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September 22, 2011

Residual doubt, race, federalism and finality: which death penalty legal fronts might the Davis case impact?

Even though Troy Davis has now been executed by the state of Georgia, there is plenty more to say about the case and all the attention it garnered.  Because I expect lots of others to keep talking about the case's import and possible impact concerning the death penalty, I doubt I will blog that much about the case in the future.  However, I did have a few (too quick?) thoughts about some legal issues implicated by the Davis case which might become a focus for attention and reform for those who feel strongly that justice was poorly served or that the legal system looked bad in Georgia last night.

1.  Residual doubt:  I suspect that even those persons strongly confident about Davis's guilt would at least acknowledge that it was reasonable for others to have "residual doubt" about his guilt.  The problem for Davis and his supporters is that none of our current death penalty laws demand (or even arguably allow) a defendant to get a lesser sentence or to be taken off death row based solely on "residual doubt."  Juries are told to convict unless they have a "reasonable doubt," and a juror or reviewing judges can sensibly assert they have a residual doubt but not a reasonable one.  (In the hub-bub over the Casey Anthony verdict, I surmise that critics of the jury acquittal might recognize "residual" doubt about her guilt, but they still thought the jury should not have deemed any doubt to be "reasonable.") 

Often governors or clemency boards can and will commute a death sentence based on what I am calling "residual doubt."  Indeed, Ohio Governor John Kasich commuted a death sentence on this ground just three months ago (blogged here) in a case similar to the Davis case in some important ways.  Perhaps reformers will want to respond to the Davis case by more formally authorizing or even requiring juries, judges and others involved in death sentence review to reject or undo a death sentence based on only "residual doubt." 

2.  Race and federalism:  I suspect that few would deny that race and geography played a part at least in the way the Davis case was perceived, if not also in the way it was handled.  I believe Davis's lawyer has already labeled the execution a "legal lynching," and one need not be a student of history to appreciate the many ways in which the fact Davis was black, the fact his victim was white, and the fact this was all going on in the deep south all contributed to the case's salience for so many.  

Still, in the wake of Supreme Court's landmark McClesky ruling now a quarter century ago, only two states (Kentucky and North Carolina) have passed legislation enabling defendants charged or sentenced to death to attack their sentences based on claims of racial disparity.  More broadly, in the context of the death penalty, many continue to cling to federalism concepts as a defense for why federal executive and legislative officials should have had no role or even any say in what Georgia wanted to do.  (The Terry Schiavo hub-bub a few years back bears recalling here: the removal of life support seems to be clearly a state law matter, but Congress got involved based on a commitment to life in that case.) Perhaps reformers will want to respond to the Davis case by pushing harder for Racial Justice Acts or for more federal oversight of state capital systems (beyond judicial oversight via habeas).

3.  Finality:  The real fundamental issue in the Davis case was the issue of finality: the judicial system is understandably (and justifiably?) loathe to undo or even question the outcome of a fair and constitutional trial no matter what future evidence emerges suggesting that the initial outcome was flawed.  The problematic practicalities (and costs) of allowing most anyone who claims innocence after a lawful conviction to obtain a new trial based on new evidence leads me to think that few reformers will seek after the Davis case to undercut our legal systems' strong commitment to finality after a fair and constitutional trial.  But this critical and too often under-discussed judicial commitment to finality is where the rubber always really hit the road in the Davis case.

A few older and recent posts on the Davis case and the (similar?) Ohio case that led to clemency: 

September 22, 2011 at 09:31 AM | Permalink

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hmm out of all the bull crap of that article...this part hits the worse!

"3. Finality: The real fundamental issue in the Davis case was the issue of finality: the judicial system is understandably (and justifiably?) loathe to undo or even question the outcome of a fair and constitutional trial no matter what future evidence emerges suggesting that the initial outcome was flawed."

Number 3 is proven to be a FRAUD on the american people every 6-8 months when 20,000 us jurisdictions from local all the way to the federal lvl pass an enteire new set of retroactive illegal punishments for upwards of 1,000,000 former sex offenders!

so shut up with the lies!

