Georgia’s shameful execution of Troy Davis on Sept. 21 prompts me to share the research tools below.
Three decades ago, I researched a Georgia case involving Jerry Lee Banks, a young black man sentenced to death for a white couple's murder. He could afford to pay his defense lawyer only $10, plus a kettle of fish and collard greens. The defense lawyer never called independent witnesses who could have proven innocence and never filed an appeal. In sum, the facts of the Banks frame-up and prompt death sentence reversed my view on whether a completely innocent person could be convicted under our modern legal system.
A second Georgia miscarriage of justice involves the ongoing work of Supreme Court Associate Justice Clarence Thomas, a native of the state and arguably the court’s most consistent justice in denying appeals from death-row inmates. He was the Court’s liaison to Georgia for purposes of the appeal of Davis, shown at right in a family photo with his mother, Virginia.
Georgia and Death Law
In the 1972 case Furman v. Georgia, the Supreme Court temporarily overturned every death penalty law in the country. The Court reasoned that courts had proven likely to impose death in an arbitrary manner that violated constitutional due process rights. Several other Georgia cases were prominent in litigation before the court over the next decade. State officials were eager to resume executions, especially in Georgia, Texas and other Southern states. But opponents kept showing that judges and juries were ordering death at very high rates for blacks, and particularly in cases with white victims.
During this decade, I worked for the Hartford Courant in Connecticut, primarily as a reporter covering federal courts and previously city crime (including many murder cases). Because of what I could see of the justice system, I felt confident that authorities were never likely to execute a truly innocent person.
My friend John J. Donohue III, at left, moved from a clerkship for Connecticut's chief federal judge to work at the elite firm Covington and Burling in Washington, DC, where his brilliance and passion for pro bono work made him one of the nation's leading death penalty opponents. During a conversation one evening in 1981 as he prepared to testify before the Senate Judiciary Committee, he persuaded me to change from my view that our system functioned reasonably well in death cases. He recounted, for example, the story of Jerry Lee Banks, an unemployed 23-year-old who reported to local police in 1974 that he found the bodies of a white man and a woman in a Georgia woods while he was deer hunting.
I researched the case, and became convinced of innocence, not simply reasnoable doubt, thanks to 4,000 hours of volunteer work by other pro bono attorneys in the type of monumental effort that is increasingly difficult for attorneys these days. Then, I authored for the Courant a lead editorial citing the Banks case as a reason for us all to be wary of death penalty convictions. That case are now long-forgotten, except undoubtedly by the defendant's three children orphaned as collateral damage from the prosecution. But I list the editorial on my bio page at the Schuster Institute for Investigative Reporting at Brandeis University, where I am a senior fellow. The reason? To remind myself, even if no one else is looking, how wrong I could be even in a life-and-death matter.
Donohue's knowledge grew out of comprehensive data that he shared more formally in a lengthy report on behalf of the America Civil Liberties Union during major Senate hearings on the death penalty in 1981. I've kept a copy of that testimony since then. With a doctorate also in economics, he has gone on to teach at Stanford Law School and become one of the nation’s most widely published scholars. Unlike many who play it safe, he courageously challenges conventional wisdom from both the left and right on a regular basis.
Justice Clarence Thomas
In contrast, few have been more political and self-dealing in their legal opinions than Associate Justice Clarence Thomas, who looks increasingly aged at 63 despite his vow to outlast all critics with many more years on the Court. We are now in the twentieth anniversary of his notorious confirmation hearing. It's increasingly clear that he and his backers lied, with some allies fooled by his demeanor and others ruthless in advancing their agenda no matter what the facts. At the minimum, he lied about his propensity to use and discuss pornography.
We all know about Anita Hill's courageous testimony. But the Senate failed to call others who could have supported her. Among them were now-retired federal judge Lillian McEwen, who was romantically involved with Thomas during the early 1980s. She published this year a fascinating book about her life, DC Unmasked and Undressed. Responding to a listener on my “Washington update” radio show last week who wanted to know if Thomas could be impeached, she described how Thomas used to talk in the early 1980s about a porno star named “Long Dong Silver.” That was exactly the same actor whom Hill described at the confirmation hearings. Thomas and his allies piously rejected under oath any such talk. Also, the Schuster Institute for Investigative Journalism's Founding Director Florence George Graves has extensively published on flaws in the Thomas confirmation hearings, synopsized here.
Even so, Thomas cleared the disgracefully short and otherwise unfair Senate confirmation hearing only by a 52-48 vote. That gives him the most opposition of any Court candidate in U.S. history.
