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The Needle and the Damage Done

[ 58 ] September 22, 2011 |

The execution of Troy Davis says some things about our legal system which apply to lots of issues beyond the debate over the death penalty. I had some (very tangential) involvement in this matter, so I think I know the case well enough to say the following with confidence: Davis’s execution was a grotesque travesty of justice, but it also resulted in the legally correct outcome, if by “legally correct outcome” one means what law professors usually mean when they ask if a case was “correctly decided.”

In brief, Davis’s problem was that, if he wasn’t able to demonstrate, after his conviction, that he had not gotten a full and fair trial — and he wasn’t able to demonstrate this, because the trial he got pretty clearly met the standard of what counts as a “fair trial” in our criminal justice system, at least for the purposes of the existing state and federal laws — then the only way he could avoid execution was to convince the authorities reviewing his case that he was actually innocent. (The inimitable Justice Scalia went so far as to declare that even this wouldn’t be good enough for the purposes of a federal court review of his case, because “this Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”).

Davis’s execution was a travesty of justice because, in my opinion, the chances are a good deal better than even that he didn’t murder Mark MacPhail. It’s more likely, in my view, that Redd Coles — the key witness in the case against Davis, and the man who went to the police in the first instance with the claim that Davis killed MacPhail — is MacPhail’s actual killer.

In retrospect the claim that Davis was guilty beyond a reasonable doubt for the crime for which he was executed is completely indefensible, but again, as a procedural matter, once Davis was convicted for the crime in what counts in our system as a fair trial (and he was), then as both a formal and practical matter Davis had to prove his innocence to a fairly high degree of certainty in order to avoid execution. This he was unable to do (I certainly don’t claim to know whether Davis was in fact innocent — I personally think the available evidence suggests he was, but that’s quite different from that evidence amounting to a genuine exoneration). So, as a formal legal matter, Davis’s execution did not involve any violation of state or federal law, even though he was probably innocent.

Now this realization should fill any decent human being with a sense of disgust, but it affects certain legal actors with something more like exasperation at the extent to which our current system refuses to achieve “finality” within a reasonable time frame. Justice Scalia’s dissent linked above could not be more clear on this point: what matters to him is whether or not the rules have been followed, and if they have then the execution of a probably innocent man is just one of those prices “we” must pay for all the wonderful things we get from the legal system.

As I have argued elsewhere, Scalia represents an extreme example of a certain kind of judge that positively revels in coming to conclusions that are morally revolting but “legally” sound. Judges of this type like these sorts of cases because they demonstrate that law is a supposedly nonpolitical and intellectually rigorous practice, rather than a touchy-feely exercise in doing what strikes the judge as the right thing.

What, after all, could be more nonpolitical and intellectually rigorous than executing an innocent man, simply because “the law” requires that result? In a perverse way, such bloody logic is a kind of advertisement for the supposed objectivity of the legal system, since we can assume that no sane decision maker would reach such a decision voluntarily. (The great legal historian Douglas Hay explained the 18th-century English practice of sometimes acquitting obviously guilty men on absurd procedural technicalities, such as incorrectly calling the defendant a “farmer” instead of a “yeoman,” in similar terms: “When the ruling class acquitted men on such technicalities they helped embody a belief in the disembodied justice of the law in the minds of all who watched. In short the law’s absurd formalism was part of its strength as ideology.”)

“The law’s absurd formalism was part of its strength as ideology.” Precisely. This insight applies to many more aspects of the legal system than the revolting spectacle of our contemporary system of capital punishment, which in a case such as Davis’s — which is not in this respect was not unusual — psychologically tortures the defendant, the defendant’s family, the victim’s family, and others connected to the case for literally decades before producing what the system then has the temerity to call “justice.” (The climax of this spectacle last night involved Davis being strapped to a gurney with a needle in his arm for nearly four hours, waiting for various legal personages to respond to the question of whether, all things considered, it was finally time to stop his heart with state-administered poison).

That we tolerate this kind of thing so readily helps explain, in its own way, why it sometimes seems impossible to do much of anything about the absurdities and dysfunctions of the system of legal education that legitimates it in the first instance. Or perhaps it’s the other way around: perhaps we tolerate the absurdity of something like the 22-year “process” that resulted in the horror of Davis’s final hours because we ‘re socialized from the beginning of our careers in this system to accept all kinds of absurdity and injustice as natural, inevitable, and therefore legitimate.

(C/P at ITLSS).

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Comments (58)

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  1. rea says:

    The only alternative to a rule-based system is to appoint a tyrant and hope he or she turns out to be benign. If a rule-based system occasionally leads to bad results, that means we need better rules, not that we need to abandon the concept of a rule-based system.

