Op-Ed: Troy Davis – dead, and dead guilty

Posted Sep 23, 2011 by Alexander Baron
Troy Davis was executed this week in the wake of appeals from not only the usual suspects but a former US President and a serving Pope. His execution may have been questionable, but his guilt was not.
The phrase “miscarriage of justice” is one that is sadly all too familiar even in England, upon whose system of criminal justice that of much of the rest of the world is based, including not only the United States and the English speaking world but India, where according to Professor Quigley, between 1858 and 1947 it established “the rule of law, equality before the law, and a tradition of judicial fairness to replace the older practice of inequality and arbitrary violence”.
Even with the best will in the world – which is not always present – miscarriages of justice will happen. To take just one example, but for DNA, a man named Lewis Sproston may well be serving a life sentence today instead of sicko Mark Dixie. The police who arrested Sproston had what they believed with good reason to be an open and shut case.
Miscarriages of justice have also resulted from cases of mistaken identity. This can easily happen when an individual or even a number of people witness a sudden and especially traumatic incident. This is what the supporters of Troy Davis would have had the world believe, what Davis himself insisted from the beginning to the end, and to those who read the blurb put out by Amnesty International, or who watch their short documentary (available on YouTube in three parts – 123), the arguments sound persuasive. There is though a big problem with these arguments, they are arguments that attempt to try or retry this case in the court of public opinion.
In a court of law there are rules of evidence and procedure; these rules are inadequate, they don’t for example prevent dishonest prosecutors, police officers and others from presenting a suspect to a jury as black as sin, making even an act of kindness sound sinister, twisting the truth, or tearing words out of context, turning a joke or an off the cuff remark into something sinister, even a death threat.
Inadequate though these rules of evidence and procedure may be, they exist, and do offer an accused some protection. In the court of public opinion, there are no rules of procedure, no rules of evidence, no rules period. From the 1960s and before, attempts have been made to retry cases in the court of public opinion, not by unearthing facts that should have been but weren't presented to a jury, but by inventing facts, twisting the truth, even by suborning perjury. Some of these attempts have resulted in campaigns that have gone on for years or even decades; they have been extremely well funded, at times receiving the patronage of the rich and famous. For example, John Lennon supported the campaign to clear James Hanratty, who was as guilty as hell.
The longest running such campaign is arguably that of Stafford & Luvaglio, who murdered Angus Sibbet in January 1967. The two men were paroled after twelve years, and Luvaglio went on to redeem himself to some degree by leading a blameless life from then on, apart from refusing to acknowledge his guilt. Career criminal Dennis Stafford continued to protest his innocence of this crime, and to prey on others.
Other high profile campaigns have been launched for convicted murderers Satpal Ram (who?), Linda Carty, Jeremy Bamber (a sick joke), and the most high profile of all, cop-killer Mumia Abu-Jamal.
Of the above, Abu-Jamal has the most in common with Davis; both murdered police officers (although the latter’s victim was not on duty as a police officer at that time), and both are black. One of the mantras Abu-Jamal’s supporters never tire of parroting is racism in jury selection, whatever that is supposed to mean. Somehow the jury was alleged to have been racially stacked against him because there were only two blacks on it. Even if it had any merit, this claim would not have altered the verdict, such was the weight of evidence against Abu-Jamal. Unfortunately for Davis, seven of the jurors who convicted him and sentenced him to death were black, so there is no scope for playing the race card here.
Before we meet the DA who prosecuted Davis, a few comments are in order about the aforementioned Amnesty International documentary. The first thing that becomes apparent is that this is not only or indeed not primarily a documentary about Troy Davis but a polemic against the death penalty.
According to Amnesty, Davis was convicted primarily on eyewitness testimony. So what?
Amnesty say they have never taken a position on his guilt or innocence, a claim that is difficult to reconcile either with the tone of the video or its content.
The evidence was weak from day one, they say. This claim is simply not true, though it would be undiplomatic to accuse this august organisation of lying. The Innocence Project is brought in, and the claim is made that it has exonerated 273 individuals who were wrongly convicted, and that 75% of those cases relied on identification.
These statistics are undoubtedly true, however, the argument is fallacious. To begin with, the Innocence Project and other, similar organisations operate a screening process; they won’t waste precious time and resources on obviously hopeless cases – unless they have been duped. Furthermore, the solving of many crimes relies entirely on eyewitness identification, but the problems associated with this are diminished considerably when a) there are many witnesses; b) the witnesses are in the presence of or can view the perpetrator for more than a fleeting moment; and c) when the witnesses or some of them know and/or recognise the perpetrator. All three elements were present in the murder of Mark Allen MacPhail.
