Saturday, September 24, 2011

Murderer Executed Unjustly? Lies Persist.

Recently, we were treated to breathless "news" reports about the pending execution of convicted murderer Troy Anthony Davis. After multiple appeals, including a last-minute unsuccessful appeal to the US Supreme Court, the State of Georgia was finally allowed to perform its duty and sent Davis off to his final reward with a lethal injection.

Death penalty opponents and far too many news reporters used the argument that Davis was convicted and sentenced to death based solely on eyewitness testimony that later proved to be faulty. Any lawyer will tell you that eyewitness testimony is notoriously unreliable, and counting on that and the public's ignorance of the actual facts of the case, Davis supporters created and then perpetuated a complete lie. First, he was not convicted solely on faulty eyewitness testimony. Second, the revisions, recantations and contradictions of the eyewitneses on which Davis supporters rely were neither substantial nor timely, let alone credible.

Let me establish before proceeding that this is not a discussion of the rightness or wrongness of the death penalty. I personally support the death penalty, and believe the circumstances which trigger capital punishment should be expanded rather than contracted. But as the DA played by Sam Waterston who supported the death penalty on Law and Order said: "One can believe in the death penalty without being sanguine about it." Moreover, I disagree with, but have great respect for those who argue against the death penalty on deep moral or religious grounds. But that has very little to do with the Troy Davis case.

Davis supporters say that seven of the nine civilian witnesses who testified that they saw Troy Davis cold-bloodedly shoot and kill police officer Mark MacPhail have recanted or modified their eyewitness testimony. This is largely untrue, and where it is true, it is misleading and generally irrelevant. In fact, none of the "recanting" eyewitnesses actually rejected their testimony concerning MacPhail's murder. Instead, those who say that they "didn't say that" at the time of the investigation are claiming that the investigating police officers typed up their statements and interviews and presented them to the eyewitnesses for signature. In a murder case, we're supposed to believe that eyewitnesses didn't read the statements they signed.

Even if that were true, they must have read the statements some time, since they testified to exactly the same facts and identification at trial and in front of the jury. The eyewitnesses were neither actors memorizing lines, nor were they trained professional witnesses. Yet each testified in open court to what they had seen, and with no hint of memorization, what they testified to was absolutely consistent with their written statements.If they had doubts, why didn't they express them much earlier, since the trial occurred two years after the statements were signed and further interviews conducted? They were specifically asked by the prosecutor at trial if they had read their statements and if they were accurate, and in each case the answer was "yes."

The "recantations" began concurrently with the filing of the first appeal and after pressure from defense counsel, starting nearly three years after the conviction by a jury of his peers. We must now believe that the eyewitnesses didn't know what they were saying during the investigation, two years later at trial, and for three years thereafter until the defense/appellate attorneys and the anti-capital punishment advocates got hold of them.

Having discussed the seven non-police witnesses "recanting" their testimony, what about the remaining two? Well, they both stick adamantly to their original statements and testimony. One of the two (a man named Coles) was rewarded for this by being accused by the defense attorneys of being the actual murderer. MacPhail was shot in the face and the stomach from in front. All the eyewitnesses, including those allegedly recanting, testified that Coles was standing behind MacPhail when the shooting took place. None of them have changed their version of that testimony.

So unless Coles borrowed the magic bullet from the Kennedy assassination, it would have been impossible for Coles to have shot officer MacPhail. Coles was a known associate of Davis's, and possibly a partner-in-crime with him. But unless Coles was also capable of being in two places at the same time, all testimony, including the "recantations" place him where he could not possibly have shot MacPhail.

Coles initially fled from the crime scene on foot, but as soon as the police arrived, he quickly returned to give officers his version of what happened. This included his seeing Davis shoot officer MacPhail, which was, and still is, consistent with the statements and testimony of the other eight eyewitnesses. If he was protecting himself from prosecution for murder, it's a bit more than coincidental that eight other people also said Coles was behind the police officer, on the spot, in the heat of the moment, and without any coaching or threats from Coles. Eyewitness identity testimony becomes more reliable when multiple eyewitnesses tell nearly identical versions of the incident and when several personally knew the accused murderer from a time prior to the murder.

All of the appellate courts, including the Supreme Court, ultimately held that the prosecution had acted properly, the witnesses were reliable, and the jury acted properly by determining that Davis was guilty beyond a reasonable doubt. Whether one agrees or not, the legal and constitutional issues were litigated at length, and Davis lost.

Now you're saying to yourself, "but that still indicates that there was no physical evidence of Davis's guilt." Not correct. There was no physical evidence that the trial jury saw. But there was plenty of conclusive evidence that they didn't see. The over-used and dubious "exclusionary rule" came into effect prior to trial. All the damning hard physical evidence that proved Davis's guilt was excluded from the trial, and the jury never heard it. Police officers allegedly did not obtain the proper search warrants before seizing the physical evidence which conclusively tied Davis to the murder and as the murderer.

