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As Nell mentions in a comment at the prior post, there’s great and surprising news: Troy Davis, who faces the death penalty in Georgia for the murder of a Savannah policeman that he may well not have committed, gets another bite at the apple after all.  The New York Times reported yesterday that the Supreme Court ordered a federal trial court to consider Davis’s case, with a view to “whether new evidence clearly established Mr. Davis’s innocence.”

This site, many others (especially Mick Arran’s), and Amnesty International have all rehearsed the grounds to believe that Davis is innocent — in the colloquial sense — of the crime he was convicted for.  Seven of nine witnesses against him have recanted their testimony, citing police pressure to identify Davis as the killer; one of the other two is a prime alternative suspect; no physical evidence ties Davis to the murder.

What seems to be at issue is whether this amounts to enough to reconsider (let alone overturn) the verdict of a criminal trial.  But what is really at issue is whether Congress can force the judicial branch — in this case, through the 1996 “Antiterrorism and Effective Death Penalty Act” (AEDPA) — to blindly follow its rules in determining that, or instead hold…

• that a claim of innocence is cognizable constitutional claim,
• that the Constitution forbids the execution of an actually innocent person, and
• that habeas relief must be available to an actually innocent person.

…to re-list my own summary of the issues dissenting judge Rosemary Barkett identified in the last hearing of this case.  While overturning a guilty verdict reached via due process is and should be difficult to do, it seems to me ignoring the all but complete collapse of a case should be difficult to do as well — even after a verdict.

To repeat the charge to the district court, the Supreme Court ruling states that “[t]he District Court should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence” (emphases added).

It seems to me this is a more hopeful situation than either Mick Arran or Robert (in another comment at the prior post) suppose it to be.  While the framing of the question would seem to turn the usual presumption of innocence on its head (as Robert notes), it at least doesn’t necessarily change the definition of legal innocence, which remains “guilt not proven beyond a reasonable doubt.”

Read the rest of this entry »

Amnesty International reports:

Today, the 11th Circuit Court of Appeals denied Troy Davis’ petition to file a second habeas petition in Federal district court. The decision is here. The vote of the three-judge panel was 2-1. The Court did extend Davis’ stay of execution for 30 days to give him a chance to file a habeas corpus petition with the US Supreme Court.

Mr. Davis is convicted of murdering a Savannah policeman — but many of the witnesses have recanted, saying they were essentially badgered into identifying Davis from photospreads that that didn’t feature an alternative suspect.  There is no physical evidence linking him to the crime.  For details of the case and — if you’re convinced, as I am, that he’s innocent — a way of contacting the Georgia Board of Paroles, visit Amnesty International here.

The 11th Circuit’s decision was, Judges Dubina and Marcus argued, largely governed by the AEDPA or “Antiterrorism and Effective Death Penalty Act” of 1996.*  As Lyle Denniston of SCOTUSBlog wrote in 2005,

The 1996 law was expressly intended by Congress to sharply curtail the right of state prison inmates, under federal habeas, to challenge their state convictions and sentences. A key section of AEDPA bars a federal court from granting any habeas writ on an issue that was raised in state court, unless the state court decision “was contrary to, or involved an unreasonable application, of clearly established federal law, as determined by the Supreme Court of the United States.”

The law was passed overwhelmingly after the Oklahoma City bombing — establishing a pattern of abusing terrorist attacks for secondary purposes that was to neither Congress’s, the White House’s, the Democrats’, nor the Republicans’ credit.  As the court’s ruling noted,

…a common theme found throughout the congressional debates was the desire to prevent habeas petitioners from having successive “bites at the apple.”  See 141 Cong. Rec. S7803, S7877 (1995) (statement of Sen. Dole) (“By imposing filing deadlines on all death row inmates, and by limiting condemned killers convicted in State or Federal court to one Federal habeas petition — one bite of the apple — these landmark reforms will go a long, long way to streamline the lengthy appeals process . . . .”); 141 Cong. Rec. S16892, S16913 (1995) (statement of Sen. Feinstein) (“[T]his bill provides habeas petitioners with ‘one bite at the apple.’ It assures that no one convicted of a capital crime will be barred from seeking habeas relief in Federal court[.]”); 141 Cong. Rec. S7803, S7809 (1995) (statement of Sen. Kennedy) (“The proposal to limit inmates to one bite at the apple is sound in principle.”); 141 Cong. Rec. S7803, S7832 (1995) (statement of Sen. Biden) (“The vast majority of us . . . want to and have been trying for years to change the old system to limit the time in which a petition can be filed and to limit the number of petitions that can be filed. So essentially you get one bite out of the apple.”).

