Wednesday, September 21, 2011

Eyewitnesses and guilt

My apologies for this sparse post; I'm battling a stupid migraine again. Hope to be better by tomorrow.

But I couldn't avoid putting this up
AP) JACKSON, Ga. — Troy Davis, the condemned inmate who convinced hundreds of thousands of people but not the justice system of his innocence, filed an eleventh-hour plea Wednesday asking the U.S. Supreme Court to stop Georgia authorities from executing him for the murder of an off-duty police officer.

His execution had been set to begin at 7 p.m., but Georgia prison officials were still waiting for the high court's decision nearly two hours later. [...]

Though Davis' attorneys say seven of nine key witnesses against him have disputed all or parts of their testimony, state and federal judges have repeatedly ruled against granting him a new trial. As the court losses piled up Wednesday, his offer to take a polygraph test was rejected and the pardons board refused to give him one more hearing. [...]

He was convicted in 1991 of killing MacPhail, who was working as a security guard at the time. MacPhail rushed to the aid of a homeless man who prosecutors said Davis was bashing with a handgun after asking him for a beer. Prosecutors said Davis had a smirk on his face as he shot the officer to death in a Burger King parking lot in Savannah.

No gun was ever found, but prosecutors say shell casings were linked to an earlier shooting for which Davis was convicted.

Witnesses placed Davis at the crime scene and identified him as the shooter, but several of them have recanted their accounts and some jurors have said they've changed their minds about his guilt. Others have claimed a man who was with Davis that night has told people he actually shot the officer.

"Such incredibly flawed eyewitness testimony should never be the basis for an execution," Marsh said. "To execute someone under these circumstances would be unconscionable."
One of the things I learned when reading this book is that lawyers on both sides of a case know quite well that eyewitness testimony, which has the reputation for being the most reliable, is actually often the least reliable sort of testimony there is. Eyewitnesses are rarely natural observers just because few human beings are natural observers; instead, eyewitnesses, like most of us, can be suggestible, distracted, swayed into thinking they saw more than they did, or even capable of being convinced that they saw something just because they heard it, or heard about it, or were otherwise near the scene at the time.

Most of us have seen the video in which viewers are instructed to count the number of times a basketball is passed around--and plenty of us have missed the man in the gorilla suit who shows up during the video. Many of us will be willing to swear that we saw a couple and their children at Mass on a particular Sunday, and be surprised later to learn that only the wife and a few of the children were present, because the husband and the other children were home ill. If you gather a room full of co-workers together and ask one of them to identify all the left-handed people in the room, it's rare that the person selected will be able to do so. Aside from the natural or trained observer, most of us don't focus that closely on what is happening around us.

Here's a test for my Catholic readers: those of you who read New Advent daily, to whom is the site dedicated? I had to look. You can click here and scroll to the bottom of the page to find out.

You would think that trauma would heighten our observational skills, but I think that's only partly true. We will notice some details much more clearly than normal, but other details will escape us altogether. I remember, for instance, having to evacuate a downtown store because a fire alarm was pulled; I remember walking down an escalator which had been stopped on purpose for people to evacuate that way, and trying to see if I could smell smoke (I couldn't). I can't for the life of me remember the name of the store, how old I was at the time, or even (given my family's nomadic habits) what city the store was in!

Mr. Davis may or may not be guilty. But if seven key witnesses have doubts about their testimony, I think that executing him now makes the whole idea of "reasonable doubt" a total mockery, and shows that our justice system is more interested in validating itself than in making sure someone is actually guilty before he is executed.

UPDATE: Davis was executed at 11:08 p.m. Eastern time.


Karen said...

Interesting fact: since Texas enacted a law allowing life sentences without parole, the number of death sentences from Harris County has dropped 70%. Harris County at one point accounted for one third of all death sentences issued in the entire world.

I'm glad the opponents of the death sentence in this case focused on the procedure and not on what a cool guy Davis is. I object to the death penalty because it's a process that can never be made infallible. If we can't be perfect with killing people, we shouldn't do it.

StevenD said...

"There's a reason more than a dozen courts have looked at Davis' case and refused to overturn his death sentence. He is as innocent as every other executed man since at least 1950, which is to say, guilty as hell. "

~Ann Coulter

MacBeth Derham said...

Funny, no one's heart is bleeding over this guy, also executed:

Anonymous said...

Well, if Ann Coulter says so. Jiminy H. Crickets, this country needs a hero.

-- Irenaeus

Patrick said...

"Prosecutors said Davis had a smirk on his face as he shot the officer to death in a Burger King parking lot in Savannah."

I'm not sure his facial expression makes a difference.

You know what's "funny"? Ann Coulter has a JD from University of Michigan Law School; which means she knows quite well that the reviewing courts were reviewing procedural/evidentiary matters, not, obviously, the jury's verdict. Just about everyone in America, lawyer or not, knows that the jury is the fact finder.

Which means - sit down for this - she just lied to have a good line.

MightyMighty said...

Patrick, your accusation doesn't make any sense. Ann Coulter didn't lie about the courts not overturning his sentence. If he had been given a bad trial, they would have granted him a new one. I'm not disputing that she is prone to hyperbole and inflammatory statements. But she's not lying when she points out that his case has been more than reviewed and found fair.

Also, there were 34 witnesses against Davis, not 9. Of the alleged 7 recanters, only two were actually recanting (and to quote Coulter's article, "Only two of the seven alleged "recantations" (out of 34 witnesses) actually recanted anything of value -- and those two affidavits were discounted by the court because Davis refused to allow the affiants to testify at the post-trial evidentiary hearing, even though one was seated right outside the courtroom, waiting to appear. The court specifically warned Davis that his refusal to call his only two genuinely recanting witnesses would make their affidavits worthless. But Davis still refused to call them -- suggesting, as the court said, that their lawyer-drafted affidavits would not have held up under cross-examination.")

