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September 14, 2011

Will third time clemency hearing be the charm for Troy Davis on eve of his latest execution date?

The media buzz around Georgia's latest scheduled execution date for Troy Davis is increasing, as highlighted by these new piece:

Importantly, as detailed in this Atlanta Journal-Constitution piece from last week, "Davis has been granted a third clemency hearing by the state Board of Pardons and Paroles, which will hear his renewed claims of innocence two days before his scheduled execution."  Davis' execution is now scheduled for 7 pm on Sept. 21, but Georgia's "parole board will hear presentations from Davis' legal team and prosecutors on Sept. 19."  Importantly, though this "parole board denied Davis' clemency request in September 2008," as of now "the five-member board has three new members."

Not surprisingly, traditional opponents of the death penalty are growing ever more vocal in their call for Davis to receive clemency based on enduring questions about his guilt.  And this snippet from the commentary by former Georgia federal prosecutor Bob Barr highlights why I believe truly shrewd death penalty supporters would be wise to root for Davis to be granted clemency this time around:

I am a longtime supporter of the death penalty.  I make no judgment as to whether Davis is guilty or innocent.  And surely the citizens of Savannah and the state of Georgia want justice served on behalf of Officer MacPhail.

But imposing an irreversible sentence of death on the skimpiest of evidence will not serve the interest of justice.  By granting clemency, the Georgia Board of Pardons and Paroles will adhere to the most sacred principles of American jurisprudence, and will keep a man from being executed when we cannot be assured of his guilt.

Just as the innocence of (now executed) Cameron Todd Willingham has become an article of faith for death penalty abolitionists, the innocence of Troy Davis will always be assumed by death penalty opponents.  Consequently, Davis' ultimate execution would quickly become another loud talking point in abolitionist advocacy, and Davis' case has additional salience because of his race and the hard-to-dispute reality that his factual guilt can at least reasonably be questioned.  But if Davis is granted clemency, then his case then becomes a talking point for death penalty supporters who are often eager to assert that this punishment will not be used "when we cannot be assured of [a defendant's] guilt."

September 14, 2011 at 10:47 AM | Permalink

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Comments

Nice try, but no dice. You can't try some frakkin' jujitsu move in this one. Guilty as charged and there ain't no one concerned about the issue on penalty side that is going to be convinced by this. These are the 'droids we were looking for, sucka.

Posted by: Federale | Sep 14, 2011 2:06:51 PM

"Upon full hearing, the District Court found an inconvenient truth: "Mr. Davis is not innocent."" (C&C 9/7/11)

Against the thoroughly evidentiary conviction, Davis's team proffers that "some witnesses have recanted testimony that helped convict him" years & years later?

CHECK THIS OUT:
"Of the seven witnesses Davis' legal team say recanted their trial testimony, "only one is a meaningful, credible recantation." The value of this recantation -- given by a jailhouse snitch who testified Davis told him he killed MacPhail -- is diminished because it was already clear the witness testified falsely at trial, the judge said." {AJ-C 8/24/10)

We all agree we daren't execute an innocent, but why is this objectively a possibility with Troy Davis?

Posted by: adamakis | Sep 14, 2011 4:15:06 PM

Doug, your sense is way off here. If and when Davis is executed, within a week, no one will care, other than his family and a few of the committed. Davis was there and said nothing for 10 years about who the "real" killer was. That's not consistent with innocence.

Posted by: federalist | Sep 14, 2011 5:43:04 PM

"We all agree we daren't execute an innocent."

But, as with torture, we never do it. So, what's the problem?

I don't know how much this matters, I say this as someone against the death penalty, but the theory has some bite. A few cases often taint the the pool and if this guy is granted clemency, it could be used to show "see, if you trust us, we will bend over backwards in close cases."

But, honestly, if even a rather blatant case in Texas mostly get press on liberal and libertarian blogs, it only will have a limited reach. Still, who knows, in a few close classes in the state, the government might get slight additional benefit of the doubt.

Posted by: Joe | Sep 14, 2011 6:03:27 PM

adamakis --

How uncouth of you to remind people that a federal district judge painstakingly examined the facts in this case, on direct orders from the Supreme Court, and found Davis's claim of innocence meritless.

