Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.”     George Washington

September 20, 2011

With Less than 24 Hours Remaining Before the Execution, Doubts Persist About the Guilt; Innocence of Troy Davis

by 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.

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5 Comments

  1. [...] the State of Georgia murdered* Troy Davis, Stephen Littau posted a very sensible examination of guilt, innocence, the death penalty, and the judicial process up at The Liberty Papers.  Worth [...]

    Pingback by All linky, no thinky « Blunt Object — September 21, 2011 @ 9:25 pm
  2. Stephen, your post is balanced and honest. Would that all death penalty opponents were as honest.

    Are you aware of any demonstrations at the execution of Lawrence Brewer? I’ve heard of none.

    Comment by Phil — September 22, 2011 @ 4:34 am
  3. Thanks Phil!

    I just try to call it how I see it. I don’t think the cause for ending the death penalty is well served by being dishonest about the facts of a given case. There were some stories I read that said there was “no” evidence tying Davis to the murder other than the witnesses; this turned out not to be true as other more objective articles mentioned the casings. We can debate whether or not the shell casings really tie Davis to the scene but don’t pretend that they were not there. Others tried to make this an issue about race. Was race a factor? I honestly don’t know one way or the other.

    As to the Lawrence Brewer case, I honestly did not know his execution was coming up until the day before. Here’s an interesting article about the contrast between the two cases: http://latimesblogs.latimes.com/nationnow/2011/09/troy-davis-lawrence-brewer-2-executions-2-very-different-reactions.html

    The linked article quoted a tweet from someone asking –”Why no outrage among celebrities over the execution of racist lyncher Lawrence Russell Brewer?” I think the answer is very much in the question. While I oppose the death penalty in all cases, it would be foolish to treat each and every case as if they were the same. I don’t know that there have ever been any serious doubts about Brewer’s guilt concerning the dragging death of James Byrd Jr. Because of the lack of any serious doubts and being a white supremacist, Brewer isn’t a very sympathetic person to point to as a reason to end the death penalty (actually quite the opposite; in Brewer’s last words he said he probably would have done it all over again if he could go back).

    It’s difficult enough to persuade people who shrug when bringing up cases where a likely innocent person was executed much less someone who was likely guilty and/or unrepentant.

    Comment by Stephen Littau — September 22, 2011 @ 10:55 am
  4. Also, I think it will be interesting to see if Al Sharpton shows up to protest Hank Skinner’s (a white man) execution or not. Is he only opposed to the Davis execution because Davis was black and perceives racism or was he standing on anti-death penalty principle?

    Comment by Stephen Littau — September 22, 2011 @ 11:03 am
  5. [...] Liberty Papers has a very good essay on the Troy Davis kefuffle in Georgia. Go thou and READ. Like this:LikeBe the first to like this post. Leave a [...]

    Pingback by Troy Davis « William The Coroner’s Forensic Files — September 22, 2011 @ 12:39 pm

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