Posted by: rodsmith | Sep 22, 2011 11:30:58 AM

On the race issue, it's worth noting that the jury that convicted Davis consisted of 7 blacks and 5 whites. See http://www.npr.org/2011/09/21/140672023/troy-davis-case-renews-death-penalty-debate.

And Davis was executed the same day that Texas executed a white defendant who had murdered a black victim.

So maybe -- just maybe -- the old hackneyed, knee-jerk comments about racist death penalty (which made a lot of sense in the 1960s and 70s, when the study in McClesky was conducted) should be viewed more skeptically now.

Posted by: A lawyer | Sep 22, 2011 12:12:32 PM

Actually, those hackneyed, knee-jerk comments were viewed skeptically then by people who looked carefully:

"The best models which Baldus was able to devise which account to any significant degree for the major non-racial variables, including strength of the evidence, produce no statistically significant evidence that race plays a part in either of those decisions [to seek or impose the death penalty] in the State of Georgia." McCleskey v. Zant, 580 F. Supp. 338, 367-368 (ND Ga. 1984).

Posted by: Kent Scheidegger | Sep 22, 2011 12:30:50 PM

A lawyer --

Spot on. In addition, the white person Davis murdered was a police officer coming to the aid of a black homeless man whom Davis and his buddy were harrassing.

The jury, a majority of which was black (as you note), returned the death penalty in two hours.

The rote cry of racism is irresistable for some people, especially those who think America stinks, but that cry is beyond absurd on the facts of this case.

Posted by: Bill Otis | Sep 22, 2011 12:33:03 PM

Troubling that the Georgia Board voted 3-2 to deny 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 1:18:40 PM

http://www.lawyersgunsmoneyblog.com/2011/09/the-needle-and-the-damage-done

Posted by: ssb | Sep 22, 2011 1:21:42 PM

I suspect that even those persons strongly confident about Davis's guilt would at least acknowledge that it was reasonable for others to have "residual doubt" about his guilt.

Professor, what the heck makes you assert this? In the last three days you have done four posts about Davis, and those posts produced 116 comments. A majority of those comments are from people who support Davis's execution. I read through them all, then read through them again, and I could not find any hint that anyone who supported Davis's execution acknowledges any doubt in his guilt, whether reasonable, unreasonable or residual. I acknowledge that the discussion very quickly degenerated into name calling, so any subtletly such as your point about residual doubt may have not surfaced in the discussion.

I think you are trying to create an academic debate when one simply does not exist. The vocal pro-death penalty side is unwilling to concede the actual danger of executing an innocent, or even acknowledge residual doubt, becaue to do so would concede a point they are not willing to concede. Which is why reforms to make the death penalty more fair are always driven by the anti-death penalty movement. And the chances of a reform in eyewitness identification procedures, or police interview techniques, or any other defect in current police practice that Davis shows are the same as the chances of reform in forensic science based on Cameron Willingham or Larry Swearingen: negligible at best.

I am admittedly painting the pro-death penalty movement with a broad brush, but I feel it is justified. Pro-death penalty advocates almost never advocate for reforms to make the death penalty more fair or minimize the risk of convicting an innocent, and when they do (such as the Texas State Senator who sponsored the commission to study fire science after Willingham) they are attacked by other pro-death penalty advocates as tools of the defense bar, the ACLU or generic New Yorkers.

Posted by: Paul | Sep 22, 2011 9:49:38 PM

Actually, those hackneyed, knee-jerk comments were viewed skeptically then by people who looked carefully:

"The best models which Baldus was able to devise which account to any significant degree for the major non-racial variables, including strength of the evidence, produce no statistically significant evidence that race plays a part in either of those decisions [to seek or impose the death penalty] in the State of Georgia." McCleskey v. Zant, 580 F. Supp. 338, 367-368 (ND Ga. 1984).

Like those hackneyed, knee-jerk people at the General Accounting Office, who studied every study on race and the death penalty in 1990 and determined that "our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision."

http://archive.gao.gov/t2pbat11/140845.pdf

Posted by: Paul | Sep 22, 2011 10:02:33 PM

Paul --

"The vocal pro-death penalty side is unwilling to concede the actual danger of executing an innocent..."