    The Davis case rather proves this point, as we don’t know whether or not he really committed the crime, but we can say with certainty that he wasn’t treated fairly, and that the evidence of his guilt was unconvincing.

    • R. Porrofatto says:

      If a rule-based system occasionally leads to bad results, that means we need better rules…

      I agree.

      Rule #1: No one gets executed

      Unfortunately, we’re a medieval religious nation, so we might not see this rule any time soon.

    • The only alternative to a rule-based system is to appoint a tyrant and hope he or she turns out to be benign.

      I disagree. Even in a system which is predominately rule-based, it is possible to design in a limited number of safety valves, without undermining the basic rule-based structure.

      The power to commute and pardon, for instance, is such a safety valve.

      • BradP says:

        The power to commute and pardon, for instance, is such a safety valve.

        I’m not entirely sure how those processes work, but aren’t those safety valves of the “benign tyrant” sort?

        • Malaclypse says:

          I’m not entirely sure how those processes work, but aren’t those safety valves of the “benign tyrant” sort?

          Exactly. In someplace like Texas, the illusory existence of this safety valve probably does more harm than good.

        • UserGoogol says:

          I suppose it depends on what you mean by tyrant. A pardon is a “tyranny” of a very specific sort, the tyrant in question only has the ability to make someone who has been punished be unpunished, not the other way around. As such, the safety valve does not depend on the benevolence of the tyrant per se, but instead it simply gives an extra opportunity for benevolence to enter the system. If the law is benevolent OR the tyrant is benevolent, then the person gets off free.

          (Of course, the goodness of this system depends on how you feel about actually guilty people going free.)

  2. [...] have a piece about the execution of Troy Davis which echoes a lot of the points in Paul’s superb post below. The really frightening thing about the case is that while it’s absurd to think that [...]

  3. MikeJake says:

    Now this realization should fill any decent human being with a sense of disgust, but it affects certain legal actors with something more like exasperation at the extent to which our current system refuses to achieve “finality” within a reasonable time frame.

    Oh, absolutely. Consider state statutes that allow convicted persons to petition the state to perform new DNA testing on evidence. Say you have a guy convicted of rape in 1985 based on eyewitness testimony and a jailhouse snitch, who maintains his innocence. 20 years pass, and DNA technology has advanced far enough to test evidence from his case.

    You would think that the State would be highly interested in claims that it has locked up an innocent man and that evidence exists that could exonerate him and would enthusiastically double-check, but no. In the State’s view, “finality” is more important than “making sure,” so long as a fair trial has been conducted. After all, virtually all criminal defendants will appeal their convictions in some way, which means lots of defendants making legal arguments that amount to “There isn’t enough evidence to convict me”, which means the legal system has been trained to be largely deaf to claims of innocence. It costs time and money (that states often don’t have) to perform new DNA testing, and it is axiomatically true that the vast majority of convicted felons are factually guilty even in the absence of any DNA evidence (eyewitness testimony, though problematic and at times unreliable, is still legitimate evidence), so the states don’t want to open the floodgates and let every convict demand new DNA testing, because then every convict will demand new DNA testing. Instead, the various state laws will make convicts jump through a bunch of statutory hoops before they’ll even consider new testing, and it’s a long process in any case.

    So while “finality” is a worthy goal of the justice system in general, in individual cases it certainly seems like the courts have a tin ear.

    • Anonymous says:

      it is axiomatically true that the vast majority of convicted felons are factually guilty even in the absence of any DNA evidence

      Only if you accept that axiom. All you are saying is, it’s true because we say it’s true.

      • rea says:

        Having read the transcripts of several hundred trials over the last couple of decades, and represented more criminal defendants than I can conveniently count, I will assure you, they’re mostly factually guilty. That’s not to say the system doesn’t make an unacceptable number of mistakes, but please don’t make the preposterous claim that most criminal defendants are innocent.

    • Lefty68 says:

      I agree with your point about finality. I suspect that additionally, many judges are offended by repeated postconviction challenges to death sentences because they undermine the principle of finality of judgments, and thus the judges’ own authority. I doubt that most lay people get this. Personally, I think that avoiding execution of the innocent is more important than principles of res judicata, and I’ll bet that most lay people agree out of basic human decency and common sense. That Georgia has carried out this execution when substantial doubts about Davis’s guilt have been so publically discussed demonstrates the relatively low priority of actual guilt or innocence in the current death penalty system and may ultimately undermine public support for capital punishment.

    • soullite says:

      Eye-witness testimony may be ‘problematic’, but we’ve got people sitting on deathrow based on things like ‘fiber analysis’ and ‘tire track analysis’ and other things that aren’t simply ‘problematic’ but outright psuedo-science.

