Troy Davis, Capital Punishment, and the Battle between Law and Justice

I am a long-standing and proud supporter of Amnesty International, but there’s one of that organization’s core tenets that I can’t completely support: their unequivocal opposition to the death penalty. Don’t get me wrong. Just because I live in Texas and my name is Rick doesn’t mean I break into a Pavlovian slobber at the thought of breaking out the electric chair. But there are those of our species whom, to be frank, we’d be better off without. To qualify for this dubious designation, however, one would have to meet two specific and independent criteria: the crime(s) one committed must have been so depraved and/or egregious as to transcend the merely felonious, and there must be absolutely no doubt about one’s guilt.

Troy Davis, whose execution by lethal injection by the state of Georgia is imminent and now probably inevitable, fails to qualify on either count. His conviction 20 years ago was for the 1989 killing of off-duty police officer Mark MacPhail by shooting him in the face in what has been described as a brawl in a Burger King parking lot. That’s certainly not something one brags about on a résumé, but it was a single event, the cop was off duty, there was no particular malice shown, and no suggestion of anything like torture.

More importantly, there’s a reasonable chance that Davis didn’t do it. There is no physical evidence, the gun has never been found, and seven of the nine non-police witnesses who testified against Davis have subsequently not merely recanted their testimony but alleged that they were coerced into perjurous statements by a police force more interested in solving a case than in whether it was solved correctly. Indeed, multiple sources now point the finger at another witness against Davis, Sylvester “Red” Coles.

Time for skepticism. If you, Gentle Reader, believe that Georgia cops wouldn’t go out of their way to convict and indeed execute a black man for being in the wrong place at the wrong time, you’re probably too gullible to be reading this blog. On the other hand, if you think that no guilty defendant has ever rallied cause-obsessed lefties to follow an utterly mendacious claim, you’re definitely too trusting. Ultimately, while I am sure the various powers that be think they’ve really proved Davis’s guilt, even in the light of post-trial revelations, I’m persuaded by the skepticism of the likes of William S. Sessions and Bob Barr, neither of them exactly bleeding hearted liberals.

I do not contend that Davis is necessarily innocent, or even that there’s enough evidence to overturn his conviction, but if we’re going to execute a man for a particular crime, it would be a really good idea if we were more than pretty sure he was guilty. Here’s Sessions, who sums up my argument rather well:

What the hearing demonstrated most conclusively was that the evidence in this case—consisting almost entirely of conflicting stories, testimonies and statements—is inadequate to the task of convincingly establishing either Davis’ guilt or his innocence. Without DNA or other forms of physical or scientific evidence that can be objectively measured and tested, it is possible that doubts about guilt in this case will never be resolved.

However, when it comes to the sentence of death, there should be no room for doubt. I believe there is no more serious crime than the murder of a law enforcement officer who was putting his or her life on the line to protect innocent bystanders. However, justice is not done for Officer Mark Allen MacPhail Sr. if the wrong man is punished.

The case is particularly noteworthy not merely for itself, however. First, there are the comments at the recent Republican debate by Governor Rick Perry, the current front-runner for the GOP nomination. Responding to a question by Brian Williams about whether he ever worried about killing an innocent man among the 234 executions he authorized, Perry crowed,“I’ve never struggled with that at all.” Ultimately, that tells us all we need to know, especially since there have been a couple very controversial cases, e.g., Cameron Todd Willingham, convicted and sentenced to death for murdering his three daughters, although a). he quite possibly didn’t do it, at least in the way alleged by prosecutors and b). Perry shut down an investigation that might well have proved that, prior to Willingham’s execution.

Still, Governor Perry’s amoral braggadocio pales in comparison to the mind-boggling jitbaggery that is Supreme Court Justice Antonin Scalia. When the Davis case percolated up to the SCOTUS a couple of years ago, Scalia proclaimed, in dissenting with a decision to order a federal court in Georgia to examine the evidence, that “actual innocence” (his quotation marks) is insufficient to overturn a conviction: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

A zillion years ago, I was in a production of a rather bad (who am I kidding? very bad) play called The Downstairs Dragon. The play is set in a small-town museum, and there’s a dragon in the basement. I played a gray-bearded (I needed makeup then) member of some learned society—the Society for the Encouragement of Wisdom in America, or something like that. Rather than opening the trap door and seeing the beast, however, we all debated whether or not a dragon could exist: one of us argued psychologically, another sociologically, another zoologically. I was the religious zealot. Anyway, we all decided that there couldn’t possibly be a dragon there. It was a little difficult to finished our debate, of course, because we had to shout to be heard over the roaring of the dragon.

Scalia’s position strikes me as about as intellectually coherent. The Constitution doesn’t forbid the execution of an innocent man? I’m no lawyer, but killing someone for something he didn’t do smacks of cruel and unusual punishment to me. This is the same Antonin Scalia, of course, who argues that corporations are people, based on… well, damned if I know. (Best snarky political line I’ve seen in a while: I’ll believe corporations are people when Texas executes one.)

More to the point, I really don’t care if the Court has never prohibited the execution of the innocent. It bloody well should have. Prior to 1954, that same court had never had a problem with “separate but equal.” No one whose surname isn’t Paul is sad that the SCOTUS overturned Plessy v. Ferguson. If Mr. Davis could have proved his innocence (not merely “reasonable doubt,” or even the “preponderance of the evidence,” but demonstrated his actual innocence), Scalia would still have cheerily allowed the execution to continue, caring more about his idiosyncratic reading of the Constitution than about the obviously just decision. I’m beginning to think Sonia Sotomayor’s “empathy” is not a bad thing at all. As a reader of the Curmudgeon Central Facebook page put it, “There are a surprising number of people in high, influential positions in this country who would greatly benefit from being punched really hard right in the fucking face. I'm pretty sure that's constitutional too.” I’m not sure that would knock the supercilious smirk off Scalia’s face, or even get his attention, but I’m willing to try.

And so… I’m still not entirely convinced that there isn’t a place for the death penalty in carefully delineated circumstances. But the Troy Davis case weakens my resolve. Unlike Justice Scalia, I’d rather not cling to legal niceties if the result is, or even very well might be, the state-sanctioned murder of a non-murderer.