(Emphases from the world’s greatest deliberative body added.) The two justices also argue that Davis’s claim of innocence is not compelling, but revealingly lead with the notion that witness recantations themselves ‘upset the society’s interest in the finality of convictions.’ They also (unnecessarily by their own arguments, but again quite revealingly) take refuge in arguing that the substance of the recantations is insufficient to establish innocence … when the point ought to be that the constitutional, justice-driven burden ought to remain on establishing guilt — feckless 1996 legislation notwithstanding.

Read the rest of this entry »

Troy Davis faces execution for the murder of Police Officer Mark MacPhail in Georgia, despite a strong claim of innocence. 7 out of 9 witnesses have recanted or contradicted their testimony, no murder weapon was found and no physical evidence links Davis to the crime. The Georgia Board of Pardon and Paroles has voted to deny clemency, yet Governor Perdue can still exercise leadership to ensure that his death sentence is commuted. Please urge him to demonstrate respect for fairness and justice by supporting clemency for Troy Davis.

• Judges differ as Davis seeks new trial (Rankin, Atlanta Jrnl-Cnst)
  “Two jurists question viability of condemned man’s claim; a third takes issue with state….At the close of Tuesday’s hearing, [Judge] Dubina called the appeal “a very difficult case.” He did not indicate when the 11th Circuit would issue a ruling.”
  (tags: deathpenalty troydavis)

I’ve been conflicted about this, but there certainly isn’t much time and I don’t really have any better ideas.

As I’ve written, I believe it’s almost certain from accounts like the one built by Amnesty International USA that Davis didn’t commit the murder of Savannah police officer Mark MacPhail.  Nevertheless, he’s scheduled to be executed for that on Monday, October 27. There is no physical evidence linking Davis to the crime, and the great majority of supposed witnesses have recanted their testimony about what they supposedly saw at the time or claimed to have heard from Mr. Davis.  The seven recanting witnesses cite great police pressure to confirm the story investigating Savannah police officers were sure of; by contrast, one of the two witnesses who haven’t recanted their testimony would be  a prime suspect himself were the case to be reopened.

My friends Mick Arran, eRobin and by now likely others are picking up on an idea by Mark Gisleson to “BOYCOTT COCA COLA” effort because of Troy Davis’s looming execution.   Gisleson explains:

I don’t have the clout to get this thing rolling, but how long do you think Sonny Perdue would remain governor if Coca-Cola was hit with an international boycott?

Let’s do it. Let’s boycott Coca-Cola. If you drink that sugar water crap, you’re better off without it. This is also an excuse to get your kids to stop drinking that piss water.

Now it’s surely true that the state of Georgia will be responsible for Troy Davis’s execution.  I’ve hesitated, however, because it’s also surely true that Coca Cola isn’t really responsible for it, nor does the company benefit from that execution in any way that I can see.  So while it can seem a little ridiculous to care very much about fairness to a multibillion dollar corporation, this would verge on threatening collective punishment in the sadly likely event that Davis’s execution takes place.

There are other things to look at closely at Coca Cola about.  While it seems a stretch to condemn Coca Cola for something one might also hold against, say, Ben and Jerry’s, many of its products can contribute to health problems.  Unlike Ben and Jerry’s, though, Coca Cola may sometimes be marketing its products too aggressively, such as with school soda machines.  More seriously, some argue that the company and its bottlers have benefited from anti-labor violence in South America; while I don’t know enough to have an opinion on its direct involvement in such violence, it does seem clear that they have engaged in union-busting tactics there, though my quick search showed “only” examples from around 2004 and earlier.

But none of this is connected to the Troy Davis case.

