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The Needle and the Damage Done


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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