PULLING THE SWITCH

Posted in Rants on September 22nd, 2011 by Ed

Here are a few things you probably didn't know about Troy Davis' case.

1. After the victim was shot, Davis fled Savannah and went to his mother's house in Atlanta. After getting a tip from an informant, police entered the house without a warrant in an attempt to apprehend Davis. He escaped through a window and eluded the police until a minister convinced him to turn himself in. Police seized several items of Davis' clothing, which they determined (note: unverified) had biological evidence, most likely the blood of the victim. All of the biological evidence was suppressed before trial because police obtained it without a warrant.

2. Because of #1, the state's case against Davis relied almost entirely on witness testimony. Lost in the shuffle is that none of the non-police witnesses against Davis actually identified him as the shooter. The witnesses only stated that whichever of the pair of suspects (Davis and alleged accomplice "Red" Coles) shot at the homeless man was also the one who shot the officer. No one said, yes, that man, Troy Davis, shot the officer.

Stay with me. This gets tricky.

3. Much has been made of the witnesses who recanted. Courts treat recantations with a high degree of skepticism, understandably. At one of his appeals in 2010, two witnesses claimed that Coles had confessed to being the shooter…but because the defense team refused to present Coles for questioning on that point, the judge had no choice but to dismiss it as hearsay. And despite the eyewitnesses who have recanted, many others who identified (or "identified") Davis have not.

4. Davis' attorneys may have made a fatal (literally) error in basing the appeals on a claim of actual innocence. That is a swing-for-the-fences approach to an appeal in a murder trial. By setting the bar as high as possible – in other words, the appellate lawyers had not merely to create doubt but to provide evidence of actual innocence – Davis severely weakened his chances of winning on appeal.

5. In Georgia, an accomplice cannot be given the death penalty. It must be proven beyond any reasonable doubt that the defendant actually committed the murder.

6. Troy Davis would probably have life in prison right now had he appealed for a commutation to a life sentence based on the (seemingly easily defensible, based on the facts of the case) claim that no conclusive evidence exists to prove that he, not Coles, was the assailant. In fact, the evidence that Davis and Coles were even at the scene is based on witnesses, not physical evidence. These two facts combined could have created enough reasonable doubt that Davis was the shooter to persuade an appellate court to commute him to life without parole. Beats lethal injection, I guess. But that's not what the defense team did. They argued actual innocence. No one can be shocked that the appellate courts declined to accept that argument. He may be, or he may not be, but the evidence to prove actual innocence does not appear to be there.

7. At a new trial, because of the new doctrine of "inevitable discovery" adopted since the crime was committed in 1989, whatever biological evidence the judge suppressed in the initial trial would likely be admissible this time. Perhaps the defense team's risky actual innocence strategy was based on knowledge of that physical evidence, probably that it would place Davis at the scene. That would not help his claim of innocence at all. Sp proving actual innocence in the appeals process seemed like the better shot. But it was still a bad shot.

8. Seven of the jurors who convicted him in 1989 were black.

What does all of this mean?

It means that, as a fervent opponent of capital punishment, Troy Davis isn't the best cause celebre. His legal team chose to risk everything on actual innocence and they appear to have lost. More evidence tends to suggest his guilt than his innocence. But that is the problem with capital punishment, the idea that Good Enough is good enough. Well, we convinced a jury of his guilt, so now let's apply a punishment that can't be reversed if we later realize that a mistake was made.

This case is not the best example of the kind of Innocent Man on Death Row scenario that capital punishment opponents like to publicize. It is a great example, however, of how the process of determining guilt simply does not allow us to be as certain as we would need to be to apply an irreversible sentence. The limited ballistic evidence is disputed by opposing experts. Some witnesses have recanted. Other witnesses failed to definitively identify Davis as the shooter with certainty. I don't expect that the legal system will release people back into society at the slightest doubt of their guilt. But with the death penalty, the slightest doubt should be enough. Irrespective of the choice of legal tactics on the part of his defense, the simple fact remains: If there is any doubt, you can't pull that switch.

The degree to which we as a society and political system are callous about this issue is sickening. To hear people who know nothing about the case loudly cheering on the state's efforts to kill him is almost as disturbing as listening to suburban tough guys rattle off the list of countries on which we should drop lots of bombs. The death penalty is merely a tool for elected officials to win the trust of that kind of voter. Politicians love the death penalty, because it is just about the only way to make a bunch of old, fat, candy-assed white guys sound tough. More frustrating than any doubts or arguments about Davis' guilt or role in the shooting is the sad reality that he is a game to these people, a topic to spout off about at the water cooler or on the campaign trail to prove that one is a tough guy who Means Business and ain't about to coddle no murderer. The Davis fiasco, like all high profile death penalty cases, is breathtaking in the extent to which we disregard the fact that a man's life is at stake.