Except that I, a charter member of the "vocal pro-death penalty side," did so point-blank in the New York Times about 36 hours ago.

http://www.nytimes.com/2011/09/23/us/in-debate-davis-execution-offers-little-closure.html?_r=2

The exact passage is this: "William Otis, a former federal prosecutor and special White House counsel under the first President George Bush....added: 'The question is not whether you can avoid errors. The only realistic question in an adult mind is which set of errors you’re going to accept. You have to be mature and honest about it, and understand there is the risk of executing an innocent person.'"

Care to issue a retraction?

Posted by: Bill Otis | Sep 23, 2011 1:06:52 AM

Paul --

One other, related question: Are you, as a member of the vocal anti-death penalty side, willing to concede the actual danger that an unexecuted killer could do it again?

Hint: It's not really a case of "could." It's a case of "has." See, e.g., Allen v. Woodford, 395 F.3d 979 (9th Cir. 2005).

Posted by: Bill Otis | Sep 23, 2011 1:12:53 AM

Bill, why would I retract anything? You do not concede any doubt in Davis's guilt.

Posted by: Paul | Sep 23, 2011 8:15:37 AM

Paul --

"Bill, why would I retract anything?"

Beacause it's false, a fact you could not and do not dispute.

Posted by: Bill Otis | Sep 23, 2011 10:32:56 AM

Bill, take a deep breath and calm down. It is possible to have a discussion without trying to start a fight. I said that "I could not find any hint that anyone who supported Davis's execution acknowledges any doubt in his guilt, whether reasonable, unreasonable or residual." You responded by citing to the Times article quote, where you never mention Troy Davis by name. You talk about the theoretical execution of a hypothetically innocent person, not about any real danger that Troy Davis was innocent and executed. I read that quote several times, and I cannot find any suggestion or reasonable inference that you believe Troy Davis may have been innocent.

Then I went to Crime and Consequences and read your follow-up to the Times quote. You wrote:

It is certainly true that the primary duty of courts is to get it right, and that a rush to judgment must be avoided. But no such thing happened in the Davis case. Appellate courts looked at it a dozen times over the course of two decades. To my knowledge, not a single judge or Justice took the view that the evidence, then or now, showed that Davis was innocent.

Then I read through your other posts there. You repeatedly attack the motives of those who think Davis is innocent, you say you take satisfaction that Davis was executed, but I cannot find any post there where you write that Davis might be innocent. I glanced through the posts on this blog, and again I cannot find any post where you write that you have any doubts about Davis's guilt. This is far more work than I should have done, but I couldn't help myself when someone on the internet was wrong.

There is a huge difference between saying that some hypothetical innocent person in some hypothetical case might be executed and saying an actual innocent person either has or will be killed. The former is an academic abstraction that requires no action; the latter requires us to act to prevent the death of the innocent or to fix whatever caused their death.

I believe there is a good chance Davis was innocent, but even if he was that alone does not justify abolishing the death penalty. It does require us to reform the death penalty to fix whatever mistakes produced such a horrible result. However the politics of death makes such reforms very difficult, if not impossible. Cameron Willingham, like several other defendants, was convicted based on arson reconstruction we now know to be junk science, but the politics surrounding the question of whether Willingham was innocent has prevented us from enacting something as basic and fair as a rule to limit the use of such junk science in the future. If the death penalty needs to be reformed to prevent the execution of the innocent, but the emotion surrounding the death penalty makes such reform impossible, then that is a proper argument to abolish the death penalty.

Posted by: Paul | Sep 23, 2011 11:54:29 AM

Paul --

1. Before going on to the grander issues of the death penalty and "reform" (which always means cutting back on capital punishment), it's necessary that we get the basics down.

2. Foremost among the basics is being accurate about factual matters.

3. You stated, as a matter of fact, the following: "I think [Prof. Berman is] trying to create an academic debate when one simply does not exist. The vocal pro-death penalty side is unwilling to concede the actual danger of executing an innocent, or even acknowledge residual doubt, becaue to do so would concede a point they are not willing to concede."

