This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent – U.S. Supreme Court Justice Antonin Scalia,
writing in dissent on his dismay over the possibility that the execution of Troy Davis could be ruled unconstitutional simply because of evidence that he is innocent of the crime he was convicted of.
When I was a kid I learned, as most American kids do, that in this country people are considered innocent of alleged crimes until proven guilty beyond a reasonable doubt. It wasn’t until many years (or decades) into adulthood that I learned that that statement simply isn’t true. Perhaps it’s something that we aspire to as an ideal. But we still have a long way to go.
Some, such as Supreme Court Justice Antonin Scalia, don’t even aspire to it as an ideal – as can be seen from his statement that I quoted from him at the beginning of this post. He claims that nothing in our Constitution prohibits the execution of an innocent human being? Oh, really? From
Section I, Article 9 of the U.S. Constitution:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
The
Writ of Habeas Corpus is “a judicial mandate… ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody”. So Scalia thinks that this section of our Constitution is just some bureaucratic mumbo jumbo… that even if the right to habeas corpus leads to a presumption of innocence, no action need be taken to remedy the situation by stopping the execution of an innocent human being. What exactly does Scalia think is the reason that the authors of our Constitution allotted a whole section of the first article of our Constitution to habeas corpus, if no action need be taken on the findings of the court? I’ve argued before that Scalia
should be impeached for other of his actions. But this statement alone should qualify for his impeachment, conviction and removal from office. No country that is plagued by the likes of his presence on the highest court in the land can be considered a bastion of freedom and democracy.
Innocent until proven guilty?The lie is put to the claim that our country adheres to “innocent until proven guilty” by the growing awareness of the number of wrongful convictions which were later overturned based on new evidence. Indeed, since 1973, when the death penalty was reinstituted in the United States,
more than 130 people have been released from death row on the basis of new evidence showing that they were wrongly convicted.
And this is just the tip of the iceberg. A large number of those overturned convictions involved DNA evidence, and were therefore the consequence of new technology. But only a small fraction of capital cases have the potential of being overturned by DNA evidence. A report of a study titled: “
A Broken System: Error Rates in Capital Cases, 1973-1995”, sheds a lot of light on the problem. It found that appeals courts discovered serious errors requiring a judicial remedy in 68% of cases. The most common were:
(1) egregiously incompetent defense lawyers who didn’t even look for – and demonstrably missed – important evidence that the defendant was innocent or did not deserve to die; and (2) police or prosecutors who did discover that kind of evidence but suppressed it, again keeping it from the jury.
Justice David Souter, joined by three other Supreme Court Justices,
stated the gist of the problem in a 2006 minority opinion, noting:
evidence of the hazards of capital prosecution, (including) repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests… Most of these wrongful convictions and sentences resulted from eyewitness misidentification, false confession, and (most frequently) perjury, and the total shows that among all prosecutions homicide cases suffer an unusually high incidence of false conviction… probably owing to… intense pressure to get convictions…
Furthermore, it is well known that racial prejudice plays a prominent role in the injustices perpetrated in our judicial system – especially in the south. A January 2003
study by the University of Maryland concluded that:
race and geography are major factors in death penalty decisions. Specifically, prosecutors are more likely to seek a death sentence when the race of the victim is white and are less likely to seek a death sentence when the victim is African-American.
Particularly glaring is the
finding that the likelihood of a death sentence is
11 times higher in cases in which blacks killed whites than for cases where whites killed blacks.
Troy Davis given a chance for a hearing after nearly two decades on death rowFirst I’ll give a capsule summary of the case of Troy Davis, but I’ll be brief since I’ve previously discussed it in much more detail in another
DU post:
In the early hours of August 19, 1989, a fight broke out near a Burger King restaurant in Savannah, Georgia, between a homeless man, Larry Young, and another man, who struck Mr. Young with his pistol. A 27-year old police officer, Mark Allen MacPhail, attempted to break up the fight, but was shot dead by the man with the gun, who then fled the scene.
About two years later, Troy Davis was convicted of the murder of Mark MacPhail and sentenced to death. The evidence against him consisted of seven eye-witnesses to the murder and two witnesses who claimed that Davis later confessed the murder to them. There was no other evidence, as the murder weapon was never found.
However, of the nine witnesses, seven subsequently recanted their testimony in written affidavits. One of the two who has not recanted his story has subsequently been identified as the murderer by new evidence.
Consequently, efforts were undertaken by human rights organizations to obtain a new trial for Troy Davis, who since his conviction has undergone a truly byzantine journey through our court system, with repeated sentencing, appeals, and last minute stays of execution.
Then, in the last two days I’ve received e-mails from the NAACP and from Amnesty International informing me that a federal court has finally
ordered a hearing for Davis, to hear testimony to determine whether or not new evidence not heard at the original trial “clearly establishes (Davis’) innocence”.
In my previous post I quoted six of the original witnesses who since have
recanted their original testimony. That will be a key part of Davis’ defense. Here is a quote from just one of them, which is similar to most of the others and provides a good idea of what this whole mess is about. From Darrell Collins’ affidavit:
The police put me in a small room and some detectives came in and started yelling at me, telling me that I knew that Troy Davis…killed that officer by the Burger King. I told them that… I didn’t see Troy do nothing. They got real mad when I said this and started getting in my face. They were telling me that I was an accessory to murder and that I would pay like Troy was gonna pay if I didn’t tell them what they wanted to hear. They told me that I would go to jail for a long time and I would be lucky if I ever got out… I was only sixteen and was so scared of going to jail… I told them that it was Red and not Troy who was messing with that man, but they didn’t want to hear that… After a couple of hours of the detectives yelling at me and threatening me, I finally broke down and told them what they wanted to hear. They would tell me things that they said had happened and I would repeat whatever they said.
