Q: What do you call it when a person kills another person, with full intent and premeditation?
A: Murder.
Q: What do you call it when the government kills an innocent man, with full intent and premeditation?
A: Read the diary to find out.
This, among other reasons, is why I oppose the death penalty on principle.
The pending execution of Troy Anthony Davis, scheduled to take place on July 17, is raising serious questions about his guilt — and about the Newt Gingrich-era federal law that has limited his appeals options and prevented him, say his supporters, from getting a fair shake.
Davis, 38, a former coach in the Savannah Police Athletic League who had signed up for the Marines, was convicted in the 1989 murder of Mark Allen MacPhail, a Savannah, Ga., police officer. MacPhail was off-duty when he was shot dead in a Savannah parking lot while responding to an assault. Davis was at the scene of the crime, and an acquaintance who was there with him accused Davis of being the shooter. Since his conviction in 1991, Davis has seen each of his state and federal appeals fail. But in the court of public opinion, Davis presents a compelling argument. Seven of the nine main witnesses whose testimony led to his conviction have since recanted. The murder weapon has never been found, and there is no physical evidence linking the crime to Davis, who has asserted his innocence throughout.
I don't know if Davis is truly innocent or not; I tend to suspect he is. But whether he is or isn't, how can we call this justice? He was accused of the murder by the man who other witnesses claim confessed to having actually committed the crime after Davis was convicted. But those witnesses' testimony cannot be heard in the Georgia courts, having been dismissed as "inadmissible hearsay." Two of the jurors now say that if they knew at the time of the trial what they know now, not only would they not have voted for the death penalty, but they wouldn't have even voted to convict Davis. The only actual evidence against Davis is the testimony of the nine witnesses that led to his conviction, but as the excerpt above shows, seven of them have since recanted or contradicted their testimony. Further, research shows that erroneous eyewitness identification leads to more wrongful convictions than any other factor in the American criminal justice system, so absent any evidence other than the testimony of witnesses, the majority of whom have since recanted or contradicted themselves, how can it be just to put Troy Davis to death?
Clearly part of the problem here is the Antiterrorism and Effective Death Penalty Act of 1996, which, among other things, severely restricted the ability of individuals sentenced to death to appeal their sentences. Among the restrictions, condemned prisoners have one year to file a writ of habeas corpus, no more. Further, federal judges have far less leeway in determining whether trial courts correctly interpreted the Constitution in all trial matters. In other words, all those procedural legal protections the appeals courts are supposed to enforce when the trial court screws up? Automatically? Even for people who can't afford a dream team of defense lawyers? Yeah, they're not really so applicable anymore. The Supreme Court has interpreted the AEDPA very narrowly, deferring to the "wisdom" of the legislative branch, with little regard to the wholesale trampling of the allegedly constitutionally guaranteed due process rights of affected prisoners -- no big surprise there. The AEDPA, by the way, was one of Newt Gingrich's favorite pieces of legislation. He lobbied hard for it, arguing frequently that "justice delayed is justice denied." And that's true -- but injustice accelerated is also injustice perpetuated.
And Davis is hardly a unique case. Since the Gregg v. Georgia decision that reinstituted the death penalty in the United States in 1976 after a short moratorium, 1087 prisoners have been put to death. I have little doubt that the vast majority of them were guilty of the crimes for which they were sentenced to death, but "the vast majority" isn't good enough. Since 1976, 118 prisoners who had been sentenced to death have been exonerated. Even if we assume that all 1087 executed prisoners were guilty, that means that only 90.2% of the people sentenced to death in the United States since the Gregg decision were actually guilty of the crimes for which they were to be killed. What do you call it in the other 9.8% of cases, when the government killed innocent people, with full intent and premeditation?
And we can't assume that all 1087 executed prisoners were guilty. We can't assume it because it's almost certainly not true.
- Carlos DeLuna was executed in 1989 for the fatal stabbing of a convenience store clerk in 1983. But it turns out someone else almost certainly committed the crime.
- Ruben Cantu was executed in 1993 for the murder of a man in San Antonio during an armed robbery. But it turns out that the key witness against him, another victim of the robbery, was pressured by police to identify Cantu as the murderer and has since insisted that Cantu was innocent. The Bexar County District Attorney, by the way, has nothing substantive to say about the DA's office's handling of the case other than that those who say Cantu was innocent are all lying.
- Larry Griffin was executed in 1995 for the murder of a man in Missouri during a drive-by shooting. But the only witness at trial to the murder was of questionable credibility, the first police officer on the scene said he was a liar, and there was a second witness injured in the attack who did not know Griffin and stated with absolute certainty that Griffin was not involved.