  4. Scott Lemieux says:

    As I say above, it’s worth nothing that while under existing law it was nearly inevitable that the state of Georgia would be permitted to execute Davis, it certainly wasn’t required to do so. The Board of Pardons and Paroles shouldn’t be let off the hook; they had the power to stop the execution of a likely innocent man and refused.

    • Paul Campos says:

      Oh I agree. In a way it’s unfortunate that we have pardons boards and executive clemency, since their existence lets judges off the hook (“If there is a miscarriage of justice anywhere in all this then it can be corrected by the Executive etc.” Except it won’t be 99% of the time.)

      • Scott Lemieux says:

        Yeah, the whole evasion or responsibility dance compels me to read some Robert Cover. The addition of safeguards actually becomes and excuse for nobody to act.

        Actually, that’s another howler in Scalia’s Herrera concurrence; the federal courts apparently don’t need to intervene because of course if there was evidence of innocence the executive would intervene. Right.

        • MikeJake says:

          Maybe states could create an affirmative duty in their executive to intervene in cases like this, enshrined in their state’s constitution. After all, even if a jury convicts someone after a trial, a judge is nonetheless bound to acquit if the evidence presented at trial doesn’t meet the reasonable doubt standard. As it stands now, the only real consideration the executive has to regard is political.

          • L2P says:

            How would that work? If it’s not discretionary, we would need some sort of evidentiary standard and if the executive refused (I put the chance of THAT at 100%, since the same political pressures apply) you’d have a mandate proceeding anyway. What you’re creating is essentially a court retrial with additional discovery in all capital cases where there’s some relatively high level of doubt in the evidence. I think the chances of that happening is nil.

            I think until the political pressures change, from stuff like campaigns pointing out the errors and wrongs of the system, procedural changes are pointless.

  5. actor212 says:

    May God have mercy on the souls of the MacPhail family (who were guilty of nothing but will feel guilt when the truth comes out) and the lawyers and judges who allowed this to occur. Revenge is not justice.

  6. Jncc says:

    in my opinion, the chances are a good deal better than even that he didn’t murder Mark MacPhail. It’s more likely, in my view, that Redd Coles

    1. Could you outline the reasons why you think 7 eye witnesses testified otherwise initially?

    2. Have you read the trial transcript?

    3. What was on the clothing found in the washing machine that was ex cured from evidence?

    4. Why was the shell casing evidence unreliable?

    • Scott Lemieux says:

      4. Why was the shell casing evidence unreliable?

      Reliable in proving what? I don’t think anybody disputes that McPhail was killed by a gun. In the absence of a murder weapon, however, I’m unclear how the shell casing constitutes evidence that Troy Davis killed McPhail, which is what is actually in dispute.

      • Paul Campos says:

        Especially given that Redd Coles admitted on cross that he owned a gun of that caliber.

      • jncc says:

        Wasn’t there shell casing evidence that from this crime that matched a previous crime scene where Davis has been implicated?

      • jncc says:

        And, since both Mssrs. Lemieux and Campos are here: Did you both read the trial transcript?

        How much real investigation did you do before deciding the Davis probably didn’t do it?

        • Paul Campos says:

          I haven’t read the entire trial transcript, but I’ve read pieces of it, since I’ve read most of the briefs filed in this case at the appellate level, as well as all the judicial opinions.

          In my view it’s more likely than not that Davis was innocent, because the evidence against Coles is better (although not good).

          The tack you’re taking in these threads (how dare anyone question the judgment of 12 jurors honest and true!) worked a lot better in the days before it was possible, in a small subset of cases that turn on DNA evidence, to measure the reliability of juries.

    • L2P says:

      Those are excellent questions for a trier of fact to have looked at and reviewed. A shame that will never happen, eh?

      • jncc says:

        And even better questions for advocates to have addressed in trying to convince the public of Davis’ innocence to keep him alive.

        But hey, their heart was in the right place so bravo for them, right?

        • Walt says:

          Since you’ve yet to find any evidence that Scott and Paul aren’t familiar with the facts of the case, shouldn’t you maybe wait until they show themselves ignorant before you put on the self-righteous act?

        • Malaclypse says:

          “The public” was not who needed convincing. I don’t think “the public” had a vote last night.

          But hey, we killed someone, so bravo for us, right?

          No man is an island entire of itself; every man is a piece of the continent, a part of the main;
          if a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as a manor of thy friends or of thine own were; any man’s death diminishes me, because I am involved in mankind. And therefore never send to know for whom the bell tolls; it tolls for thee.

        • No, talking about the details of those particular questions is NOT and excellent way for those who tried to stop this execution from making their case, Concern Troll.