Coles's testimony becomes more believable when you know that Davis went to Coles's house after the murder, and exchanged his bloody shirt before fleeing to Atlanta. Davis also left behind a gun he had used to shoot another man earlier on the day of the MacPhail murder. Ballistics tests absolutely confirmed that the bullets removed from officer MacPhail and the victim of the earlier shooting matched each other, and came from Davis's gun, which the officers had seized. But the police did not obtain search warrants for either the gun or the bloody shirt (clear blood-spatter evidence) before seizing them, so the jury never saw or heard about them.

One can argue that the jury reached its verdict improperly on mere eyewitness testimony, and that therefore his execution was unjustified. The Supreme Court and the Georgia Pardons and Parole Board found otherwise (multiple times), but opinions can still come down on either side. However, anyone who continues to advocate that Davis was innocent is either delusional or simply lying to support a cause. Even if one argues that the law was violated or the Constitution misinterpreted, it is morally irresponsible and factually insane to continue to argue that Davis was not a murderer. A murderer whom I believe received both his legal punishment and his just reward.

There is one further pro-Davis argument that is easily dismissed: Davis was tried and convicted by a jury that was consistent with Georgia's alleged white prejudices against black defendants. Well, the jury was comprised of seven whites and five blacks. This fact is also bolstered by the other fact that the race-baiters don't want you to know. The large majority of convicts on Georgia's death row are white males, and the only female convict on death row is also white. Quod erat demonstrandum.


AndrewPrice said...

I find it amazing that every single person about to be put to death is innocent, had a biased jury, blah blah blah. I agree that there is a good deal of bias in the system, but not by the time these people are put to death. By that time, dozens of judges, lawyers and governors have looked at their cases and found it wanting.

(P.S. You got an answer at the film site.)

LawHawkRFD said...

Andrew: You and I know that there have been both excesses and mistakes in the past. There will probably be more at the jury level in the future. The Innocence Project has exposed some of these because of the advancements in DNA evidence. But they've pretty much exhausted that pool, and future cases than can be disproved by DNA evidence will be balanced by those that can be proved by DNA evidence. But like all do-gooder organizations, it will soon outlive its usefulness and tie up the courts with ridiculous cases in order to perpetuate itself and its anti-death penalty agenda.

If ever there was a case which proves that it's nearly impossible to execute the clearly-guilty, it's Mumia abu-Jamal's. The Mumia proponents long ago ran out of evidentiary and constitutional arguments, but he's still alive and thumbing his nose at the system. The only thing keeping him alive now are the bleeding-heart emotional arguments of the far left, the race-baiters, the hysterical death penalty opponents, and a sappy judiciary. These are largely the same people behind the Davis nonsense, but he wasn't as good an icon as Mumia and he was in Georgia, not Pennsylvania. The situations were nearly identical, the proof nearly identical, and the juries largely the same. Mumia is in a liberal judicial state, and Davis was not. That was probably the deciding factor as to why Mumia is still spitting in the face of Justice, and Davis has been defeated by Justice, permanently.

AndrewPrice said...

Lawhawk, That's the problem with these kinds of groups. They often start with a clear and justified mission, but once they've achieved most of their goals, they begin looking further and further afield to justify their existence and soon they are advocating really outlandish things.

LawHawkRFD said...

Andrew: On the racial front, the perfect example is the NAACP. Once a highly-respected and brave organization, its compelling message played a major part in black advancement and the Civil Rights movement. Having achieved nearly all their goals de jure by 1965, and de facto at least two decades ago, they now find racism under every rock and in every word spoken by anyone who is either white or what they consider an Uncle Tom.

Incidentally, the NAACP attempted (unsuccessfully, if I remember correctly) to file an amicus brief in the Davis case, alleging (guess what) institutional racism.

Joel Farnham said...


I am glad another murderer is not being housed and fed by my tax dollars.

LawHawkRFD said...

Joel: I'm with you. And since the death penalty opponents always argue that capital punishment is too expensive, we could save a lot of money be executing them in less than twenty or thirty years. A healthy inmate can eat a lot of food, watch a lot of HBO, and use a lot of toilet paper during the nearly-endless appeals. And that doesn't include the legal expenses of appeals, re-trials and other legal maneuvers.

JG said...

Thanks so much for this breakdown, LawHawk. I've been looking for a comprehensive analysis on the facts of the case to pass along to others.

StanH said...

Great overview Lawhawk. In my opinion good riddance, this animal got his, as did that POS in Texas that dragged that man to his death, oh by the way he was white.

Good news from Florida, Herman Cain won the straw poll big.

LawHawkRFD said...