On the other hand, Coca Cola may be one of the few organizations in Georgia capable of successfully intervening with Republican governor Sonny Perdue on Davis’s behalf. Will threatening a boycott will convince them to do so?  Will a boycott gather enough force to be noticed?  I don’t know.

But I figure people should be thinking about this, whatever they decide to do.  For my part, I’ll write and ask the company to ask for clemency for Troy Davis, without threatening a boycott for failing to do so.

However, I’ll also take a closer look at Coca Cola generally.  I try not to drink the flagship beverage so much any more — but Coca-Cola makes a lot of stuff, from Minute Maid to Nestea to Fresca to Dr. Pepper’s.  A boycott is thinkable, but it’s a big undertaking — and it might be something to hold in reserve for things Coca Cola really can do something about.

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UPDATE: October 23 is a “Global Day of Action for Troy Davis,”, with vigils in Fort Collins, CO, Hanover, NH, Norfolk, VA, Washington DC, Atlanta, Chicago, London, and Montreal. Meanwhile, my first email to Coca Cola:

Dear Coca Cola,

Please urge Governor Sonny Perdue to commute Troy Davis’s death sentence, set for next Monday, October 27.  It seems clear to me that were Davis put on trial today with the evidence still available, there would be much more than a reasonable doubt that he committed the crime he’s accused of.

Please use your good offices with the governor to ask for mercy and justice for Mr. Davis.

Thank you.

I probably should have said the Georgia Board of Pardon and Paroles as well or instead.

The Jurist Paperchase legal news service has just reported: “The US Supreme Court on Monday rejected a petition to hear a Georgia death row inmate’s appeal, lifting a stay on his execution.” From the Supreme Court order list for October 14, 2008:

08-66
DAVIS, TROY A. V. GEORGIA
The motion of The Innocence Project for leave to file a brief as amicus curiae is granted. The petition for a writ of certiorari is denied.

No physical evidence. Most witnesses have recanted their testimony. One of the two remaining witnesses is a prime suspect himself. The Atlanta Journal Constitution’s Bill Rankin reports:

Larry Cox, executive director of Amnesty International, which has supported Davis’ appeals, condemned the high court’s decision. “It is disgraceful that the highest court in the land could sink so low when doubts surrounding Davis’ guilt are so high,” Cox said. “Faulty eyewitness identification is the leading cause of wrongful convictions and the hallmark of Davis’ case.” Georgia State University law professor Anne Emanuel, who chaired an American Bar Association team that assessed Georgia’s death penalty, also criticized the decision. “I find it shocking and dismaying that our criminal justice system could allow an execution in a case like this, where guilt is seriously in question,” she said.

If Troy Davis had eluded capture until now, he’d almost certainly be found not guilty of the crime he’ll be executed for. The Supreme Court has made itself a participant in the judicial murder of one man today, and of more in the future.

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MORE: Prior Troy Davis posts at this web site; Amnesty International USA Troy Davis web site (“Finality over Fairness”)
UPDATE, 10/14: Andrew Cohen, for CBS: “what is perfectly clear is that Georgia has now created a virtually unassailable bar to criminal defendants whose shaky convictions are later subverted through the discovery of new evidence or the dissolution of the accuracy, reliability and credibility of important trial evidence. After decades of success, subtle and otherwise, the anti-appeal movement has just now reached its crescendo or, depending upon your point of view, its nadir.”

This can’t be happening.  Well, it can, but it shouldn’t be happening.  Troy Davis, a man who’s almost certainly innocent, is about to be executed today, but the New York Times’s Bob Herbert is reporting:

The United States Supreme Court is scheduled to make a decision on whether to hear a last-ditch appeal by Mr. Davis on Sept. 29. That’s six days after the state of Georgia plans to kill him.

As I wrote two weeks ago, Davis’s murder conviction has been cast in doubt by the recantations of many witnesses, who say police pressured them into identifying Davis as the killer of Officer Mark MacPhail of Savannah, Georgia.  One of the two remaining witnesses has reportedly confessed he was the real killer.  But the Georgia State Board of Appeals has already rejected a bid for clemency, unmoved by appeals from the pope, Jimmy Carter, and former FBI director William Sessions’s opinion that a closer look at the case is warranted.

