Last night, just after 11 p.p. EDT, Troy Davis was the victim of a homicide in a prison in Georgia. The difference between him and most victims of homicide is that his death was the result of capital punishment. You see, Troy Davis himself had been convicted of killing an off-duty police officer in 1989. in Savannah, Ga.

His conviction came after a trial in 1991 in which several “witnesses” to the crime, which occurred in a Burger King parking lot testified with certainty that Davis was the person who pulled the trigger killing the cop.

The Police officer who died, Mark MacPhail, was off-duty working a security detail at the Burger King when he intervened in an assault on a man in a neighboring parking lot. He had joined the Savannah force after serving in the army for six years. He was married with a 2 year old daughter and an infant son when he died.

MacPhail’s family and friends are entirely worthy of every sympathy accorded them since the shooting. My following words are in no way meant to diminish or demean or trivialize this loss or claim that Davis in any way was better than MacPhail.

That said, there was no forensic evidence that directly tied Davis to the crime, save for some spent bullet casings at the scene purportedly matching bullets at another shooting for which Davis was also convicted.  CSI;Crime Scene Investigation is still a popular TV show but in no way presents a realistic portrait of forensic science’s part in the criminal justice system.

Again, the case against Davis was built largely on eyewitness testimony. Seven of the nine witnesses  who so testified have since recanted their version of the event. And other evidence presented appears flimsy thus leading some to the conclusion that Davis was innocent.

One commentator, Michael Smerconish, of MSNBC claimed on TV on Wednesday that this recantation is negated by the fact that the testimony was in court and under oath and the witnesses’ statements recanting their original testimony were not. True, but the whole point of Davis’s appeals is to get back into court where those recantations can properly be placed on the record.

Due to quirks in the justice system it has become more difficult for a person convicted of a murder to pursue appeals, even in a case, such as Davis’s, where there is a possibility the convited person is actually not guilty. One such impediment to appeal is the Antiterrorism and Effective Death Penalty Act of 1996, passed by Congress in the aftermath of the Oklahoma City bombing.


That law makes it far more difficult for a convict to use Habeas Corpus, a right guaranteed by the United States Constitution, to get his case reviewed by appellant courts based on claims of innocence or egregious errors in his trial.

Wikipedia’s article capsulizes the arguments for and against this act succinctly.

While the act has several titles and provisions, the majority of criticism stems from the act’s tightening of habeas corpus laws. Those in favor of the bill say that the act prevents those convicted of crimes from “thwart[ing] justice and avoid[ing] just punishment by filing frivolous appeals for years on end, while critics argue that the inability to make multiple appeals increases the risk of an innocent person being killed.

 I have opposed the death penalty for about fifty years, as explained in my post last year DEATH KILLS.

In that piece I refuted some of the common arguments made in favor of capital punishment. I also discussed the case of Cameron Todd Willingham, executed several years ago in Texas for the arson murders of his two pre-school daughters. The problem there is that arson investigators used dated processes or simply made things up .

An investigation by a noted arson specialist after the conviction and while Willingham was on Death Row concluded the deadly fire was accidental, not deliberate. A report to that effect was delivered to the Texas Clemency Board, but political maneuverings thwarted it from being fully examined by the Board or by Governor Rick Perry, and Willingham was given his lethal injection.

It seems that there, as in the present Georgia case, state officials really care more about finality rather than accuracy. As Dahlia Lithwick states it:

One side cares… principally about finality. That’s why supporters of Perry (who claims never to have lost a night’s sleep over an execution) and Supreme Court Justice Antonin Scalia (who wrote in 2009 that “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”) believe that for the process to work, it must eventually end—and that in order to achieve that end, some error is inevitable.

Note that innocence is insufficient cause for a conviction to be overturned and/or a death sentence commuted. In that case I will agree with Mr. Bumble of Dickens’s Oliver Twist that

the law is a [sic] ass

Lithwick posits that with enough cases like Willingham and Davis and the likelihood of the innocent dying, public sentiment will turn against the death penalty and it eventually will be abolished.

If I’m on Death Row I’m not holding my breath awaiting that development.

There is but one way we can ensure that someone wrongfully convicted is not executed and that is to end capital punishment. The United States is the only modern country still employing that method of punishment, and our murder rate still exceeds that of nations who don’t have it.

In the 1990’s the state of Illinois saw the reversal of at least 13 convictions for murder who had been sentenced to death but thankfully were still living. As a result, in January, 2000 then Governor George H. Ryan imposed a moratorium on executions which was still in effect when the Illinois legislature abolished the death penalty there in July of 2011.

There are still about 35 states retaining capital punishment but with only a few using is ona regular basis. It is time they joined civilization and did away with that primitive, ill-considered and too-often haphazardly applied punishment

Whether it is ever established that Troy Davis was truly guilty or not, I want no one else to follow him to that fate. he experienced.


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