That sentence says point-blank that the pro-DP side is unwilling to concede the danger of executing an innocent. It is a general accusation, inviting a general response. It does not, by its terms or its logic, refer only to Troy Davis.

4. It is also false, as I demonstrated.

5. Notwithstanding its falsity, you still refuse to retract it.

6. Where I come from, when a person makes a false statement, he retracts it because of the bedrock obligation to be honest. It makes not a particle of differnence, for these purposes, what my views of Troy Davis may be. Indeed it wouldn't make any difference if I were an axe murderer. There is nothing about me that affects your obligation to tell the truth. That obligaton is free standing.

7. Your claim that the vocal pro-death penalty side is unwilling to concede the danger of executing -- to use your exact words -- "an innocent" -- is false. Will you retract it?

Posted by: Bill Otis | Sep 23, 2011 12:23:34 PM

Now that the Troy Davis case is concluded, everyone cannot deny that he most likely received the most appellate review and clemency consideration from any death row inmate in recent memory. Also, despite his claims of innocence, not one judge in the state or federal courts ever opined that he was innocent.

Posted by: DaveP | Sep 24, 2011 8:15:34 PM

Bill, while you grant in that quote there is a risk of executing an innocent, Paul's point is that you're perfectly willing and even eager to ignore that risk and justify any and all executions anyway, even in cases like Davis', Willingham, etc., where such a risk exists. In that context, your demand for a retraction is disingenuous, particularly given your record Paul (accurately) cites in the comment above your last one.

The other day you asked me to name a case where I supported the death penalty. I'd ask you in return: Can you name a case where you opposed an execution on innocence (or any other) grounds, or do you simply want, as it often seems, to maximize the number of executions in all circumstances no matter what the specifics of the case? If not the latter, please let us know which executions you have ever opposed.

Posted by: Gritsforbreakfast | Sep 24, 2011 9:46:45 PM

Grits,

Only in a world where words have no meaning could person A say this...:

"The vocal pro-death penalty side is unwilling to concede the actual danger of executing an innocent..."

Person B says this...:

"'The question is not whether you can avoid errors. The only realistic question in an adult mind is which set of errors you’re going to accept. You have to be mature and honest about it, and understand there is the risk of executing an innocent person.'

...and YOU claim that Person A is correct. Seriously? Are you really such a small and hate-filled man that you cannot admit Bill is correct on this point? Your defense of Paul does not enhance his credibility, it onlt diminishes yours.

Posted by: TarlsQtr | Sep 25, 2011 5:31:37 PM

I didn't claim that, TQ, I just asked if Bill only believes errors are made in theory or if he can identify any in the real world. I've never seen him take stances regarding actual cases that would make me think he is concerned about that risk in the least, and doubt he can identify a death sentence he opposed on grounds of innocence, or for any other reason, though we not infrequently see exonerations from death row. He and you just seem to want more executions, faster, and the details don't seem to matter, judging from your rhetoric. Bill said the question is "which set of errors you’re going to accept"? Your answer seems to be "All of them."

Posted by: Gritsforbreakfast | Sep 26, 2011 6:45:20 AM

Grits stated: "I didn't claim that, TQ, I just asked if Bill only believes errors are made in theory or if he can identify any in the real world."

You "just asked?" No, you did not "just ask." Paul made a point of (supposed)fact. Bill disputed that fact in a manner that is incontrovertible. You stated that Bill's call for a retraction was "disingenuous." That is a defense of Paul by any sane standard.

Grits stated: "I've never seen him take stances regarding actual cases that would make me think he is concerned about that risk in the least, and doubt he can identify a death sentence he opposed on grounds of innocence, or for any other reason, though we not infrequently see exonerations from death row."

Your point is silly. We do not discuss most murders on this blog because in an overwhelming majority of those, the DP is not in question. Do you expect us to link to articles about the thousands of murders that will not/should not result in the DP and make a public proclamation for each?