On substantive matters including the death penalty, Thomas has carefully positioned himself to carry water for those who are remaking the country’s laws, politics and economy. So, assisted by the judiciary’s traditional independence from outside review under our constitutional system, Thomas has been free to do pretty much what he and his backers want on the court.
Fostering popular support for the death penalty is an important part of that jurisprudence because it helps maintain an image of populist concern by the court. Washington Post columnist E.J. Dionne, Jr. put this into perspective with a column, Sept. 26:
It’s hard to imagine now, but in 1966, more Americans opposed the death penalty than supported it — by 47 percent to 42 percent. But the crime wave that began in the late 1960s and the sense that the criminal justice system was untrustworthy sent support for capital punishment soaring. By 1994, 80 percent of Americans said they favored the death penalty, and only 16 percent were opposed.
No one on the Supreme Court has been more reluctant to grant review to those facing death than Thomas, who shamed the Senate into voting for him with his vicious and deceitful “high-tech lynching” tirade and his half-truths about an impoverished childhood in Pinpoint and Savannah, Georgia. Dionne’s Washington Post colleagues Kevin Merida and Michael Fletcher documented his death penalty jurisprudence in their outstanding biography of Thomas in 2007, Supreme Discomfort. They wrote:
Strictly speaking, death appeals are decided on the legal merits. But the issues are so subjective – was an appellant’s claim new? was it substantial – that, as a practical matter, the appeals often turn on whether or not a justice supports capital punishment.
A similar assessment based on the first years of the Thomas jurisprudence is contained in the 1994 book, Strange Justice: The Selling of Clarence Thomas, by then-Wall Street Journal staffers Jane Mayer and Jill Abramson. Mayer is now an investigative reporter at the New Yorker. Abramson is the executive editor of the New York Times. Thomas ends his own 2007 autobiography, My Grandfather's Son, with his 1991 installation in office, with little of subtance aside from his bromides and complaints about his critics. For that, he pocketed a $1.5 million advance from Rupert Murdoch's HarperCollins. For more analysis, let's return to the Merida / Fletcher assessment:
Two former clerks for other justices say that Thomas almost always votes against death penalty appeals – “reflexively,” says one – even in cases that appear to be close calls. “That’s just unbelievable – even if you are an ardent death penalty fan,” observes the other former clerk. All that is made known outside the court is whether or not an appeal is granted, so that clerk’s view is impossible to quantify. But this much is clear: Thomas has proven to be among the justices most reluctant to throw out death sentences that come under Supreme Court review.
The Davis Execution
This background helps decipher the review process in the Davis murder conviction for a 1989 fatal shooting during a mugging outside a fast-food restaurant in Savannah. The victim was off-duty policeman Mark MacPhail. A jury of seven blacks and five whites sentenced Davis to death based on eyewitness testimony. But a worldwide clemency campaign led by Color of Change and similar death penalty opponents and skeptics generated hundreds of thousands of signatures saying that even a 174-page district court review of the case in 2010 did not provide a just result. But the victim’s mother, Anneliese MacPhail, among others, had a different view. “He’s had all the chances in the world,” she said of Davis. “It has got to come to an end.”
The Supreme Court responded with a one-sentence statement at 10:43 p.m. on Sept. 21: “The application for stay of execution of death presented to Justice Thomas and by him referred to the Court is denied.” Davis, age 42, proclaimed his innocence once again, and soon received a fatal injection that had its effect by 11:08 p.m., when he was pronounced dead.
Prompted by this and other controversies regarding eyewitness testimony at trials, the Schuster Institute for Investigative Journalism at Brandeis University last week announced a unique project to explain to other journalists and citizens the role that mistaken eyewitness identification plays, including in lots of convictions that end in exonerations. They describe how eyewitness mis-identification played a large role in the Davis case, in which 7 out of 9 eyewitnesses recanted their original identification of Davis. Also, it has factored in convicting 75% of the 273 men and women who have been found to be innocent through DNA testing. The guide presents a number of resources on eyewitness science and other research to aid local journalists in their own investigations of possible wrongful convictions or current police practices in their area. More generally, the Schuster Institute's initiative on eyewitness ID is in the tradition of the university’s namesake, Supreme Court Justice Louis Brandeis. He was an eloquent advocate of justice who often found himself in the minority throughout his career. But his values obviously endure. Lindsay Jean Markel, the Schuster Institute’s assistant director, described the ID program’s research goals this way:
Discover the science that says eyewitness identification is highly unreliable—and write about DNA exonerations in your own state in which inmates were wrongfully convicted based on faulty eyewitness identification—sometimes by several people who were simply wrong, as DNA tests have proved. Experts say that the human memory is malleable, easily corruptible, and that eyewitnesses’ recollections should be treated with the delicacy of any other crime scene evidence.