The other five were making slight changes to their testimony. Many of these witnesses were the same race as Davis, and some were his friends. This isn't a case where people go and string up the nearest black for the latest black-on-white crime.

The gun wasn't recovered, but the shell casings at the killing of the cop matched the shell casings from the shooting Davis committed earlier that night, again in front of excellent witnesses.

This man was guilty. Whether or not we use the death penalty is a different topic.

Patrick said...

@ MightyMighty: "But she's not lying when she points out that his case has been more than reviewed and found fair."

Did you read the quote? She didn't say: "There's a reason more than a dozen courts have looked at Davis' case and refused to overturn his death sentence. It's because they've found no procedural/evidentiary flaws."

The quote was: "There's a reason more than a dozen courts have looked at Davis' case and refused to overturn his death sentence. He is as innocent as every other executed man since at least 1950, which is to say, guilty as hell. "

Which means either she thought the reviewing courts were charged with second-guessing the jury verdict, or she...ahem...LIED about what reviewing courts do. Considering she's got a JD from University of Michigan, well...I'll bet she knows reviewing courts aren't re-examining evidence.

Patrick said...

With that, I retire from the Internet. Bye bye everybody: especially old Siarlys Jenkins - you are easily my favorite heretic. Haha.

Siarlys Jenkins said...

Hi Patrick. You handled this one well, and I have little to add. MightyMighty expresses the common misunderstanding (among those who do not have a JD) that "If he had been given a bad trial, they would have granted him a new one." It ain't so. Justice Scalia, who has his better days, has been known to remark that if a defendant received a fair trial by every technical standard established by law, and was convicted, s/he may legally be executed even if incontrovertible evidence of innocence later comes to light. He meant, of course, that state courts MAY overturn the conviction or sentence, but there is no federal constitutional right not to be executed, merely because one is innocent!

I've received some emails from a group working to overturn the death sentence. I've also read some news articles. There is a good chance Davis was guilty. It appears he was clearly identified as the man who committed a vicious assault earlier. But, the sparse evidence strongly suggests that keeping him in prison would be the more prudent choice, rather than killing him. He may be a man who committed a vicious assault but was falsely linked to a murder.

As for Ann Coulter, if she told me it was raining, even if I was standing next to a window, I would step outside to check on it. The ideological ax she grinds is evident in the statement that "every other executed man since at least 1950" is guilty. We know that's not true.

Geoff G. said...

MacBeth Derham is right to bring up the execution of Lawrence Russell Brewer.

It's easy to oppose the death penalty in cases where there seem to be serious grounds for disputing the verdict in the case. It's much harder to argue against a case like Brewer's. But it needs to be done.

It's worth reciting the facts of the case here because if anyone deserves the death penalty, it's Brewer. An avowed white supremacist, Brewer picked up James Byrd Jr. with two of his friends (they offered Byrd a ride), drove him to a remote part of the countryside, savagely beat him then dragged him for miles behind their pickup truck using a chain. Byrd was conscious through the entire ordeal, until his arm was ripped from his body and his head removed as he smashed into a culvert. After dumping what remained of Byrd's corpse outside a cemetary, Brewer and his friends went and celebrated with a barbeque. As recently as the day before his execution, Brewer was unrepentent, saying "As far as any regrets, no, I have no regrets. No, I'd do it all over again, to tell you the truth."

These are the cases we have to argue against. Because what he did was unreservedly, unquestionably evil. Because in the 20 years since he did it, he has shown no inclination whatsoever to repent nor given any sign that he ever would. And whatever we say about society being just as much safer if Brewer is locked up for life or executed, there is a deep, visceral satisfaction in seeing that kind of man put to death.

Forgiving a man like Brewer and granting him clemency of any sort, even the clemency of living out his days in a penitentiary, is a hard, hard thing to done. I see the argument that repaying evil with evil is not the right thing to do. But I can see the other side of the argument through this case.

If we are ever to get rid of the death penalty completely, it won't be enough to bring up the cases where there's some doubt. That's an argument for reform, not an end to the practice altogether. Ending the death penalty will require confronting cases like Brewer's head on.

Red Cardigan said...

Name calling is not allowed here, Steven. Just a reminder.

MightyMighty said...

I think that Catholics should stand against the death penalty, aside from cases where the criminal cannot be kept from killing again (someone who repeatedly offends in prison, war zone with no option of a secure prison, etc.).

I really liked Geoff's point that we should not be arguing the easy cases (not that I agree that Troy Davis makes the system look bad), but the hard ones.

On a related note, it is so hard to imagine sitting in prison for a horrible crime like Brewer's, and the day before dying, have no repentance. Either he's an atheist, or arrogant enough to think that God would agree with him.

Siarlys Jenkins said...

Sad to say, many Christians are arrogant enough to agree that God would agree with them. The Ku Klux Klan still claims to be standing up for "White Christian America." The religion of choice for the Aryan Nations is "Church of Jesus Christ, Christian." Now what God will have to say to Brewer is another matter. I sure hope Brewer has an unpleasant surprise waiting for him on the other side -- not eternal roasting, just finding out how wrong he was about God. I would shudder to contemplate living under the rule of an omnipotent God who DOES approve of what Brewer did.

People pray "God is great, God is good," but did you ever think how lucky we are to get the two in combination? What if God were bad? Could we do anything about it? If he's still omnipotent?