JG: Glad to have been of service. Do remember that when you discuss this with death penalty opponents, they will tell you that the hard evidence was properly excluded, so the jury didn't know about it and relied solely on unreliable eyewitness testimony. It is true the hard evidence was excluded, but as to his actual guilt, it's irrelevant. The search warrant issue was a very close one (exigent circumstances vs. time to get a warrant), and the judge chose to exclude it. He might have gone the other way, but that's where the ball lies.

But eyewitness testimony alone is sufficient once the basic elements of the crime have been established (there was a murder and there was a murderer). It's faulty eyewitness testimony that is a poor ground for a capital murder conviction, but this testimony was not faulty, and there was so much of it that the jury felt it couldn't find anyone but Davis guilty.

So when it comes to "legal" guilt after the exclusion of the hard evidence, people of good faith can argue that the conviction should have gone the other way. But we know the actual facts, so getting past that the jury found him guilty without the hard evidence, it is impossible to argue that he was innocent once the true facts are known. An innocent man was not executed.

LawHawkRFD said...

Stan: I agree. A guilty man was executed and the public and the family victims have been spared further years of frivolous appeals and social welfare reprieves.

I saw those Florida results. I think the results were heavily influenced by Tea Party activism, and may not reflect the overall Republican view accurately. On the other hand, maybe they do, and more power to him. Cain is an excellent candidate on principle, and at the debate, he did a vastly-improved version of his earlier performances. He's no politician (a definite plus on conservative issues), but he's learning how to stand up well against those candidates who are experienced politicians.

Tennessee Jed said...

Excellent analysis. I had read Ann Coulter's article, which was good, but yours is a much more in depth piece. This kind of reminds me of the famous Philly case. I am with you on the death penalty. There are people of good faith on both sides of the debate, and there are good aruments on both side. At the end of the day, I do believe there are some crimes where no other penalty provides justice. I feel certain justice was served here.

LawHawkRFD said...

Tennessee: When I was younger, I leaned toward opposition to the death penalty. Three decades of practicing criminal defense law changed my point of view. I now believe that certain crimes strike so deeply at the fabric of society that the only remedy is to remove the offender entirely from the humane and decent society he or she refused to join.

BTW: I've said before that Ann Coulter is the only lawyer I'd ever consider marrying. LOL

T-Rav said...

As the saying goes, good riddance to bad rubbish.

I'm not familiar with all the details of the case, mainly because I haven't taken the time to look them up, but it seems to me that what people keep forgetting is that there's a difference between doubt per se and "reasonable" doubt. If the law enforcement system was dependent on a 100% absence of doubt, no one could ever be convicted of anything. If court after court has decided that the doubts do not add up to "reasonable," that's good enough for me.

LawHawkRFD said...

T-Rav: It is so true that reasonable doubt has been elevated in the mind of the public to zero doubt. That will never happen, no matter how strong the evidence. The charge used to be to find the defendant guilty "beyond a reasonable doubt and to a moral certainty." With the increase in the "sickness" concept over the "evil" concept, and ever-deteriorating moral codes, the second part of the charge has been removed from the jury instructions in some states. After all, who are we to define reasonable doubt by turning to our archaic and individual moral consciences?

One legal publication half-jokingly said an instruction the jury could understand and not fret over is "you better be pretty damned sure."

Another problem on appeal and in new trials is that CSI-type DNA evidence has become so mythical that juries and even some judges think that without 100% accurate DNA evidence, a murder defendant should never be convicted. That's insane.

In lengthy appeals such as Davis's, DNA tests were nearly unheard of at the time of the original trial. In the Davis case, DNA would probably have confirmed that the blood on Davis's discarded shirt was that of officer MacPhail. The blood samples were preserved, but not contemplating future developments in DNA testing, the sample that were preserved were too small and too degraded to provide a match to officer MacPhail. Rather than simply accept that fact, Davis boosters claimed that that alone proved that Davis was innocent. By that standard, no murders in all of history could ever have been proven beyond a reasonable doubt before reliable and routine DNA sampling became the norm in the early 80s.

JG said...

I will say, being from Oklahoma, I don't put a lot of stock in the "but the DNA evidence!" argument. You are probably familiar with the case, but about 15 years ago (I believe) it came to light that a woman working for the state crime lab (or whatever it's called, sorry, no coffee yet) was found to have fabricated the DNA results of something like two dozen murder cases, leading to false convictions. It could also be because I never got into CSI :) But the idea that the crux of a prosecutor's argument must include iron-clad DNA evidence or else there's "reasonable doubt" doesn't wash with me.

And I agree, it seems that to many people, "reasonable doubt" now includes the possibility that aliens may have been involved.

Incidentally, the woman above - who had no formal scientific or medical or criminal justice training - never faced a single charge. She lost her job, but I wouldn't be surprised if she was still collecting benefits.

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