Let's try to use this research tool, available here, and any other helpful ones. Realistically, we cannot know for certain exactly what happened in most of these cases. The Banks case in Georgia proved that to me long ago. I learned that Banks was innocent beyond any reasonable doubt -- but that it has not been established who actually shot the two victims he found.
I see evidence of this uncertainty even in the pro-death penalty argument in my by-now well-thumbed, 600-page copy of the 1981 Senate Judiciary hearings on the death penalty. A leading pro-death penalty witness was Dr. Walter Berns of the American Enterprise Institute, who cited Shakespeare and Camus as part of his nine-point argument to justify society's right to use the death penalty satisfy the public's desire for retribution. In citing the play Macbeth, Berns told the Senators, "Shakespeare's dramatic poetry serves to remind us of another world, of the majesty of the moral order and the terrible consequences of breaching it through the act of murder -- the worst offense against that order." By coincidence, Berns had been a favorite professor of mine at Cornell University more than a decade previous, and had been voted at the top in an annual poll of students. But even Berns, a government professor, drew on inherently subjective fields of literature and morality for his 1981 argument to the Senate. For example, he dismissed the possibility of statistical proof of deterrence, which he said was unknowable.
In 1981, I ended my editorial this way: Jerry Lee Banks suffered greatly because he acted like a good citizen in notifying police about those bodies he found in the woods when he was hunting, saying, "If I hadn't called [the police], I'm not sure I ever would have felt good about myself again."
The bottom line, sadly, is that it is difficult to know guilt beyond a reasonable doubt. But we can keep trying – and can stay vigilant to ensure that our leaders on the courts are doing the same.
Below are columns referenced above or otherwise providing context. See the full article by clicking the link.
Associated Press / WSAV-TV (Columbus, GA), Mark MacPhail's Mother Agonizes Over Execution Wait, Sept. 21, 2011. The mother of a slain Georgia police officer says she is agonizing over the wait while the U.S. Supreme Court decides whether to allow the execution of Troy Davis. Davis was convicted 22 years ago of shooting her son Mark MacPhail, left. Davis insists he is innocent and has appealed to the U.S. Supreme Court. Anneliese MacPhail told The Associated Press on Wednesday she's "a nervous wreck." Her comments came about 90 minutes after Davis' scheduled execution had passed. She says Davis has had "all the chances in the world" to clear his name.
Associated Press / Atlanta Journal Constitution, Georgia death case grieves families on both sides, Russ Bynum, Sept. 17, 2011. An elite Army Ranger, Mark MacPhail left the service and became a police officer to spare his wife and young children from the base-hopping life of a military career. Troy Davis dropped out of high school in his senior year to help care for his younger siblings, including a sister stricken with multiple sclerosis. Both men inspired unwavering love and loyalty in their families that still runs deep more than two decades after one summer night forced the Davises and the MacPhails to opposite sides of a long legal battle that could end next week in a Georgia prison death chamber.
Washington Post, Troy Davis: Guilty as charged, Charles Lane, Sept. 22, 2011. Troy Davis’ execution is nothing to celebrate. The only satisfaction it offers, if any, is the grim kind that comes from knowing a killer got his just deserts. Of course, to opponents of the death penalty, every execution is an outrage. Davis’ supporters say this one is worse: the deliberate state killing of a man despite evidence that he is innocent. If they’re right, Georgia and all of America should be ashamed. But they’re wrong: Troy Davis is guilty.
The Nation, Supreme Court Rejects Stay of Execution for Troy Davis, Richard Kim, Sept. 21, 2011. The Supreme Court issued a one-sentence statement denying Troy Davis’s stay of execution. It read, “The application for stay of execution of death presented to Justice Thomas and by him referred to the Court is denied.”
Washington Post, Only conservatives can end the death penalty, E.J. Dionne Jr., Sept. 25, 2011. Every so often, one capital case makes a public spectacle of the American machinery of death. Last week, it was the controversy over Troy Davis, who was executed in Georgia after years of impassioned argument, organizing and litigation. I honor those who worked so hard to save Davis’s life because they forced the nation to deal with the imperfections and, in some instances, brutalities of the criminal justice system. Yet after all the tears are shed, the repeal of capital punishment is still a political question. Can the politics of this question change? The answer is plainly yes.