The Georgia board can still change its mind; please urge them to do so here (Amnesty International USA).  Meanwhile, if you’re the praying sort, now’s the time to start.  Troy Davis’s execution is set for 7pm today.

Further reporting: Atlanta Journal Constitution, NPR, Guardian. Updates via Google News search here.

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UPDATE, 5:30pm: CNN reports “The Supreme Court called an emergency session to hear the petition” for a stay of execution.
UPDATE, 5:45pm: WXIA: “Stay Of Execution Granted For Troy Davis.”
UPDATE, 9/25: The best major media rundown I’ve found of the legal status and issues at this point is by Robbie Brown of the New York Times. As others have reported, if the Supreme Court decides not to hear the appeal on Monday, it’s over. The basis of the appeal is what it should be: if new evidence appears to acquit Mr. Davis, is it constitutional to execute him? Brown (links added):

While a footnote in Herrera v. Collins finds fault with Herrera’s claims in that the affidavits potentially exonerating him were not produced under cross-examination(!), Davis’s case may be different in that witness recantations directly undermine the case made against him. Still, the 1993 decision also asserts a “need for finality in capital cases” that doesn’t augur well for Mr. Davis.

No physical evidence. No murder weapon. Another man implicated.

No matter.  The state of Georgia says Troy Davis must die on September 23 for his alleged murder of a Savannah policeman 15 years ago — even though there’s no physical evidence and no murder weapon. And even though all but 3 witnesses (one of whom, Sylvester Coles, is a prime suspect) of an original 15 have recanted their testimony, citing police pressure to finger Davis once Coles implicated him.

With the case against him in tatters, Davis could not be convicted of the crime were a fair retrial held today. But the state of Georgia, United States law, and the United States Supreme Court agree: so what. As Amnesty International USA (AIUSA) wrote in June:

... Davis’ habeas corpus petition was denied by the state court on a technicality — evidence of police coercion was “procedurally defaulted,” that is, not raised earlier, so the court refused to hear it. The Georgia Supreme Court and 11th Circuit Federal Court of Appeals deferred to the state court and rejected Davis’ claims. Today the U.S. Supreme Court refused to hear his case and Davis is now left without any legal recourse; he could be executed within weeks. It is shocking that in more than 12 years of appeals, no court has agreed to hear evidence of police coercion or consider the recanted testimony.

I’ll simply quote Amnesty International USA again regarding the significance of the case:

Amnesty International does not know if Troy Davis is guilty or innocent of the crime for which he is facing execution. As an abolitionist organization, it opposes his death sentence either way. It nevertheless believes that this is one in a long line of cases in the USA that should give even ardent supporters of the death penalty pause for thought. For it provides further evidence of the danger, inherent in the death penalty, of irrevocable error. [...]

The case of Troy Davis is a reminder of the legal hurdles that death row inmates must overcome in the USA in order to obtain remedies in the appeal courts. In this regard, Amnesty International fears that Troy Davis’ avenues for judicial relief have been all but closed off. In particular, he is caught in a trap set by US Congress a decade ago when it withdrew funding from post-conviction defender organizations in 1995 and passed the Anti-terrorism and Effective Death Penalty Act in 1996.

That 1996 law — signed, to his discredit, by President Clinton in the wake of the Oklahoma City bombing — was “expressly intended by Congress to sharply curtail the right of state prison inmates, under federal habeas, to challenge their state convictions and sentences. A key section of AEDPA bars a federal court from granting any habeas writ on an issue that was raised in state court, unless the state court decision ‘was contrary to, or involved an unreasonable application, of clearly established federal law, as determined by the Supreme Court of the United States.’” (Lyle Denniston, SCOTUSBlog, 5/5/05)

The effect on Troy Davis is that procedural roadblocks to reconsidering new evidence (or the collapse of old evidence) will kill him, unless public outcry prompts a commutation of the death sentence by the Georgia State Board of Pardons and Paroles. For what Georgians and non-Georgians can do, visit the AIUSA web site or Troy Davis’s own web site.  A clemency hearing has been scheduled for September 12; faxes and emails to the numbers provided below (again, AIUSA) will at least let the parole board know the whole world is watching.

RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible:
- explaining that you are not seeking to condone the murder of Officer Mark Allen MacPhail, or to downplay the seriousness of the crime or the suffering caused;
- noting that most of the witnesses whose testimony was used against Troy Davis at his trial have since recanted or contradicted their testimony, and that there is new evidence against another suspect in the case;
- noting that three members of the Georgia Supreme Court, including the Chief Justice, dissented against the court’s refusal earlier this year to order a hearing on the post-conviction evidence of innocence;
- noting the large number of wrongful convictions in capital cases in the USA since 1976, and noting that unreliability of witness testimony has been a contributing factor in many of these cases;
- noting that the power of clemency in capital cases exists as a failsafe against irreversible error that the courts have been unable or unwilling to remedy;
- calling on the Board to commute the death sentence of Troy Davis.

APPEALS TO:
State Board of Pardons and Paroles
2 Martin Luther King
Jr. Drive, SE, Suite 458, Balcony Level, East Tower
Atlanta, Georgia 30334-4909
Fax: 1 404 651 8502
Email: Webmaster@pap.state.ga.

But prepare to be deeply ashamed of this country on September 23.  In the long run, there’s only one sure way to prevent executing innocent people — and that’s to abolish the death penalty.

(Via Alternet)

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UPDATE, 6/15: Via comments by Mick and Nell, Ga. pardons board denies Davis clemency (Bluestein, AP). Via Nell, the AIUSA points out that needn’t be the pardon board’s final word, so keep those e-mails, faxes, and follow-up letters going. Also see Mick Arran’s several posts on the Troy Davis case, esp. including his July 16, 2007 post.
EDIT, 6/15: “Only one sure way” link added.

In the early hours of August 15th, 1996, Mauriceo Brown, DeWayne Dillard, Julius Steen and Kenneth Foster stopped outside the house of Michael LaHood. Brown got out of the car, robbed LaHood, and then shot him. To convict Kenneth Foster of capital murder under the law of parties, the prosecution had to prove that there was a conspiracy between him and Brown to rob LaHood, and that Foster should have anticipated that murder might have occurred during the robbery. At the trial Brown testified that there had been no discussion of robbing LaHood before he got out of the car.

Dillard testified at a state appeal that after the shot was heard, Foster had appeared surprised and panicked. Steen signed an affidavit in 2003 stating that, ‘There was no agreement that I am aware of for Brown to commit a robbery at the LaHood residence. I do not believe that Foster and Brown ever agreed to commit a robbery. I don’t think that Foster thought that Brown was going to commit a robbery.’
– Amnesty International press release, 8/24/07

Nevertheless, Kenneth Foster has been sentenced to death under the Texas “law of parties,” said to be one of the broadest of its kind in the United States. Judging by this case, at least, the law is either overly broad or it has been unconstitutionally applied — even under the relaxed standards of the 1987 Tison v. Arizona ruling, which requires that accomplices both have major personal involvement in the crime and display a reckless indifference to human life to be subject to the death penalty.*

I wonder if Texas law actually did the murder victim more harm than good. There had been prior robberies that night by the four men — but Foster had actually asked for the robberies to stop. If Mauriceo Brown knew or suspected this, his murder of LaHood may have re-established his dominance over the group — remember, we’re not discussing particularly sensible people here — instantly and unilaterally converting a waning robbery spree into a capital murder case, and tying his accomplices’ fates to his own.

Whether that was Brown’s motive or not, he’s already been executed. Even if you’re a supporter of the death penalty — full disclosure: I’m not — the question remains: is it right and just that Kenneth Foster also be put to death for this crime? If you feel the answer is “no”, consider adding your name to this petition to Texas Governor Rick Perry. As Amnesty International USA’s Larry Cox puts it, “In essence, Kenneth Foster has been sentenced to death for leaving his crystal ball at home. There is no concrete evidence demonstrating that he could know a murder would be committed.” Like torture, much of the war on drugs, and other misapplications of state power, the death penalty is more of a cancer on society than a cure for what ails it; legislatures and law enforcement are forever tempted to show “toughness” by broadening its scope, whittling away at exceptions, and — all too often — punishing and even executing the innocent as well as the guilty. It’s institutionalized blood lust; the sooner we abolish it, the better.