It took a jury only a few hours to convict, and a few more hours to sentence. So what? How long should it take a jury to decide an open and shut case? Three days? A week? A month?
Since the trial, the case has unravelled. Not.
There are huge questions about the integrity of the original investigation, implying it was corrupt. Again, this is simply not true.
The video claims 6 of 9 witnesses had since recanted; this has now increased to 7. We will deal with this in due course.
Charles Hargrove testified that Sylvester Coles (the man Davis claims murdered MacPhail in the Burger King parking lot) told him he had killed MacPhail in 1996. This is at best hearsay, which subject to a ruling by the court, is not admissible evidence.
Now it is time to meet Spencer Lawton, the District Attorney who prosecuted Davis in 1991. His thirty minute interview with Brenda Wood of 11Alive can currently be found here. He makes the point that Davis had excellent representation, the prosecution was transparent, and the State won the case “on the facts”. Furthermore, the State continued to win the case at every single hearing.
The retired prosecutor said it was his policy that he never discusses a pending case, implying it would have been unethical to do so; he gave this interview in the almost certain knowledge that Davis had only hours to live, certainly he would never have had his conviction overturned, and any sort of pardon or permanent stay of execution looked remote.
Lawton made the point that Judge William T. Moore Junior of the United States District Court, Southern District of Georgia in his review of the case said in his order of August 24, 2010, that Davis had presented an appeal that “is largely smoke and mirrors”.
For those who want to read the truth rather than the propaganda churned out by Amnesty International, Judge Moore’s 172 page ruling can be found here.
The retired DA made the point that the campaign to exonerate Davis really only kicked off with the manufacture of several so-called recantations. They are not recantations, he said, but have been presented to the world as such. The judge found two of them to be unbelievable, another was unbelievable even as to testimony in court, and in two of the cases, they were not made under oath.
He was diplomatic as to how they came about, but suggested that with the passage of time, a witness can be approached by a well versed and articulate person who may convince him that he has made errors in his trial testimony. He did not raise the little issue of perjury here, but the very fact that so many people recant years after a man has been sentenced to death and within a short period ought to make somebody suspicious.
He was not, he said, a fan of the death penalty (indeed this was the first case he had prosecuted that would result in its being carried out – three years after his retirement).
Another point he made is that there was indeed physical evidence that Davis had committed this crime. Something Amnesty very conveniently omitted from their documentary is the inconvenient fact that earlier that same day, Davis had shot and injured a man named Michael Cooper in a completely separate incident. According to Judge Moore, Mr Cooper described his assailant as “a young, tall, African-American male wearing a white batman shirt, a black hat, and shorts”, a description that fitted Davis to a t.
When asked about Sylvester Coles, the man Davis and his supporters claim committed the parking lot murder, the former DA made an interesting point that the people who hold themselves out as beacons of fairness are prepared to indict Sylvester Coles “on far less evidence” than was used to convict Troy Davis, adding “now tell me that’s fair”.
There is no evidence against Sylvester Coles, he said, but Davis had been with Coles at the time, “Who else is he gon’ blame it on, Tinkerbell?”
Coles was brought in by his attorney, who left him to face the police without representation, he was that confident. Another significant fact is that Davis was not known to the police at the time as “a bad guy”.
With regard to the continued cries for the execution to be stayed, he made another important point: “the herd” has questions because of manufactured doubt, which began with these affidavits of recantation “which have been shredded in court” – that creates the appearance of doubt; the criminal justice system should not go back and re-examine a case just because 600,000 people (as it then was) with no familiarity with the case have signed a petition. He turned this on its head and said that if these people were demanding his execution, we wouldn’t pay any attention to them.
What is so significant about this case is that the Supreme Court instructed the District Federal Court to bring in the witnesses so they could be heard “and they didn’t do it”, ie Davis blocked their testimony.
Not every media pundit has fallen for the Troy Davis is innocent scam; the Washington Post correspondent Charles Lane saw through the smoke and mirrors; he also made the point that the authorities should not have sought the death penalty in this case because “Though undeniably senseless and cruel, the murder of Mark MacPhail was an unplanned act against a single victim. As I have argued elsewhere, such offenses do not rank among the special crimes – mass murders, for example, or terrorism – for which the death penalty should be reserved.”
This argument is irrefutable, and would knock the bottom out of the anti-death penalty lobby’s case, indeed, apart from the Pope and the even holier Clive Stafford Smith, few people in the US or anywhere would care to argue against much less to protest against the death penalty if it were reserved for serial killers who had been convicted of heinous crimes on overwhelming evidence, men like Ted Bundy, John Gacy and Fred West.