PULLING THE SWITCH

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.

Be Sociable, Share!

45 Responses to “PULLING THE SWITCH”

  1. Jordan Says:

    Them arguing for 'actual innocence' – was that in the appeals in Georgia, or the federal appeals?

  2. Jordan Says:

    Yeah ok, forget my previous post. I'm a law student, who has a lot of experience with criminal law / procedure / appeals. Here's what's wrong with your post. Going to the Troy Davis wiki, his lawyers argued for procedural errors in the state appeals, and argued for 'actual innocence' in the federal 'appeals'.

    This has nothing to do with whether or not arguing 'actual innocence' is a good idea. Appealing a state conviction in federal court means you're relying on federal habeas corpus law. The last, say, 20 years have basically restricted federal oversight of state cases almost exclusively to wildly obvious errors in disregard of existing supreme court precedent, or actual innocence. His lawyers weren't arguing 'actual innocence' federally because it was a good argument, but rather because that's the only avenue open. Had they raised the claim you made in federal court, they would have just flat out lost on procedural grounds without it being heard.

  3. J. Dryden Says:

    You can change the verb tense in that last sentence to past. They offed him right on the dot. Charming. Can't wait for the inevitable footage of the pro-execution group outside the prison who cheered at the news. (Do these people hang out at oncology wards during the off-season to keep their chops?)

    I'm enough of a misanthrope to believe that yeah, there are certain people the world is better off without, but I'm also enough of a misanthrope to believe that trusting human beings to correctly identify those who fit this category is staggeringly misguided. Evil exists and it should be prevented and punished, but the inevitability of eventual corruption and error is so inescapable that the death penalty is morally compromised from the get-go. I loves me some eye-for-an-eye old-school, but feel-good payback is for the movies. Real life demands recognition of our own boundless capacity for incompetence, and the consequent sacrifice of the sating of our blood-lust. It sucks, but the alternative is much, much worse.

  4. Gandalf Says:

    I'm enough of a misanthrope to believe that yeah, there are certain people the world is better off without

    Many who live deserve death. Some who die deserve life. Can you give it to them? Then do not be too quick to deal out death in judgement, for even the very wise cannot see all ends.

  5. tough Says:

    Yes gosh. Death penalty is a screwy thing. Here is an interesting link on countries around the world and the death penalty. http://www.infoplease.com/ipa/A0777460.html

    Not all of the countries were its permitted are like Somalia, China, or Afghanistan. I saw Singapore & Cuba on the list. But then again as we all know all the other "modern western" countries have abolished it as inhumane. Like Gandalf says in front of me, I wouldn't feel comfortable judging who should live and who should die… but it is what it is I guess.

  6. megamahan Says:

    Great post. Also, kudos to J. Dryden who I'm pretty sure sure is correct about the state vs. federal court point.

  7. MarkC123 Says:

    Pivoting somewhat, I see an opportunity for Ed to advance his career a bit here. Don't laugh, but I think a post like this (up to the death-penalty moralizing part, anyway) could find a bit of common ground with Fox News. I don't mean this in a bad way, either; when you have a left-contrarian view like this, with additional incriminating info I suspect the Fox dunces never even knew about let alone broadcast, they would eat that up. Before he was executed of course, you could conceivably have proffered your thoughts to them and see if they'd put you on air.

    Some might find that akin to selling out, but i don't see why it would be distasteful to use their airwaves to essentially repeat what you say on your blog. And in this starfucker culture of ours, having some TV airtime can't hurt your job prospects, right?

  8. Rosalux Says:

    The death penalty is barbaric. No man "deserves" to die – that's a moral claim, dispute it if you like. Practically speaking, punitive justice serves no valuable social purpose and is a waste of money.

    The vast majority of executions in the world are committed by five countries: Iran, China, Pakistan, Saudi Arabia, and…The USA. We're in the company of some of the worst human rights abusers in the world. It's time for it to end, period.

  9. Mike Says:

    But isn't it still a problem that he might very possibly be guilty! is the standard for executing someone?

  10. Nunya Bidness Says:

    I write this as a young man steeped in the love of Ronald Reagan, born as the son of a military officer turned police officer. IN essence, I was the wet dream child of most conservatives. I grew up thinking that poor people were poor because they were lazy and that all people that were arrested by the police were guilty… maybe not of this particular crime but something else. Above all, I believed that capital punishment was fucking awesome and should be extended.