- Joseph O'Dell was executed in 1997 for the rape and murder of a Virginia woman. But despite the availability of potentially exculpatory DNA evidence and little to no actual physical evidence to tie O'Dell to the crime, the federal appeals courts refused to allow DNA testing and upheld the death sentence. (Full disclosure: the author of the linked article married O'Dell.)
- David Spence was executed in 1997 for the murder of three teenagers in Texas in 1982. But there was no evidence to connect Spence to the crime other than the testimony of prison informants who were granted favors in exchange for implicating Spence.
- Leo Jones was executed in 1998 for the murder of a police officer in Jacksonville, Florida. But the main witness against him recanted, the two officers who obtained his confession beat him into confessing, and there were over a dozen witnesses who claimed someone else committed the crime.
- Gary Graham was executed in 2000 for a robbery/murder in Texas in 1981. But the only witness against him allegedly saw him commit the murder from 30-40 feet away through the windshield of her car and only for a few seconds, while two other witnesses who were closer to the murder and got a good look at the killer but were never interviewed said it definitely wasn't Graham.
- Cameron Willingham was executed in 2004 for murdering his three children in a house fire he set in 1991. But the forensics used to prove that the fire was set intentionally have been disproved conclusively, and there is no rational reason to believe that the fire was anything but an ordinary, tragic, accidental house fire.
And there could easily be more to come. Consider the case of Cory Maye. This is a prime example of police screwing up. On December 26, 2001, Maye was asleep in his living room, doing nothing wrong. He was not aware that the neighbor on the other side of his duplex was a drug dealer, or that police had a warrant to search his neighbor's home. Maye had no criminal record, nor any reason to believe that he was wanted by the police. Precisely what happened is unclear, but by my reading of the case and numerous discrepancies in police and court records, the most plausible story is that the police entered Maye's side of the duplex loudly and without knocking -- thanks, USA PATRIOT Act! -- and roused Maye, who believed the intruders were burglars. He ran into his daughter's bedroom to protect her and loaded his legally owned and licensed handgun for self-defense. When he saw an armed man burst into his daughter's bedroom -- a man who apparently didn't identify himself as a police officer -- he shot the intruder three times. One of the bullets missed the officer's bulletproof vest, killing him. That officer, incidentally, was the son of the local police chief. Maye was convicted for his murder and sentenced to death; fortunately, that sentence was overturned in September. But consider this: if an armed man burst into your child's bedroom and didn't identify himself as a police officer, what would you assume? Would you fear for your child's safety, or even his/her life? If you were armed, would you feel that shooting the intruder was self-defense?
And now it is almost certain that another man will be executed on Tuesday by our government for a crime he did not commit.
If Bush could commute the sentence of Scooter Libby, who is undeniably guilty of the crime for which he was convicted, should he not also commute the death sentence of Troy Davis, a man who is very likely innocent of the crime for which he was convicted and sentenced to die? Wouldn't that be the right thing to do in the interests of justice? Is it not undeniably "cruel and unusual punishment" to execute an innocent?
Hell, even William Rehnquist, a big fan of the death penalty, wrote in his dissent in Furman v. Georgia, the case that banned the death penalty for a short while in this country prior to Gregg, that the infrequency with which the death penalty is imposed reinforces our moral values, that only imposing it for the most heinous crimes speaks to the quality of our enduring humanity. Is it not excessive, immoral, and heinous, then, to execute someone who not only are we not 100% certain is guilty of the grotesque crime for which he was convicted and sentenced to die, but who is most likely not guilty?
Clearly there are some who don't care. Consider the words of Sen. Jeremiah Denton (R-AL, 1981-1987):
Saying we should not have the death penalty because we may accidentally execute an innocent man is like saying that we should not have automobiles because some innocent people might be accidentally killed in them. Or we should not have trucking or we should not have aircraft, or we should not have elevators because we are going to have accidents.
There are going to be some mistakes committed. The question is, on balance, which way do we better promote the general welfare?
-- Source: The Death Penalty: An American History, by Stuart Banner, p. 304
I can't even begin to list all the things wrong with that sentiment, so I'm not even going to try to do so here. The point is this: someone has to stand up for the innocent folks who may be executed for crimes they did not commit. Contact your congresscritter and your senators. Contact the White House. Write a letter to the editor. Do something to try to help save Troy Davis' life. Do it because he doesn't deserve to die for a crime he most likely didn't commit. Do it because it's the right thing to do. Do it because your sense of fundamental justice and fairness demands it. Do it because the government is going to kill Troy Davis in your name.
Do it because you don't like the answer to the second question I posed at the beginning of this diary:
Q: What do you call it when the government kills an innocent man, with full intent and premeditation?
A: Legally, it's an "accident."