So, yesterday, I was on an emotional roller coaster because of the Troy Davis story. At 7:00 I hear that the Supreme Court had stayed the execution. By 11:08, the Supreme Court refused to block the decision of the lower court and he was dead.
For those of you who don't know, Troy Davis was a wayward son of Georgia, that was convicted killing Mark MacPhail, a police officer, on the eye witness testimony of 10 witnesses. Most people who took Crim Pro know that eye witness testimony is notoriously unreliable. To make things worse, one of the witnesses was a former suspect in the murder. Seven of the witnesses recanted their testimony claiming that they were pressured by the police to make a faulty id, which is conceivable considering that this was a fallen brother. I'm presuming that his attorney appealed the decision because of the new exculpatory evidence and went on up the line until the Supreme Court, reviewing only procedural error or errors in the applicability of the law, said "too bad."
And this morning I heard the commentary. The talking heads went into how our Supreme Court is different than that of countries like Italy where Foxy Knoxy is receiving a whole new trial because the lower court didn't do it right. Here, we only look to procedure and we give great deference to the jury/judge in their fact finding. The fact-finder is the be all, end all. So, we shouldn't blame the Supreme Court.
Any Higher Court can upset the decision of a lower court if they committed errors of law, fact, and or procedure. Failure to consider exculpatory evidence, even if it's after the conclusion of the trial, is an egregious error. I am sure that a motion was brought before the lower court, the one that convicted Troy Davis, asking the court to reconsider the sentence or the verdict on the basis of subsequent exculpatory evidence. That was an error. It's the same error that has freed hundreds of convicted murders when DNA samples are later tested and determined to NOT be the defendant. This is really no different. Except that the lower court refused to consider the recanting witnesses and the appellate level and the supreme court refused to consider that error as well. Then, finally, the Supreme Court rubber stamped the three or four courts below it when they also rubber stamped the lower court's refusal to consider very important and pertinent information that could have freed Troy. Clearly, Jim Crow still lives in Georgia. This man was convicted and killed without regard to the actual evidence because he was a "bad dude" and his death would be no big loss to the state of Georgia. And many men and women in robes refused to do the right thing.
Relating it back to the Innocence Project, a hypothetical man convicted based on eye witness testimony, direct and circumstantial evidence, propensity to commit a crime and failure to have an alibi, are FREED because DNA proved all of the evidence wrong. One scientific fact disproved all of the other evidence that the jury heard. In Troy's case, he was convicted primarily on (conflicting) eye witness testimony, and 7 of 10 witnesses recant with credible reasons for perjuring themselves, with risk of being convicted of perjury--and that's insufficient to commute a man's sentence to life? Could that have been done just in case? Isn't that an error? What about the error that he was convicted on conflicting eye witness testimony? Is that not an error???
Here is a very impressive article from Slate about what was wrong with the testimony that put a lethal injection in Troy's arm. Here's a sample of (some) of what went wrong in Georgia's race to kill Troy:
...a perfect storm of botched eyewitness-identification procedures. Police did show photo arrays to most of the eyewitnesses—eventually. Although police made up a five-photo array with Davis' picture in it, they waited five to 10 days before using it to test the memories of any eyewitnesses. Why wait? Eyewitness memory decays rapidly. But in the meantime, police plastered wanted photos with Troy Davis' image—the same photo they put in the photo array—all around the neighborhood, and it ran widely on all of the local media outlets. Witnesses did not miss those wanted postings. Witnesses also described feeling pressure to identify Troy Davis. For example, one testified at trial about being told that "if I don't cooperate with them, that I'm gonna be in prison for ten to twelve years."What do you think? Does that sound fair to you?
From where I sit, as a trial lawyer, I believe the appellate process to be extremely flawed. I have no trust, no faith, in the lower court--nor the higher courts. Certainly not the Supreme Court, where political motivations may taint the decisions of the Supremes (Death Penalty, Pro-Life, Gun Rights, etc.).
Just last week, a decision that I appealed came down and it was so... so .... so wrong.
The lower court erred in it's application of the law. There wasn't a credibility determination made or anything. The appeal was simply about the lower court's error in its application of the law.
The law was statutory. There wasn't a lot of wiggle room for interpretation. It really seemed like a slam dunk. What did the appellate court do?
Their decision read like a list of "what not to do" in appeals:
They considered documents outside of the record.
They made an initial assessment of credibility.
They argued a point of law in the Respondent's favor that was never preserved on the record. Wait a sec, never asserted by the Respondent, never cited as a reason for the lower court's decision... NEVER BROUGHT UP. Not even at the oral argument before the appellate court.
They based their denial of the appeal on inaccurate facts that were not part of the record--material facts.
As lawyers, which I presume that most of you are, you understand why the appellate court's decision was not only wrong--but fucked up.
So, I have no faith in our wonderful justice system.
One of the abuses I endured this week was a verbal lashing out from one of my divorce clients. She said, "Do you think that you have a noble career? What you do isn't noble, it's bullshit!"