    To make a long story short, a well intentioned high school sociology teacher actually introduced me to the principles of a rational discussion and forced me to weigh this absolute truth that capital punishment was necessary against the actual evidence. Changing that opinion that I held above all others is, to this day, the most mind altering moment of my life.

    The logic behind the death penalty is simple. If a person is dead, he can commit no crimes. Absolutely sound. What it omits is what happens if you kill the wrong person. To that, there is no answer. An innocent person is dead and there is no responsible party.

    I am still not a coddler of criminals but I do see a path of redemption as the core of our judicial system and I also recognize the possibility of errors in our judicial system, especially given the most minimal of representation given to the poor.

    In short, throw them in prison but leave the option open for people who screw up, are corrupt, or just had a bad day. A nation that is comfortable with killing a citizen without absolute proof (an impossible feat) is a nation in love with its own blooodlust.

    This man may very well be guilty but the fact remains that while the famiy of the slain officer awaits final justice, they have spend well over a decade just waiting to move on with their lives. Whether or not he did it, the victim's family is stuck in limbo and may have the very real possibility of having the life of an innocent man on their conscience forever.

  11. Nunya Bidness Says:

    @ Jordan – your quote "I'm a law student, who has a lot of experience with criminal law / procedure / appeals."

    Let's take a look at that statement. You do not have a lot of experience. You sat through a class or two, read some stuff, maybe wrote a paper but you know fuck all from actual experience.

    I can't wait until you experience the humiliation of your first real case.

    Seriously. The pain you (and your unfortunate client) will feel will wipe the smug clear off of your naaive face.

    Yours in law!

  12. Middle Seaman Says:

    Indeed. this an excellent post. If anything I would expand on the "[p]oliticians 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." It's actually much worse. We are a country with a deep current of "it's 1850." Many Muslim countries are at the same place. ("The vast majority of executions in the world are committed by five countries: Iran, China, Pakistan, Saudi Arabia, and…The USA.")

    The death penalty enthusiasts are also against the safety net, oppose the ideas of global warming and evolution and mostly live in the Bible, i.e. Koran, belt.

    It also has to do with 1850 justice. Georgia is deep into pre-Civil War mentality as are Scalia, Alito, Thomas and Roberts. Down right moral corruption is in the open to spite us all.

  13. Jeff C. Says:

    @ Nunya – Clinics and externships are actually available to students at the end of the first year of law school. This means that they get real experience with real clients and real cases. It's entirely possible, then, that Jordan has a fair bit of experience under his belt. For that matter, though, so what if he's only read books or taken graduate level courses? Does reading not count as knowledge now? You also don't make any substantive point, rather, you just attack his credentials without addressing his argument at all. Is there an actual issue with Jordan's assessment that you can help clarify?

  14. buckyblue Says:

    Ironically, the guy who dragged James Byrd to death in Texas a decade ago was also executed yesterday. I didn't feel any compunction to defend him. In fact, I feel as if he got off light. Felt the same way when John Wayne Gacy was executed. My argument against the DP is the same as Ed. It's the need for perfection that stops me. Our justice system has to be right every damn time. And we all know, that ain't gonna happen. Can I live with John Wayne Gacy and the Texas guy not getting a little justice in exchange for a more just system for all. Yeah, but just barely.

  15. comrade x Says:

    Decades od brainwashing by corporate media hasn't helped a rational discussion of the death penalty. How many cop shows have revolved around the plot that the defendant is always guilty even when proven innocent?

  16. Arslan Says:

    "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."

    Thank you for this. I hate these people, and I used to hate seeing their worthless spawn milling around shopping centers in their Hot Topic gear. Fuck every one of these wannabe jerkoffs.

  17. c u n d gulag Says:

    Great post.
    I'm sure the death penaly makes a lot of people feel good. And it's not just the Old Testament School Vengeful "Pro-Life" Christians, it's people of all colors, stripes and sexes. There's an element of "Well, he/she deserved it." An eye for an eye…

    My problem is that we, as a society, should have higher expectations of ourselves. That, if we don't want individuals to kill, then it's hypocritical of us, as a society, to then kill that killer. We need to set an example. No killing, should mean 'NO KILLING!" Period. The state should set the example.
    This way, the issue of guilt or innocence, while ciritical, doesn't become a literal matter of life and death. There are recourses if evidence was tampered with, witnesses lied, the defense was incompetent, or the DA's office played games, beyond sending someone out to put "Oops! Sorry about that…" on the grave.