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* The Tison case was decided by 5-4, with Justice Sandra Day O’Connor writing the majority opinion. In a 5-4 1982 Enmund v. Florida ruling, the Supreme Court enjoined the death penalty for accomplices in cases where the defendant did not himself kill, attempt to kill, or intend to kill.

NOTES: Supreme Court case links to Wikipedia. I learned of the case via an e-mail from Sarah Klemm of MD CASE; she writes there will be a vigil on the Supreme Court steps on Wednesday from 4:30 to 6:00pm, supporting a stay of execution for Kenneth Foster.

UPDATE, 8/30: Good news via KTRE-TV and AP:“Governor Rick Perry says he’ll spare Kenneth Foster from his scheduled execution tonight and commute his sentence to life. In doing so, Perry accepts a recommendation from the Texas Board of Pardons and Paroles, which voted 6-1 today to urge the commutation.” From Governor Perry’s press release:“After carefully considering the facts of this case, along with the recommendations from the Board of Pardons and Paroles, I believe the right and just decision is to commute Foster’s sentence from the death penalty to life imprisonment,” Gov. Perry said. “I am concerned about Texas law that allows capital murder defendants to be tried simultaneously, and it is an issue I think the legislature should examine.” Life is a hell of a long time for this, but maybe there’s the possibility of parole. I’ll be checking the “Save Kenneth Foster” blog for reactions; it documents state, national and world coverage of the case, as well as activism connected with the case.

Wesley Eugene Baker is scheduled to be executed sometime this week by the state of Maryland. There appears to be no reasonable doubt Baker is guilty of shooting Jane Tyson in 1991; he held a gun to her head and shot her for her purse.

Must he die? Should he die? On Friday, the Baltimore Sun’s Jennifer McMenamin reports (“Looking to past to avert execution“):

Baker was rushed to the hospital for his first drug overdose at age 12, the social worker found. By age 14, he was injecting heroin and living with a prostitute twice his age who gave him drugs and needles in exchange for sex. The woman gave birth to Baker’s son when he was 15 years old.

Baker, who was in and out of juvenile facilities for most of his childhood, was convicted for the first time in adult court in 1974, at age 16. He was sentenced to three years for stealing a car, something his mother said he routinely enjoyed.

Baker spent most of the next 16 years behind bars, convicted twice more of unauthorized use of a motor vehicle and, in 1978, of two counts of armed robbery. He got a 15-year sentence.

Reading that, you might say Baker never had much of a chance. Especially when you learn that his mother was 13 when he was born — and his father was her rapist.

So what, many will say. Plenty of people have it tough, and don’t murder anyone. True enough. Yet even today’s conservative Supreme Court considers background to be relevant in capital cases. McMenamin notes:

The U.S. Supreme Court ruled in 2003, in another Baltimore County capital case, that “the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background … may be less culpable than defendants who have no such excuse.”

To me, it’s almost beside the point. Even if you think death is theoretically warranted for a given crime, the penalty carries unacceptable risk, even if you weigh every possible mitigating factor. Sooner or later, innocent people will fall through the (rather wide) cracks of the American legal system. In order to save the innocent, we should spare the guilty from an irreversible penalty.

But stories like Baker’s demonstrate, if you couldn’t already imagine it, that some of us are far more likely — through no fault of their own — to wind up on the shoulders of the highway of life, where it’s pretty easy to skid all the way off. You and I might just as easily had as tough and unrewarding a life as Baker, and been faced with temptations, angers, despairs and no-exit dilemmas we might not have done any better with.

Call Governor Ehrlich today, at 800-811-8336. Ask him to choose life, and spare one. For no reason other than taking a life is too awesome and too final a task for any human to undertake in the fullness of deliberation, justice, and mercy — and know they haven’t erred and never will. Ms. Tyson should not have died, and Baker should be punished for that death with a long, long prison term. But his execution will bring others in its wake, and not all will be deserved.

For more, see Maryland Coalition Against State Executions (CASE). Via the Maryland “lefty” blog The League Reassembled.

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UPDATE, 12/6: The Washington Post reports that Baker was executed by lethal injection last night, and died at 9:18pm.