Don't you know that whether a person is innocent is determined by Amnesty International, and not by courts?

Gads, you must be a wahoo.

Posted by: Bill Otis | Sep 14, 2011 9:42:12 PM

"But if Davis is granted clemency, then his case then becomes a talking point for death penalty supporters who are often eager to assert that this punishment will not be used 'when we cannot be assured of [a defendant's] guilt.'"

The problem is that DP opponents will continue to claim he was innocent no matter what. They claimed Roger Keith Coleman was innocent for close to ten years, even though his guilt was proved by DNA evidence.

DP opposition is mostly based on temperament and ideology, that those things won't change regardless of what becomes of Davis. If anything, if the execution is cancelled, abolitionists will become emboldened by the idea that, if they raise sufficient ruckus, and shout "racism!" loudly enough, the state can be bullied into nullifying a perfectly legal judgment that has received as much judicial review, state and federal, as you'll ever run across.

Posted by: Bill Otis | Sep 14, 2011 9:53:24 PM

"How uncouth of you..."

Bill Otis, the pot who calls every kettle black.

You're not a racist, are you?

Posted by: Huh? | Sep 14, 2011 11:20:54 PM

Huh? --

You're not a kettle, are you?

Posted by: Bill Otis | Sep 14, 2011 11:52:30 PM

Mr. Davis' conviction was based on the testimony of nine witnesses. Seven recanted. One of the two that didn't recant was fingered by the other seven as the actual triggerman. The seven who recanted gave varying stories of how the police and prosecutors directed them as to what to say. Again, his conviction was based on their testimony, the only evidence presented. There was no weapon that could have been associated with Troy Davis. There were no fingerprints. There was no DNA. Whether they would have testified that he did it if the police and prosecutors had not intervened and insisted will never be known. But the fact that the witnesses were coerced gives enough reasonable doubt not to lynch this man. Yes, the judge said only one of the witnesses that recanted was credible - but if they were credible enough in their original testimony to send him to death row, surely, they are credible enough to cause reasonable doubt. And often, don't the judges, in giving their opinion, merely reiterate a point made by a prosecutor in the government's brief?

Posted by: msyoung | Sep 15, 2011 1:18:13 AM

So Msyoung, what's your endgame--release the guy?

Posted by: federalist | Sep 15, 2011 7:08:56 AM

msyoung --

1. "And often, don't the judges, in giving their opinion, merely reiterate a point made by a prosecutor in the government's brief?"

You need to tell that to Stevie Reinhardt, Gilbert Merritt, Myron Bright and Rosemary Barkett, among many others. I'd pay good money to be there when you do.

You'd be better advised to ask, "And often, don't internet posters, in forming their opinion, merely reiterate a point made by defense counsel in the NACDL's press release?"

2. Federalist makes a good point. Either Davis did it, in which case there's no legal problem in carrying out the sentence properly imposed, and repeatedly affirmed by the reviewing courts; or he didn't, in which case he shoudn't be in jail at all.

The only logical consequence of concluding that there was insufficient reliable evidence to support the conviction is to release him. Why isn't that what you're proposing? Or is it?

3. After-the-fact, years-later recantations are a dime a dozen. The judge heard the evidence first hand. You didn't. Assuming arguendo your broad brush accusation that "often" judges just rubber stamp the prosecutor's arguments, what is your specific evidence that THIS judge did so? I didn't see any in your post.

4. So far as I can see, you're repeating a characteristic defense lawyer ploy: You're outraged at what you take to be the false charges leveled against the defendant -- and then turn around and, not missing a beat, make your own accusations of amoral conduct against the judge without a grain of specific evidence.


Posted by: Bill Otis | Sep 15, 2011 9:32:53 AM

You'd be better advised to ask, "And often, don't internet posters, in forming their opinion, merely reiterate a point made by defense counsel in the NACDL's press release?"

Actually, I form my opinion based upon facts. I have yet to read any article about this case that disputes the fact that the recanting witnesses testified that their testimony was either coerced by police or that they had lied "in order to secure leniency for their own troubles with the law." The fact that over 250 former death-row inmates that were cleared by DNA had originally confessed to their crimes due to police coercion and torture proves that the practice does exist.