    And yes, as I look at America as it currently is, I realize that there is no chance of stopping the death penalty. On CNN's site they had a poll and people voted FOR the death penalty. 63-37%. We have become a vengeful and mean-spirited country. Or, maybe we just remained that way as the rest of the world evolved and got more civilized..
    We should be ashamed. But so many of our citizens can't feel shame. There is no place for shame in vengeance. It might make you less vengeful. And that wouldn't be American. After all, after Rick Perry was cheered for executing over 200 people, one of whom was pretty cleary innocent, to defend his actions someone said, "It takes guts to execute someone innocent." And it takes a soulless troglodyte to feel that way.
    The 'morans' have been winning over the last 3 decades, and, unfortunately, I don't see an end to that anytime soon.

  18. Marc Says:

    Thanks for digging, Ed. I won't comment on capitol punishment but all of the news reporting on this case for the past few weeks has failed to mention any of the facts you bring up, other than "there is no physical evidence linking Troy Davis with the crime."

  19. Nick Says:

    I'm actually in favor of the death penalty, in extremely limited application. I do, however, believe that the evidence introduced when the death penalty is sought needs to be thoroughly incontrovertible: security camera footage of the defendant murdering the victim, DNA matching, etc. Applying the same standard of proof for the death penalty as we do for a simple burglary is ridiculous.

  20. Hazy Davy Says:

    [Fawning praise and admiration for Ed.]

  21. Brandon Says:

    I kind of agree with Nick. My thoughts on the death penalty are admittedly somewhat incoherent and muddled and have changed at various points in my life. But I do feel that there are some crimes for which the death penalty is warranted. Killing children and multiple homicides would be the main examples that come to mind. And honestly, my support for capital punishment in these cases derives from my atheism. I don't believe in a deity that impartially metes out justice, or a heaven and a hell that good and bad people respectively go to after death. This life, however short and pathetic it may be, is all that there is, and intentionally killing somebody deprives them of the only possibility of an existence that the universe provides. That said, Ed and many of the commentors are right on the nose that the death penalty is so irreversible that its application requires incontrovertible proof of guilt. Excellent post.

    @ Nunya – Your attack on Jordan seems unwarranted and petty and sticks out in an otherwise civil and intelligent discussion. He made an easily falsifiable claim, so if you feel it's wrong, explain why rather than attacking his credentials.

  22. HoosierPoli Says:

    Why is it always the "small-government" assholes who trust the justice system to correctly identify and execute the perpetrator in every case without exception, and seem to tolerate the government murdering innocent people as a cost of doing business, and yet if the OSHA man comes to their shitstain trucking office and tells them they need to keep the fire exits unlocked, that's an affront against LIBERTY?

  23. Ty Says:

    "Yeah but Ty what if he killed YOUR kid." Is what the people at work would say if they werent scared to talk to me. And you know what? I would want him dead. Not just dead but brought before me and slowly defleshed. You know what else, I would also like to kill people who don't use their turn signals. Thats why my emotions are not the basis for our legal system.

  24. Michael Says:

    Sigh. This blog post is tendentious. No, there was no "biological evidence" on any of Davis' clothing. The "informant" was the likely shooter, Redd Coles.

    Here's what happened (all supported by the evidence available):

    Redd Coles argued with a homeless man, then went a got a gun and came back to teach that guy a lesson. During the second altercation, an off-duty cop intervened and got shot. Redd fled. Cops had no idea about anything. About 24 hours later, Redd went to the cops and told them Troy Davis did it.

    The cops, dealing with a cop-killer, put the full court press on him. They stormed his house, hoping he would fight back so he could be killed. That didn't happen. Cops found zero evidence – ZERO – linking Davis to the crime. Uh-oh, they said – we don't have a case. Cops put Davis in with some other inmates, then took those inmates aside and told them that if they would testify that Davis had confessed to them – don't all prisoners immediately confess their crimes to other prisoners? – that those inmates would be set free. This occurred. Cops also rounded up some other usual suspects, walked them through what the story should be, and "encouraged" them to testify.

