasionally get overheated.

I was sincere in offering to consider a face-to-face debate on the DP. I have done this several times at law schools here and there. My next one is at Rutgers Law School on November 2.

I was also sincere in asking who you are. Your opposition to the DP is unusual for someone who in other contexts supports accountability. My experience is that DP opponents often say they otherwise favor serious sentencing, but don't actually mean it. You do mean it.

You might have good reasons for wanting not to identify yourself here; many people do (although some have bad reasons). Still, you now have me curious. I'm kind of guessing you're a policeman or a prosecutor or ex-prosecutor. Getting warm?

Posted by: Bill Otis | Sep 21, 2011 8:50:37 AM

James --

One thing that has me mystified is the assertion that the real reason those, including judges, who align themselves The System's determination to execute Davis are all marching in step out of fear that otherwise, as strikelawyer says, "they will be punished."

When Judge Moore rendered his opinion, it went all the way back to the Supreme Court. If I'm not mistaken, not a single Justice voted to grant cert to hear the case again, thus, I guess, aligning themselves with The System that will execute Davis.

So I have two questions. First, did all nine Justices vote to deny relief for fear of being "punished?" And who, exactly, "punishes" Supreme Court justices?

The only "punishment" I've ever seen, if that's the right word, is that the NYT or other far left outlets will try to nail pro-DP Justices for being unethical. Not one single time have I seen the media go after a Justice for voting to overturn a death sentence. To the contrary, voting against the DP is the best way out there to get yourself in a front page puff piece about how Truly Wonderful you are.

So what "punishment" are you referring to?

Posted by: Bill Otis | Sep 21, 2011 9:11:19 AM

guest --

This is not the first time DP critics have maintained a solipsistic insistence that The Truth About The Murder Can Never Really Be Known -- and in the next sentence roared that Mr. X (someone other than the defendant) was the "real killer."

It happened in the Roger Keith Coleman case. The DPIC wrote a long article about how the muddy circumstances of the case made Coleman's conviction impossibly problematic. It then went on the say the the "real killer" was a person they pointed to by name. As Justice Scalia notes in the second part of his concurrence in Kansas v. Marsh, the designated "real killer" sued once DNA evidence nailed Coleman for sure, and those who had made the thundering (but false) accusation against him were forced to settle the case, I presume by forking over major dough.

Moral of story: It's never really possible to know that Defendant X did it, because, see, who among us can really "know" the ultimate truth? Meantime, it most certainly IS possible to know that Prosecutor Y is a scumbag (see James's post) because, when we're talking about those dirty cops and Nazi prosecutors, YOU BETTER DARN WELL BELIEVE the truth is knowable.

Posted by: Bill Otis | Sep 21, 2011 9:31:19 AM

"Your opposition to the DP is unusual for someone who in other contexts supports accountability."

Prisons are a necessary part of society, at least for now. Maybe 500 years from now we won't need them anymore, but for now we do. I'm not really concerned with retribution, and I don't think retribution should be the primary goal of a prison. A substantial portion of the people who are in prison have a real chance of becoming responsible members of society. We need to use prisons to get those individuals to the point where they actually want to live a normal life.

There are also a substantial number of people in prison who have absolutely no hope of being anything other than a violent criminal for at least the next several decades. We need to keep them locked away until they are old enough to be harmless. Not because we want to impose retribution on them, but because they are dangerous people and prison is the best place for them to be.

Then we have the people on death row. Almost all of them have demonstrated that they are so dangerous that they need to be in a very secure prison for the rest of their natural lives. A handful of them might be ok to integrate back in to society when they are in their 70s, but those would mostly be the ones who probably never should have been tried on capital charges in the first place. For the most part, however, these people should be confined until the day they die.

"Still, you now have me curious. I'm kind of guessing you're a policeman or a prosecutor or ex-prosecutor. Getting warm?"

I'm a realist who opposes capital punishment on moral and religious grounds. That's all you're getting.

Posted by: The Death Penalty Sucks. | Sep 21, 2011 7:42:52 PM

TDPS --

"I'm a realist who opposes capital punishment on moral and religious grounds. That's all you're getting."

You understand, do you not, that tens of millions of knowledgeable, realistic, moral and religious people support the death penalty? And indeed that the number of such people who support it vastly outstrips the number who don't?

As for what "I'm getting": I asked in good faith, and have given more than I asked of you. So there's no occasion to be belligerent about it.

Posted by: Bill Otis | Sep 22, 2011 12:29:35 AM

I was actually trying to be funny with that line, sorry it came across as belligerent.

Posted by: The Death Penalty Sucks. | Sep 22, 2011 5:47:28 PM

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