And you overlook the obvious. The reason we do not have questions of innocence about Davis, Brewer, et al. is because they are guilty, as deemed by a jury of peers, multiple judicial reviews (including a 9-0 SCOTUS decision in the case of Davis). The exonerations from death row make no relevant statement about those that are not exonerated. If anything, they are victories of the system. You are attempting to set up a "can't lose" scenario, where exonerations prove that the system cannot be trusted. However, if there were no exonerations, you would be screeching with equal volume that the "system" mirrored Soviet-style "justice" where trials and appeals were mere shams. Heads: You win. Tails: We lose.

Finally, has Barry Scheck even claimed that a specific executed defendant was factually innocent in modern times?

Grits stated: "He and you just seem to want more executions, faster, and the details don't seem to matter, judging from your rhetoric. Bill said the question is "which set of errors you’re going to accept"? Your answer seems to be "All of them.""

Your above statements are great examples of weaselers. You want to make a point that you have no evidence to support, so you use words like "seems" so that you have a soft landing when asked to provide specific and credible evidence. It is a great debating technique but does little to advance an honest discussion.

It comes down to the fact that you have no evidence that Bill or I believe any such thing. The honest thing to do would be to either display your evidence or shut-up about it. Unfortunately, I have little faith that you are interested in doing the honest thing.

Posted by: TarlsQtr | Sep 26, 2011 9:56:18 AM

Keep blathering, TQ: Anything to keep from answering the question I posed, huh? When asked, I could name death sentences I supported. Can you or Bill point to any you oppose?

Posted by: Gritsforbreakfast | Sep 26, 2011 10:29:57 AM

Grits stated: "Keep blathering, TQ: Anything to keep from answering the question I posed, huh?"

I'd love for you to point out exactly where you asked me a question.

Thanks again for the comic relief. Not to sound like a broken record but I really do not believe that any of you even read what you post.

Someone who does not answer questions really has no authority to bray on about others not answering their own. This is especially true when you never even asked me one.

Posted by: TarlsQtr | Sep 26, 2011 1:47:16 PM

"I'd love for you to point out exactly where you asked me a question."

What a disingenuous hack you are, TQ, no wonder you don't write under your own name. You reacted to a question I posed to Bill but you rattled on about tangents instead of answering it: "Can you name a case where you opposed an execution on innocence (or any other) grounds"?

Can you?

Posted by: Gritsforbreakfast | Sep 26, 2011 2:28:57 PM

LOL Tangents? You want to talk about "tangents?"

This entire thing started with a poster (Paul), stating that pro-DPers never will admit that there is a risk of executing innocents. Bill showed EXACTLY where he has made such a statement and then you popped your head out of the whole to ask your question of HIM regarding "specific cases." Your entire hijacking of this thread is a "tangent" from Paul and Bill's original discussion.

And now you want to call others disingenuous for not answering a question that was not asked of him?

And if you look closely, I did respond to your question but not in the way you desire. It is completely unbecoming for you to throw temper tantrums about others not answering your questions (to someone else) when you do not have the decency to answer questions that were directed AT YOU.

Don't get me wrong. I understand that the progressives on this blog are not a scientific sample that likely represents all progressives perfectly. That said, I have never met a bunch of people that lacked self-awareness like all of you here.

Posted by: TarlsQtr | Sep 26, 2011 2:57:27 PM

One more thing, Grits. Your entire presentation here is a logical fallacy. You are asking us to prove a negative.

You laid out your entire argument above. You stated in part: "He and you just seem to want more executions, faster, and the details don't seem to matter, judging from your rhetoric. Bill said the question is "which set of errors you’re going to accept"? Your answer seems to be "All of them.""

Of course, you provided no evidence to support this assertion, instead expecting us to prove that we DO NOT feel that way with your "question." If we do not, (in your mind) your premise must be true. The only way to prove you wrong (in your mind) is for me to "prove the negative" by answering your question. Even my freshman college critical thinking class could point that out. Why can't you?

An equally fallacious (and dishonest) "argument" would be for me to say, "You just seem to want more child molestations and perhaps a molester yourself, judging from your rhetoric."

Now prove to me that you are not a diaper-sniper pervert.

Posted by: TarlsQtr | Sep 26, 2011 3:15:06 PM

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