    To recap: zero physical evidence that Davis did the crime, and zero witnesses except for ones that were threatened by the police.

    During and after the case was tried, three witnesses (without police pressure on them) have sworn affidavits that Redd Coles confessed to the shooting. None of their testimony has been allowed into evidence.

  25. Elder Futhark Says:

    Jordan,

    Okay, almost-a-lawyer. One thing you should learn right fucking now is that guilt or innocence is logically distinct from conviction/acquittal. Get that inside your head. Living with bloodthirsty little animals for the past 10,000 years will convince a person that the "cruel and unusual" language is one of the best fucking punchlines I have ever heard.

    Also, look to the person to the left of you. Now the right. Within the next 20 years, both of them will try to rape, kill and eat you.

  26. markg Says:

    I think this sums it up better than anything else I've seen.

    http://i.imgur.com/W2F4S.png

  27. xynzee Says:

    @Hoosier: I am soooo stealing that! Gold! Pure Gold!

    @Nick: However, about 30yrs ago, I'd be with you on the video with the smoking gun.

    Have you looked at CCTV footage? It's not the nice clean quality stuff you see on your HDTV where you can read the date on penny in some extra's hand as they pay a cashier some where in the background. It's as grainy as…
    Try this. Download some image off the interwebs, a very small image. Open it in Photoshop and resave it as a JPEG at "smallest" file size. Open it again, ram a bit of grain/blur (but not to much). Resave it at smallest file size. Repeat the open resave about five to ten times. Then print it out at letter size. That's about the image quality most CCTV collects image data at. Yeah you can make out something, but the details are more than a little furry.

    Now given that one is working with a poor image to begin with lets's extrapolate. I've already given a key ingredient to where I'm going with this by mentioning P'Shop. That's pro-quality tools that are available to *everyone*. The hardware to drive it to an acceptable level is no longer beyond the reach of the average punter too. The software/hardware for highend video editing is also at the average punters finger tips too. Hell my laptop can do this easily, we no longer need a dedicate Hal/Henry system to do so. YouTube has kids demonstrating how AfterEffects works, imagine someone who can pay someone to produce a passable vide?

    Therefore anyone can take already poor quality video, and edit it passably for the average jury. That you show them video of someone who looks something like the perp, and that person goes to the chair. It's coming to a point where unless you A) *really* know what to look for or B) are able to see metadata of the footage — image and video data have a memory, but you need the right tools to see it — you'll believe what you're seeing. The secret is to look for the shadows, highlights and light angles. Yes a picture speaks a 1000 words, but if you're smart you'll crop it just right so that it says the words you want it to say.

    But you're definitely spot on about the burden of proof required being the same as petty theft *is* ridiculous.

  28. KellyD Says:

    Very interesting. I know this may seem pedantic, but did his attorneys appeal based on actual innocence, or file a habeas petition based on actual innocence? Huge difference, because actual innocence is one of the bases a person can raise when any other habeas relief is otherwise exhausted or barred. If his attorneys raised actual innocence as a last-ditch effort (and certainly all direct appeals were exhausted long ago and only habeas petitions were still being adjudicated), it may not have been such an error.

  29. Surly Duff Says:

    @buckyblue – "Can I live with John Wayne Gacy and the Texas guy not getting a little justice in exchange for a more just system for all. Yeah, but just barely."

    There should not be a degree of "justice". Justice is eauther reached or it is not reached. The proper question is can I accept that the punishments of Gacy and Brewer would allow them to be incarcerated for the remainder of their lives instead of execution in exchange for a system that does not execute innocent men and women. I, for one, emphatically answer yes.

  30. bb in GA Says:

    I note again…

    The death penalty in the US has become a hideous reverse lottery whose winners' odds go up with melanin percentage and poverty.

    It is as emotional as it is rare (certainly outside of Texas)

    The only state crime in the modern era (post 1976) punishable by death is connected to homicide.

    We have had approximately 500,000 homicides since 1976 and we have executed about 1250 people in that period. We currently have about 3200 people on death row. We are executing between 25 and 50 people per year.