These facts are reiterated in today's Huff Post article which reports on Former FBI Chief William S. Sessions calling on Georgia to stay the order.

Would I recommend letting him go? That's not the way the law works. If a person is released from death-row, their sentence is generally commuted to life in prison. My personal preference would be to have a new trial. If the evidence is as strong as you seem to believe it is, then it will certainly survive another trial.

Perhaps the Pope, Jimmy Carter, 50 members of Congress, former federal prosecutor and four-term Republican congressman Bob Barr, the NAACP, Amnesty International, some Georgia State University law professors and 20,000 concerned citizens from around the country are as naive as I am in believing that as Barr stated, "imposing an irreversible sentence of death on the skimpiest of evidence will not serve the interest of justice." Perhaps you know how strong the evidence was - minus a murder weapon, fingerprints, any physical evidence at all linking him to the crime -- with several persons naming another person as the shooter. Or perhaps it doesn't matter to you. He was convicted - string him up - right? I am so thankful that I am among those who do not think like you.

Posted by: msyoung | Sep 15, 2011 11:40:30 AM

I misstated the number of citizens concerned about this case, and calling for a stay of the order. I had said 20,000; however, one article states that over 200,000 people have sent letters, signed petitions, made phone calls, etc. Perhaps the execution of Todd Willingham left a bad taste of injustice in America's mouth.

Posted by: msyoung | Sep 15, 2011 12:23:12 PM

msyoung --

"The fact that over 250 former death-row inmates that were cleared by DNA had originally confessed to their crimes due to police coercion and torture proves that the practice does exist."

There are 250 former death row inmates who (a) were cleared by DNA evidence and (b) originally confessed to the crime???!!!

Would you mind citing your source for that? Because I'll tell you right now it's a complete fantasy.

Let's see the source. I'll respond to the rest of your post after you produce it.

Posted by: Bill Otis | Sep 15, 2011 12:46:46 PM

There are several sites. Do the research. One such site is the Innoence Project:

http://www.innocenceproject.org/Content/Facts_on_PostConviction_DNA_Exonerations.php

There have been 273 post-conviction DNA exonerations in the United States.
This article does not say they were all former death row inmates, only 17 in fact, however the Committee Against the Death Penalty sites different statistics. In any case - if only one was exonerated because of DNA, that is one too many.

Eyewitness misidentification testimony was the leading factor in 75 percent of post-conviction DNA exoneration cases in the US.

False confessions and incriminating statements lead to wrongful convictions in 25 percent of cases.

Twenty two of the first 265 DNA exonerees pled guilty to crimes they did not commit.

Again, this proves that the practice does exist.

Posted by: msyoung | Sep 15, 2011 1:08:02 PM

LOL, I am not impressed with Bob Barr, the NAALCP, or Jimmy "The Failure As President" Carter. An appeal to authority is a logical fallacy. Try again. An appeal to the NAALCP and Jimmy Carter is doubling down on stupid.

Posted by: Federale | Sep 15, 2011 2:03:25 PM

It continues to amaze me that a special interest legal blog is where people go to make cheap shots or knee-jerk statements.

This includes either/or statements -- there is no middle ground where there is enough doubt that death isn't proper? Not the case repeatedly when prosecutors decide who to bring death sentences against, governors commute to life sentences and juries convict but don't handle out death sentences to. It isn't "release or execute." This is a basic point.

Ditto when conservative or former top law enforcement voices are raised. If just the NAACP or the ACLU supports something, we hear sneers about knee-jerk liberals. When conservatives and law officer voices come in, however, the views don't seem to change on some fronts. So, sneers about Carter being a one term president (like Bush Sr.) come off just as gratuitous.

I expect this sort of red meat on some partisan blog, but here? I guess everyone needs a place to sneer.

Posted by: Joe | Sep 15, 2011 2:36:28 PM


msyoung --

You stated point blank that there were over 250 former death row inmates who were cleared by DNA after having given false confessions to murder.

When asked document this assertion, you quickly scramble down, citing sources that are far from neutral and, more importantly, don't claim ANYTHING EVEN RESEMBLING your assertion.

