Generally, it is not my wont to go about airing my views on the socio-legal policies of other nations, but the execution of Troy Davis has left me so saddened and angry that a failure to raise comment on it seemed wholly inappropriate. As I went to bed last night, I hoped against hope that when I awoke today, Mr Davis would still be alive. Instead, the last minute Supreme Court consideration of his case ended up being little more than a cruel stringing-along of a man who must have already felt like he’d been put through months of psychological torture. Mr Davis was pronounced dead at 11.08pm, Jackson time (4.08am here in Ireland and the UK).
Now let me get one thing clear. Yes, Mr Davis – if his claims of innocence were true – did suffer horribly unjustly during his years on death row. However, the friends and family of his alleged victim, Mark MacPhail, also experienced what I can only imagine to be horrific shock, grief and enduring, piercing grief since Mr MacPhail was tragically and disgustingly murdered. In all the commentary that has been doing the rounds on Mr Davis in the last few days, I’ve seen the MacPhail family mentioned really rather infrequently. I feel rather uncomfortable with such omissions. We must not forget their loss, and the changed lives they’ve had to lead thanks to that. I still think that victims are often the forgotten, yet most important, denominator in modern criminal justice, which is a frankly scandalous state of affairs. A young man man lost his life here; a woman lost her son, another her husband, two (then very small) children their father. Do not forget Mark MacPhail. He was an innocent in all this.
The thing is, Troy Davis may well also have been an innocent. I’m not going to pretend to know his background here, but based on the reports I read in the lead-up to the execution, it’s probably safe to say that he wasn’t an absolute angel. His Wikipedia article (which seems well-sourced) states that some people knew him as “Rough as Hell” and that he had problems with attendance at both school and work. On the other hand, some people have described him as “likeable” and as a brother-like figure to children in his neighbourhood. One minor arms offence is listed before the night of Mr McPhail’s murder, suggesting that Mr Davis wasn’t, perhaps, always on the right side of the law. Indeed, so-called evidence in his conviction of the MacPhail killing claims to link ballistics in that case with another shooting attributed to Davis that same night (a dubious claim explored more below).
So was Troy Davis an exemplary citizen? Probably not. But so what? His background, good, bad or both, is not where the burden of proof lies. The burden of proof lies with prosecutors – and they are required to demonstrate beyond reasonable doubt that the evidence they produce against the defendant shows him or her to be the assailant in the crime being tried.
This was not done in the case of Troy Davis, and that is why his execution was such utter folly, worthy of nothing but condemnation.
I’m supposing most people who read this blog already know the circumstances surrounding this case, but lest that not be the case, here are a few points of information (garnered from this succinct but revealing piece in The Grauniad).
- Seven out of nine witnesses at Davis’ trial have modified some or all of their evidence in the years since.
- At least a number of these witnesses were unable to read, so therefore had no idea what kind of witness statements they were signing.
- One of the jurors at Davis’ 1991 trial, Brenda Forrest, stated at the time that he was “definitely guilty”. However, upon learning of the seven witnesses changing their evidence, she has declared that were she trying Davis now, she would have easily found him “not guilty”. She’s not the only juror in the case to have come out in defence of Mr Davis.
- Allegations of police coercion against witnesses have been made.
- There was no forensic nor DNA evidence linking Mr Davis to the crime, and the weapon that murdered Mr MacPhail was never found. There are claims that ballistics reports suggest the gun that killed him was linked with an earlier incident allegedly involving Davis – presumably the bullets and residue in each case were identical – but without definite eye-witness accounts of Davis firing this weapon, and especially given that it has never been found, this apparent ‘proof’ of his involvement seems spurious at best.
- One witness in the case – one of the two that did not change his testimony against Davis – admitted to owning a gun of the same model that was used in the shooting. No big deal in and of itself, you might think – owning guns is a fairly common practice in the USA – however, the man in question has been implicated by nine separate people as a more likely perpetrator in the crime for which Davis was convicted. It is therefore speculated, especially since he was the person that first implicated Davis in the MacPhail killing, that he had Davis ‘set up’ in order to secure his own immunity from prosecution. Indeed, one witness claims to have heard this man confess to the crime.
Although some of these points are circumstantial, the point about the lack of forensic/DNA material in itself speaks volumes. I cannot imagine a trial in the UK without any meaningful physical evidence even coming to court these days, never mind resulting in a conviction – and any that did would, unless new and more definitive evidence for the prosecution arose, likely be overturned on appeal, unlike in Mr Davis’ multitude of cases.
