With Less than 24 Hours Remaining Before the Execution, Doubts Persist About the Guilt; Innocence of Troy Davisby Stephen Littau
Despite seven of nine eyewitnesses recanting their testimony, the failure to find the murder weapon, DNA or other forensic evidence, and despite jurors from the original trial who say they would not sentence Troy Davis to death if they had it to do over again, the State of Georgia will execute Troy Davis for the murder of Mark MacPhail on September 21, 2011.
As I have pointed out before, eyewitness misidentification is a leading cause for wrongful convictions. The New Jersey Supreme Court has even gone as far as requiring that jury instructions advise the jury of the human fallibility of memory based on roughly thirty years of research.
Besides the eyewitness testimony the other evidence linking Davis to the murder were shell casings found at the scene that linked Davis to another shooting for which he was convicted. The problem is apparently, ballistics evidence isn’t all it’s cracked up to be either. It’s certainly by no means as solid as DNA evidence.
As someone who is opposed to the death penalty on principle, I believe that Troy Davis’s sentence should be commuted to life. The fact that seven witnesses recanted their testimonies is very troublesome whether they were mistaken the first time or coerced to give the testimony the police and prosecution wanted to hear.
But is this enough to say that Troy Davis is innocent of this horrible crime? As much as I would like to say yes, I’m afraid the answer is no.
Proving someone guilty beyond a reasonable doubt and proving someone innocent are two very different things. Once someone is found guilty, the burden of proof is shifted from the state to the convicted (i.e. no longer innocent until proven guilty but rather guilty until proven innocent). While it is disturbing that, for one reason or another, seven witnesses recanted their testimony the fact remains that two did not. Whether or not Davis could have been convicted on the strength of two witnesses rather than nine is impossible to say.
The shell casings in of themselves are circumstantial as is the testimony of the remaining two witnesses. However, when enough circumstantial evidence is put together, reasonable doubt gets less and less reasonable even to someone like me who would enter the jury box very skeptical of the state’s case (though I’m not certain that this would be enough in this case).
And what about the jurors who changed their minds about voting for the death sentence? Those who wish to see the execution carried out might suggest that these jurors could have been pressured (along with the witnesses perhaps) by anti-death penalty activists and/or Davis’s lawyers. As much as I hate to admit it, they would have a valid point. It’s not difficult to imagine a juror having second thoughts about condemning a man to die – guilty or not.
If you asked me, failure to meet the burden of proof of actual innocence notwithstanding, “do I personally believe that Troy Davis is guilty of murdering Mark MacPhail?” my answer would be simply “I don’t know.”
And I really don’t know and I don’t believe my friends in the anti-death penalty movement know either.
This is why I would not be comfortable holding a sign saying “Troy Davis is Innocent” or wearing the t-shirt that some are wearing at the protest which read “I am Troy Davis.”
I will gladly sign the petitions to whomever to have the sentence commuted on basic principle but I am by no means willing to say that Troy Davis is innocent of this crime. To my fellow travelers who oppose the death penalty on principle, I urge caution on this one as to arguing Davis is innocent.
I don’t know if Davis committed the murder or not but neither do those who insist that Troy Davis must die tomorrow. All the more reason why the execution should be cancelled and the sentence commuted.