          Rather, talking about the obvious problems with the prosecution and evidence is the best way to convince people that there were obvious problems with the prosecution and evidence.

    • Triplanetary says:

      1. Could you outline the reasons why you think 7 eye witnesses testified otherwise initially?

      “Testified otherwise initially.” Five of them recanted. But I’m sure that means nothing, because the police never extract testimonies under duress or anything, not even in such an emotionally charged case as a fellow officer’s murder.

    • Anonymous says:

      “1. Could you outline the reasons why you think 7 eye witnesses testified otherwise initially?”

      Forget testimony about someone else, there’s evidence in many cases that people often make false confessions about their own involvement when pressured by the police. Is it really that hard to believe they’d give at the time, about someone else, only to false testimony, which they might even believerealize they were wrong or change their testimony later?

      • Anonymous says:

        Yikes, this is my comment and I only just noticed how nonsensical it is. Must have tried to edit and copied/pasted/deleted things where they weren’t supposed to be.

        Or I’m drunk.

    • Amy Woolard says:

      1. Could you outline the reasons why you think 7 eye witnesses testified otherwise initially?

      UVA Law Professor Brandon Garrett writes eloquently and explicitly about the many serious issues with eyewitness ID and testimony in his book, Convicting the Innocent but specifically addresses the witness testimony issue in the Davis case here — it’s an important read:

      http://www.slate.com/id/2304221/

  7. c u n d gulag says:

    paul,
    Great post.

    But an even better title. And so fitting!

    I don’t think there’s any such thing as a bad Neil Young quote. Even an epically tragic one like that one.

  8. ptl says:

    It is a great shame that opponents of Troy Davis’ execution feel impelled to argue his (probably innocence), just as US law more or less required him to prove it. His conviction, IMO, was unsafe. For that reason alone, he should probably have been freed. And US appeal law is, IMO, flawed.

    My apologies for this cumbersome link

    http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1653&context=lawfaculty&sei-redir=1#search=%22unsafe%20conviction%20usa%22

  9. Leeds man says:

    …it affects certain legal actors with something more like exasperation…

    And certain other legal actors with careerist ass-covering.

  10. Epicurus says:

    Scalia is a psychopath; there is really no other explanation. R.I.P., Mr. Davis…I do hope some good comes out of your death.

  11. Yasmine says:

    Can you link to some of your other writings on Scalia – in particular what you referenced here:
    I really liked how you hit the nail on the head on this. I abhor Scalia for just the reasons you’ve said. And what really drives me nuts is that these pedants are taken for intellectually rigorous when in actuality a great legal mind would find a way to do justice within the rules.

    As I have argued elsewhere, Scalia represents an extreme example of a certain kind of judge that positively revels in coming to conclusions that are morally revolting but “legally” soundin your

  12. [...] The Needle and the Damage Done — Some legal analysis on the execution of Troy Davis. Sobering. Ta-Nehisi Coates with an account of events. [...]

  13. [...] Troy Davis waited for nearly four hours while the Supreme Court took one last glance at his case, he was strapped to a gurney with the lethal needle already in his arm. That’s a form of torture that would have pleased the most bloodthirsty pre-modern tyrant. [...]

  14. The revolutionary Venezuelan Constitution established a justice system. It requires that the courts attempt to do justice, regardless of any laws or legal technicalities obstructing justice.

    The United States has a legal system, not a justice system. Our system requires that laws, even racist, unfair, and unjust laws, must be enforced without regard to justice.

    There’s an old story about the law professor whose students asked him about justice. He took the entire class outside the school, pointed to the sign on the building that said, “School of Law,” and told them that they were not enrolled in a school of justice, they were enrolled in a school of law.

    Laws, such as the old Jim Crow laws that required segregated trains, buses, hotels, restaurants, etc., do not have to be just, they only have to be laws. A legal system will enforce all laws, even unjust laws. A justice system will only enforce just laws. A legal system like ours often imprisons and executes innocent people who were unjustly convicted because a legal system isn’t required to concern itself with justice, only with laws.

  15. [...] more on the murder of Troy [...]

  16. [...] While many of us watched the final hours with a heart-wrenching sense of injustice, as Paul Campos points out at Lawyers, Guns and Money, “Davis’s execution was a grotesque travesty of justice, but [...]

  17. GeoX says:

    Yeah! He probably maybe sorta might’ve done it–that’s good enough to kill him for, right? That’s our stated standard, isn’t it? That we’re sort of in the ballpark estimate of maybe almost sort of sure of guilt with severe doubt?

  18. Leeds man says:

    Yeah….a lot less murdered police.

    Thank you. That is the stupidest thing I’ve read on the webs all day. But then, I haven’t bothered to read anything about the latest Repub debate.

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