Furthermore, on this side of the pond (and, to be fair, in certain areas across the pond too) there’s a fall-back: although you’d be sentenced to life imprisonment (up to 25 years, depending on the severity and, sadly, notoriety of the case), which isn’t exactly a barrel of laughs, at least you’d be alive. Some argue that they’d rather die than spend their life in a prison cell, and personally I’d be one of them – but, the fact is, incarceration at least allows you to appeal your case. Granted, Troy Davis was on death row for 20 years before his final execution (though he had three dates previous to this, one of which was stayed only 90 minutes or so before its scheduled time) – but his sentence still resulted in the ultimate finality, and although people will do it on his behalf, he can never again proclaim his innocence nor fight to prove it.
I’ve always been against the death penalty for logistical reasons, though in terms of the theory behind it, I used to be much more ambivalent. I remember once frequenting a forum and finding some of the commentary against it to be witheringly trite. “An eye for an eye leaves the whole world blind,” somebody whined. Who was it originally said that? Ghandi or some such? I’d have expected better from him. An eye is only taken if an eye has been already taken. I, for example, have not taken an eye. You most likely haven’t either. Therefore we face no commupence, so how will we – and ergo the whole world – end up blind?
But blithe as the sentiment is, I’ve come to regard the death penalty as a pretty vile method of punishment. As I said, I’ve always opposed it for logistical reasons – those being simply that it is a very, very rare case where it can be 100%, definitively proven that the defendant(s) is (are) guilty. 95%, 99%, 99.9% maybe – but to take away someone’s very life, you have to be certain. Troy Davis’ guilt was one of the most far-from-certain cases I’ve heard of in many, many years.
Two further reasons have brought me to oppose capital punishment. One, in some cases (as noted briefly above) a guilty person would rather die than rot in prison for the rest of his or her natural life. If someone believes so strongly in retribution, why give the perpetrator what they want? More importantly, however, is point two – if the accused really is guilty of killing, what kind of example does the state set when it then kills them? Is that not showing governmental agencies to be falling exactly to their charge’s murderous levels?
Anyway, there are widespread statistics [PDF] demonstrating no causal link between a reduction in crime and the death penalty (in order words, there is no real evidence that it functions as a deterrent). If anything, US states that still use capital punishment have a similar, and even sometimes higher, rate of violent crime. So what the bloody hell does it actually achieve?!
Of further concern is the high rate of ethnic minorities incarcerated on death row. To assume that non-white individuals are inherently more violent or criminal than other ethnicities is repugnantly simple racism. Although I believe that choosing to commit a crime is a personal choice, with which come personal responsibility, if it is really true that racial minorities commit serious crimes more often than whites – a claim that I find extremely dubious at best – then surely we ought to look at the social context in which these crimes occur. Prevention is better than cure, after all. If this is true (and, I’d again re-iterate, I don’t think that it is), is it really about race, or is it more likely to be about deprivation, a lack of unenforced social cohesion and the experience of abject poverty than many non-whites experience in their lives?
Proponents of the death penalty may argue that even if it does not include elements of deterrence (they may try to dispute the statistical evidence for that too), then at least it will bring the friends and family of the accused’s victim(s) some closure. As The Daily Fail (amongst others), in a surprisingly balanced (if too celebrity-laden) article notes, the family of Mark MacPhail feel that justice has been done in executing Troy Davis.
Again, though, there is reasonable doubt as to whether or not Davis was guilty. Even if Mr McPhail’s family truly believe that Davis was the perpetrator of this horrid murder, justice cannot really be served if the wrong person has been executed – beliefs of guilt, even with the best intentions and most understandable motives, cannot count. When it comes to the criminal law, only evidence counts. And that was very thin on the ground in this case. As Davis’ sister put it, “When justice is found for Troy, there will be justice for Officer MacPhail.”
Therein lies the ultimate point. I don’t know if Troy Davis murdered Mark MacPhail or not. I wasn’t there. Only the perpetrator, whoever he was, knows/knew for certain. But executing a potentially innocent man is not ‘justice’, and the crux of this argument is that proof of Mr Davis’ guilt was very, very scant. Ending someone’s life on the basis of “well, yeah, maybe he did it” – and I can’t find much evidence to suggest that it was anything else – is both ethically and legally abhorrent.
As one excellent tweet on the matter commented, “The execution of a guilty man does not make me safe. The…execution of an innocent man [as based on the available evidence] makes me fear for my safety.”
RIP Mark McPhail and Troy Davis. Your friends and family are in my thoughts.
Standard disclaimer: don’t know the MacPhails, don’t know the Davises, not a judge, not a social commentator, not a lawyer, not even an American, all opinions my own, may be misinformed, have tried to give accurate information but do not accept responsibility for any errors I may unintentionally have published, believe in free speech but don’t you dare flame me, just a dumb Irish broad with too much to say so feel free to ignore everything I have ever and will ever say. Cheers.