To wit: You now state that the Innocence Project -- your first cited source -- claims only 17 cases of death row exonerations, not a single one of which, so far as you disclose, came after a false confession. But let's put that latter fact to one side. Is 17 "over 250"?

You then cite another source, the Committee Against the Death Penalty, but do not give their number. I'll assume, for your benefit, that it's twice as high. That would be 34. Is 34 "over 250"?

Then you say, "Eyewitness misidentification testimony was the leading factor in 75 percent of post-conviction DNA exoneration cases in the US."

I'll assume arguendo that's true. Is 75% of 17 "over 250"?

Your final two assertions, about guilty pleas and false confessions, are not only inapposite to your original, fictional claim; they are also flatly inapposite to Davis, since he neither confessed nor pleaded guilty.

Again, your assertion was this: "[O]ver 250 former death-row inmates that were cleared by DNA had originally confessed to their crimes due to police coercion and torture..."

Your own figures and sources, which you produce only after being asked, prove that your assertion was a breathtaking lie. In fact, I have never heard of a single individual charged with murder who falsely confessed, was sent to death row, and was subsequently cleared by DNA evidence.

People with a sound case don't need to lie, and they don't need to exaggerate, much less wildly exaggerate. Why do you?

Posted by: Bill Otis | Sep 15, 2011 2:46:45 PM

I do not have the sources you seek to prove what I said. That does not make it any more right to execute a man when the "evidence" is so faulty. The bottom line is Troy Davis' life. You don't know me, and so you can attack my character all you want. Calling me a liar does not make it right to execute Troy Davis, nor does it make your blood-thirty need to see a man lynched when you don't have all of the facts any more palatable.

I was in fact very wrong. There were not 250 death row inmates who made false confessions exonerated by DNA.

So, that is a very convenient debate tactic. Attack the person with whom you disagree. Find a fact that is controversial or just wrong and call that person a liar and attack their argument. That makes you look very smart. Right?

The bottom line is - you have evidently not read any of the articles all of which agree that the seven recanting witnesses were either coerced by police for their original testimonies, or they were trying to save their own skin. That makes the evidence unreliable. This is not about what you or I think - it's about whether there is a reasonable amount of evidence to justify murdering Troy Davis for a crime for which there is not enough proof. If you'd rather attack me then deal with that - fine.

Posted by: msyoung | Sep 15, 2011 3:12:16 PM

msyoung --

"I was in fact very wrong. There were not 250 death row inmates who made false confessions exonerated by DNA."

If you had let it go at that, I would have thanked you and dropped the subject. Instead, you go right back on offense. Thus I shall respond.

"I do not have the sources you seek to prove what I said."

It's not a question of sources (athough you earlier claimed that you DID have sources, and cited some of them). It's a question of truth. As you now acknowledge, this sourceless claim was your own product -- in other words, you flat out made it up.

"That does not make it any more right to execute a man when the "evidence" is so faulty."

It is right to execute a man when he is guilty of murder, and that guilt has been affirmed by, among others, an experienced and neutral federal judge, on remand from the Supreme Court. He considered all your objections and found them wanting. He knows more about the case than you or anyone else blogging about it.

"The bottom line is Troy Davis' life. You don't know me, and so you can attack my character all you want.

When you fabricate important assertions of fact, you can expect to be "attacked," via argument, anyway. The answer is not to fabricate them.

"Calling me a liar does not make it right to execute Troy Davis, nor does it make your blood-thirty need to see a man lynched when you don't have all of the facts any more palatable."

Weren't you just complaining about character attacks? And I won't even get into your (again) wildly overcooked stuff about "lynched." The man has had, what, 20 years of judicial review, including by the SCOTUS?

"So, that is a very convenient debate tactic."

Questioning the factual assertions of an opponent is a standard and thoroughly legitimate practice. What's your objection to it, other than that it showed you up?

"Find a fact that is controversial or just wrong and call that person a liar and attack their argument."

I didn't have to look very hard to "find" it. It was the fourth sentence in your post (msyoung | Sep 15, 2011 11:40:30 AM). If you didn't want me to read it, maybe you shouldn't have made the decision to write it. Why am I to blame because you did?

"That makes you look very smart. Right?"

Take it up with the Dean. After that, tell me why how I look is relevant to the evidence about Troy Davis or the reviewing courts' assessment of that evidence.