    Suppose that the murders are evenly distributed throughout the country (manifestly not true) so that the 37 states with the penalty have had approximately 375000 (actually higher) of the murders.

    Further suppose that 10% of the homicides are "worthy" of the death penalty.

    That would be about 37000 murders that should be matched w/ an execution. We have executed

    1250/37000 = 0.034 = 3.4%

    Texas accounts for about 1/3 of the total so in the other 36 states, the penalty is applied in a little over 2% of the cases.

    And that is using 10% of the homicides as death penalty material.

    Actually the death penalty is way more than 97% gone…

    //bb

  31. PhoenixRising Says:

    "How many cop shows have revolved around the plot that the defendant is always guilty even when proven innocent?"

    Not as many as the ones that rely on complex, advanced forensics, or DNA. to prove guilt.

    My prosecutor friend is getting out of the business. Says she's had one too many juries acquit based on the lack of DNA evidence–in a damn assault case–which is just a bit more expensive to gather than folks seem to think based on TV. Most crime investigations don't include much in the way of physical evidence period.

    Ed's review of the possibility that there may have been physical evidence in this case, which was unusable because the cops f'ed up, is the only place I've seen that claim. In a smart society, that would be an argument for cleaning up police procedure, because we can't punish the criminal if you exclude the only solid evidence….

  32. Ben Says:

    Jordan is correctly stating the law. The federal courts set the bar extremely high for appeals that are based on factual error rather than technical violations – an actual innocence appeal isn't a "swing for the fences" approach, it's the only option Davis had in federal court.

    Additionally, it is entirely incorrect that Inevitable Discovery doctrine would have allowed in evidence that resulted from the warrantless search. ID is effectively an extension of Independent Source doctrine, and is determined looking at the world at the moment of the illegal search. The fact that the police may have had cause to get a warrant at the time does not make that evidence available, because they had not acquired a warrant and were not even in the process of acquiring one. If that was the case, then ID would entirely destroy the warrant requirement, which it does not – I can cite cases if you like.

    Also, ID was first adopted in 1984 – it was already in place at the time of the crime.

    You're getting bad legal advice somewhere.

  33. Nunya Bidness Says:

    To to overly sensitive defenders of a 2L i submit that my anger had little to do with the substance of his argument (although there were flaws) but rather with the comment that he has "a lot of experience."

    I know the audience for this blog skews young but I can only have contempt for a student who has never experienced professional life or the failures associated with it who claims that he has it all figured out.

    As I watch more and more coddled millennials enter the working world with their absolutely insane sense of entitlement, I just can't help but do my best to give you the first, but certainly not last, smack of reality.

    To Jordan: The correct description would heave been "I have some knowledge of" or "I have some exposure to" the subject. You do not have a lot of experience but, of course, you will discover that as you actually obtain some.

  34. deep cap Says:

    Nunya Bidness:

    It's ok. Jordan is an arrogant prick.

    His whole argument was based on what he found on the Wiki, so what does it matter that he's a law student? He only mentioned it to brag and give himself false credentials.

    So yes, he's an arrogant prick and your assessment was correct.

  35. Ben Says:

    From my own experience as a law student (which, I suppose, is as extensive as anyone's experience as such could be), being a law student is hardly something worth bragging about.

  36. Chris Says:

    @ Nunya: got an ax to grind? I thought I was reading a good debate about the death penalty, but, apparently, I'm watching some liquored up guy at a bar trying to pick a fight with the guy that "looked at him funny".

  37. Nunya Bidness Says:

    @ Chris : http://funpics.classicfun.ws/var/albums/Funpics/Tank%20Catapult%20-%20Because%20Fuck%20You.jpg?m=1270642048

    Sorry about your vaginal affliction.

    Thanks god there's no draft.

  38. The Fiona Says:

    Nunya stated, "To to overly sensitive defenders of a 2L i submit that my anger had little to do with the substance of his argument (although there were flaws)…"

    I am still waiting for you to address these flaws (in the substance of the argument).

    Nunya=Douche

  39. Jordan Says:

    First of all, lol.

    Secondly, the specific things that were argued in his state or federal appeals were taken from wikipedia, not the applicable law I mentioned above.