I testified against Troy at his trial. I remember that I told the jury that Troy hit the man that Red was arguing with. That is not true. I never saw Troy do anything to the man. I said this at the trial because I was still scared that the police would throw me in jail for being an accessory to murder if I told the truth about what happened.
A high bar The e-mail I received from Amnesty International says, in part:
The various witnesses will provide their testimony and be cross-examined to give their accounts of what happened on that tragic night in 1989 when police officer Mark Allen MacPhail was fatally shot. During this time, Troy must "clearly establish his innocence", which is an incredibly high legal standard. Without a doubt, this is going to be tough.
An incredibly high legal standard indeed, for a country that claims to aspire to “innocent until proven guilty”! Why shouldn’t it be enough to show a preponderance of evidence that establishes that the original evidence used to convict him was a sham? The whole case against Davis was based on eye-witness testimony. If seven of the eye-witnesses themselves now claim that their testimony was coerced, and if there is no evidence to offset that other than protestations by those who are alleged to have coerced testimony, why shouldn’t that be enough to overturn his conviction? Why would anyone – let alone seven people – go through the trouble of admitting to such a thing, embarrassing themselves, putting themselves at risk, stirring up a twenty year-old case, if it wasn’t true?
If the guardians of justice in my own country don’t think that this issue is important enough to resolve fairly, at least I’m heartened to know that the European Parliament takes it very seriously, as when they
proclaimed about the case:
Whereas, according to Troy Davis' lawyers, there is abundant proof of his innocence, material evidence against him has never been produced and seven witnesses for the prosecution have retracted their testimony… Whereas since 1975 more than 120 people have been released from death row in the United States, having been found innocent…
Calls upon those countries where the death penalty is imposed to take the necessary steps towards its abolition… Asks that Troy Davis' death sentence be commuted and, in view of the abundant evidence which might lead to such commutation, for the relevant courts to grant him a retrial… Calls on … to raise the issue as a matter of urgency with the US authorities… Instructs its President to forward this resolution to the… Government of the United States, the Georgia State Board of Pardons and Paroles, and the Attorney General of Georgia.
Why?This issue should have been considered resolved when, in 1936 the U.S. Supreme Court came down solidly against the use of coerced confessions, in
Brown v. Mississippi.
In that case, the Supreme Court began its ruling by describing the crux of the case:
The question in this case is whether convictions which rest solely upon confessions shown to have been extorted by officers of the State by brutality and violence are consistent with the due process of law required by the Fourteenth Amendment of the Constitution of the United States.
In a unanimous decision,
the court ruled that the due process clause of our 14th Amendment was indeed violated in this case by the use of what appeared to be a coerced confession, and the conviction of the defendant by a lower court was reversed.
But what interest do law enforcement officials have in coercing confessions? Psychologists Carol Tavris and Elliot Aronson discuss the psychology behind police use of coercive methods to obtain confessions in their book, “
Mistakes were made (But not by me) – Why we Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts”. And they explain how the legal blurs into the illegal:
Doing whatever it takes to convict leads to ignoring or discounting evidence that would require officers to change their minds about a suspect. In extreme cases, it can tempt individual officers and even entire departments to cross the line from legal to illegal actions. The… Los Angeles Police Department set up an anti-gang unit in which dozens of officers were eventually charged with making false arrests, giving perjured testimony, and framing innocent people; nearly one hundred convictions hat had been attained using these illegal methods were eventually overturned…
Corrupt officers like these… are led down the (slippery) slope of the pyramid by the culture of the police department and by their own loyalty to its goals… Once officers believe that lying is defensible and even an essential aspect of the job… dissonant feelings of hypocrisy no longer arise. The officer learns to rationalize lying as a moral act… Thus, his self-concept as a decent, moral person is not substantially compromised….
The most common justification for lying and planting evidence is that the end justifies the means… Another said, “If we’re going to catch these guys, fuck the Constitution”. When one officer was arrested on charges of perjury, he asked in disbelief, “What’s wrong with that? They’re guilty”…
The problem is that once they have decided on a likely suspect, they don’t think it’s possible that he or she is innocent. And then they behave in ways to confirm that initial judgment, justifying the techniques they use in the belief that only guilty people will be vulnerable to them.
This is not just about one manThe message I received from Ben Jealous, President of the NAACP, says in part:
Why did it take the American justice system so long to act? After years of heartbreak and disappointment, Troy Davis is finally getting a chance to have evidence heard in his case after being denied a fair trial since he was arrested almost two decades ago.
As Jealous says as he asks us to consider signing a
petition:
Troy Davis may just be one man, but his situation represents an injustice experienced by thousands. And suffering this kind of injustice, by even one man, is one person too many.
Amnesty International also provides a
petition that reads in part:
This case has generated widespread attention because everyone in Georgia and throughout the United States is disturbed by the thought of an innocent man being executed. Nothing can undermine public faith in a criminal justice system faster than an execution when there are still serious doubts about guilt. Georgia cannot afford to make such a mistake, and we urge Georgia officials to do everything in their power to prevent such an injustice from taking place.
This is not just about one man. This is an issue that goes to the heart of our system of justice and our sense of fairness as a nation.
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