Thursday, September 22, 2011

Troy Davis: An American Portrait of Justice Gone Awry

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!"

I concur.


  1. I wrote about it too... it makes me sick. And as someone who has done death penalty defense and hopes to continue to make a career out of death penalty defense, it hits especially hard.
    What if this was my client? How would I wake up and go to work the next day?

    I'm still sick over it.
    ONE good thing though - I was pleased to see the public outrage from nonlawyers. I have a feeling most of it was just because the news told them that they should be outraged about it, but I'll take it.

  2. No fan of the death penalty, but this guy is either pulled the trigger or his buddy did. If his buddy did it, then he is guilty of felony murder since it was in conjunction with beating up a homeless guy. Oh, and Troy shot another guy in the face earlier that day.

    The casings also matched his gun, but I think they may have thrown that out because of an illegal search.

  3. Great article, Angel.

    Edward Lazerus wrote an excellent book that was entitled "Closed Chambers." It covered the personalities and politics of the Supremes, including their sycophantic clerks. IDEOLOGY RULES that court, as it does for all tribunals, in this nation.

    Last chance death penalty appeals were typically voted down 5-4, along political lines. In fact, the pigs would refuse to even review the case, by a 5-4 political vote. (So much for "law as science," where judges apply legal "principles" in order to reach "correct decisions." At any rate, no one with an IQ above 75 believes this nonsense.)

  4. In August 1989, Troy Davis shot a cop in full view of witnesses in a Burger King parking lot, only a few hours after shooting at a passing car while exiting a party. After a two-week trial with 34 witnesses for the state and six witnesses for the defense, the jury of seven blacks and five whites took less than two hours to convict Davis of Officer Mark MacPhail's murder and various other crimes.
    The bulk of the evidence against Davis was eyewitness testimony because that's what tends to be available when you shoot someone in a busy parking lot. And the eyewitness testimony in this case did not consist simply of strangers trying to distinguish one tall black man from another. Several of the eyewitnesses knew Davis personally. The bulk of the eyewitness testimony established the following: Two tall, young black men were harassing a vagrant in the parking lot, one in a yellow shirt and the other in a white Batman shirt. The one in the white shirt used a brown revolver to pistol-whip the vagrant. When a cop yelled at them to stop, the man in the white shirt ran, then turned and shot the cop, walked over to his body and shot him again.
    Some eyewitnesses described the shooter as wearing a white shirt, some said it was a white shirt with writing, and some identified it specifically as a white Batman shirt. Not one witness said the man in the yellow shirt pistol-whipped the vagrant or shot the cop. Several of Davis' friends testified -- without recantation -- that he was the one in a white shirt. Several eyewitnesses, both acquaintances and strangers, specifically identified Davis as the one who shot Officer MacPhail.
    Among the witnesses who did not recant a word of their testimony against Davis were three members of the Air Force, who saw the shooting from their van in the Burger King drive-in lane. The airman who saw events clearly enough to positively identify Davis as the shooter explained on cross-examination, "You don't forget someone that stands over and shoots someone."
    Recanted testimony is the least believable evidence since it proves only that defense lawyers managed to pressure some witnesses to alter their testimony, conveniently after the trial has ended. Even USSC Justice William Brennan ridiculed post-trial recantations.
    Three recantations were from friends of Davis, making minor or completely unbelievable modifications to their trial testimony. For example, one said he was no longer sure he saw Davis shoot the cop, even though he was five feet away at the time. His remaining testimony still implicated Davis.
    One alleged recantation, from the vagrant's girlfriend (since deceased), wasn't a recantation at all, but rather reiterated all relevant parts of her trial testimony, which included a direct identification of Davis as the shooter.
    Only two of the seven alleged "recantations" (out of 34 witnesses) actually recanted anything of value -- and those two affidavits were discounted by the court because Davis refused to allow the affiants to testify at the post-trial evidentiary hearing, even though one was seated right outside the courtroom, waiting to appear. The court specifically warned Davis that his refusal to call his only two genuinely recanting witnesses would make their affidavits worthless. But Davis still refused to call them -- suggesting, as the court said, that their lawyer-drafted affidavits would not have held up under cross-examination.
    Note that all the above witnesses are themselves African-American. The first man Davis shot in the car that night was African-American. There's a reason more than a dozen courts have looked at Davis' case and refused to overturn his death sentence. He was guilty.
    CBS News justice correspondent Jan Crawford reported that even the four liberal justices on the nation's highest court agreed - Davis had multiple chances to prove his innocence, and each time he failed.

  5. Its one thing to be against the death penalty. But anyone who believes that Davis is innocent is more gullible than a 1L at Cooley.

  6. The first commenter "Legally Fabulous" describes herself "as someone who has done death penalty defense" but I hope she wasn't actually representing anyone since her blog says that she is awaiting the results from her THIRD attempt on the Illinois bar exam.

    Still, lots of passion and good luck to her next week when results come out.

  7. Unfortunate. I'm not surprised. This happens all the time at the state level. All of us criminal law practitioners know the reality.

    Its not about justice or fairness. Some of you need to really grow up. We don't know the details of the case. We are going on sensationalist media reporting of the situation. Where is the lower court opinion? There was no opinion rendered most likely because the vast majority of states don't publish them at the trial level. If possible you may be able to get the transcription but what good would that do?

    Clearly based on the evidence the Supreme Court decided (RIGHTLY OR WRONGLY) that there was no legal basis to stay the execution.

    I have a great deal of sympathy of this man and all the players involved. However, the evidence met the muster and there were no violations of his 4/5/6 found by the court.

    I am also against the death penalty. This court is very hard right conservative and has been churning out decisions that have further eroded the rights criminal defendants. Look at what they did recently with the "knock and announce" rule. The "amendment" made to the Washington rule. Pretty soon police will simply be able to show up with no warrant because there will be more exceptions than rule left.

  8. Legally Fabulous (the first commenter) did indeed pass the Illinois bar exam this time on her third attempt!

    Congrats to her!!!!!


  10. For all of you think of the death penalty as some sort of game, instead of what it is, you are as sick as those fake Christians in Georgia who murdered the man. The death penalty isn't a game of chess. If there is ANY doubt, the person shouldn't be killed. There are no do overs. Indeed, look at all the people who were released as a result of the innocence project. If those hard working lawyers/students had not taken the time to represent these poor people, they too would be dead.

    Before spouting immoral stupidity, just think if one of your family members were on death row, and there was any doubt that he or she did not do it. Would you look at the issue so clinical? I doubt it.



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