"The bottom line is - you have evidently not read any of the articles all of which agree that the seven recanting witnesses were either coerced by police for their original testimonies, or they were trying to save their own skin."

Actually I did read the Huffington Post piece, which is significantly different than what you represented it to be (although it does take your side and repeat some of your arguments).

In any event, all your objections to the testimony are standard fare when accomplices and the like testify, and are all subject to cross examination on exactly the credibility grounds you cite. The jury and the reviewing judges, all of whom have more direct knowledge of the facts than you do, disagree with your conclusions. In some people, this would inspire a degree of modesty.

"This is not about what you or I think - it's about whether there is a reasonable amount of evidence to justify murdering Troy Davis for a crime for which there is not enough proof. If you'd rather attack me then deal with that - fine."

What I attacked was a central factual assertion in your argument. After a couple of back-and-forth posts, you admit it was false. This does not stop you from now indignantly complaining that the problem is not that you say things that aren't true, but that I recognize them as untrue and say so.

Far out.

Posted by: Bill Otis | Sep 15, 2011 4:19:44 PM

Well, I guess you told me:-) All I have to say is 650,000 petition signatures were delivered to the Georgia Board of Appeals! Woo hoo!!

Posted by: msyoung | Sep 15, 2011 8:54:43 PM

@ Bill Otis

"You're not a kettle, are you?"

No. I am not a swellhead either, but your posts suggest that you are.

Posted by: Huh? | Sep 15, 2011 9:54:09 PM

Huh? --

A "swellhead"???!!! Is that the best you can do? Oh, c'mon, how 'bout "bloodlusting Nazi"? "Neanderthal thug"? I know you can do it! I have faith!!

P.S. If you ever care to come off the ad hominem stuff and make an actual argument about facts, I'll be all ears.

P.P.S. For example, if you'd like to defend the factual propositions msyoung has been advancing, that might be one place to start. They might be incorrect (indeed, they certainly ARE incorrect), but at least they're about issues instead of persons.

Posted by: Bill Otis | Sep 15, 2011 11:28:13 PM

msyoung --

"All I have to say is 650,000 petition signatures were delivered to the Georgia Board of Appeals! Woo hoo!!"

I welcome this recognition of the legitimacy of the people's voice in deciding issues of capital punishment. I only hope you won't switch back when the next poll comes out AGAIN showing better than 2-1 support for the death penalty.

Posted by: Bill Otis | Sep 15, 2011 11:33:57 PM

@msyoung
And petitions like that accomplish nothing. It could be 10 million and still not effect the outcome.

Posted by: MikeinCT | Sep 15, 2011 11:36:00 PM

Bill Otis: I welcome this recognition of the legitimacy of the people's voice in deciding issues of capital punishment. I only hope you won't switch back when the next poll comes out AGAIN showing better than 2-1 support for the death penalty.

1. People are not "deciding" issues of capital punishment, they are merely voicing their support for Troy Davis, and disapproval of a possibly innocent man being executed based on evidence which the judge stated was not "ironclad."

2. What would I switch back to when a poll comes back showing 2-1 support for the death penalty. Of course there are many people for the death penalty, and the fact that I don't agree with their views only means we are not living in a monolithic society. In fact we are living in a nation where intelligent people can have differing views and express their different views and reasons for those views without attacking or trying to belittle anyone who disagrees with them.

3. Bob Barr stated very clearly that he is a proponent of the death penalty, however, he does believe that "imposing the irreversible penalty of death based on the skimpiest of evidence does not serve the interest of justice." That is what the Troy Davis argument is about, Mr. Otis. Not whether or not the death penalty is right or wrong, but how much evidence do you need and how strong should that evidence be before a human being is put to death?

MikeinCT says "And petitions like that accomplish nothing. It could be 10 million and still not effect the outcome."

You are correct. And my applauding the petitions will also not effect the outcome, any more then anything that has been said by any of us in this conversation will. We are expressing our opinions. That's the purpose of the "comments" section. I am happy to see that there are 650,000 people who are willing to speak up for this young man and I was expressing that.

Posted by: msyoung | Sep 17, 2011 12:45:42 AM

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