    Third, the law is correct. A couple of people above agreed. There's a lot of cases on point – read Williams v Taylor, 529 US 362 (2000). (Punch the citation into google scholar). The fact that you have to argue for either a clear, obvious procedural error or factual innocence has been the standard in habeas cases for a while – all the cases do is hash out the details of an annoyingly vague statute. Seriously, this point of law in habeas cases is as set in stone and clearly established as the idea that running someone over with your car will make you liable to them in tort law.

    Four, experience does matter. Experience can tell you what a jury is most receptive to, give you familiarity with areas of law, or let you piece together esoteric dicta to come up with novel arguments.

    But when it comes to pure points of law which you can do research on, and which are explicitly set in stone by a number of cases, it's irrelevant. If you can't come up with the above law, as a lawyer doing the relevant research, you either went to a law school which neglected to teach you basic skills or you somehow failed to retain them. If you're not a lawyer / law student, then you shouldn't have been commenting on an area you clearly had no knowledge of. I'm sorry if you think you need experience to an extremely basic conclusion.

    Finally, I said I had a lot of experience -as a law student-. Reading comprehension is key. You sound irrationally angry at younger people for some reason. We're paying for your social security and medicare which probably won't be around by the time we retire, so really if anything, you should be thankful that we're supporting you.

  40. Scott Lemieux Says:

    I don't understand your point about inevitable discovery. Nix v. Williams was handed down in 1984. If there was a serious inevitable discovery claim, they could have gotten the evidence admitted in 1989.

    The more likely reason for an "actual innocence" claim is that based on existing "habeas reform" statutes and precedents anything other than an actual innocence claim has roughly a 0% chance of success. Davis is not, I agree, clearly innocent, but the problem his case exposes is that there's no effective remedy for death row inmates who are neither guilty nor innocent beyond a reasonable doubt.

  41. John Melling Says:

    I enjoyed the commentary immensely until it was highjacked by the overly sensitive among use. I don't know how else to state this but you people are a bunch of feckless pussies. I read Nunya's responses and, while it wasn't substantive, it was essentially accurate.

    To the recent graduate: People older than you are going to control every aspect of your life for the next 20+ years. Despite them,you know, being all old and uncool, LOL, and stuff, they will continue to have power over how your work, live and breathe until they decide to retire.

    Jordan, I don't know what to say other than to point out the obvious fact that you are a punk. I mean this in the most demeaning, non-cool way possible. You aren't cool, hip or even witty. You are a young law student who is convinced that he has earned the right to speak out on things that he has only the slightest knowledge of.

    Whatever happens in your life, you will be at the mercy of your elders until they decide that they are ready to retire. As for your comments on supporting us, just be thankful if you can still fid an associate job that we decide not to outsource to India.

    Your arrogance will be your downfall, young pup.

  42. Lit3Bolt Says:

    The death penalty is part of the Daddy State(tm) which is the good state that is Tough and Fights Wars and Provides Bailouts and Tax Breaks. Therefore, we won't see it go away until the boomers die out.

  43. Chris Says:

    @ John: we'll see how tough you are in diapers or the graveyard. Thanks for helping flush America down the toilet, by the way.

  44. Q Says:

    @Nunya & Melling,

    You two sure did draw a lot of assumptions from 2 innocuous posts by Jordan. All this moaning and complaining about the younguns just makes you out to be a couple of bitter and cranky old has-beens who had to walk uphill both ways in the snow. What happened? Did some young, ambitious pup fresh out of college/grad school take your job at a lower salary?

    Well, as far as making much ado about nothing, two can play the same game. Let me guess. You guys are from the baby boomer generation? If so, then you have no ground to stand on when it comes to accusing people of being entitled. But you certainly are right in one regard about youngsters being under the thumb of their elders for the next 20 years. The younger generation has to clean up the mess made by baby boomers who really managed to frak things up. Our current leaders include quite a few boomers since as you pointed out, old people are in charge, and I guess you figure your compadres are doing a bang up job! You guys rode the economic prosperity following WWII to become the entitled and fiscally reckless population beer belly bulge that we see today.

    John, you speak of arrogance, but it is your condescending post about the "feckless pussies" that reeks of the hubris of an old fart who wishes to tear down the youthful confidence of those who face poor employment opportunities thanks to the policies of our boomer leadership.