The Republic of T.

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The Next Troy Davis, Pt. 1

Troy Davis is dead, killed — murdered, some would even say — by the state of Georgia for a crime he may well not have committed.

While many questions remain about the case against Davis, even after his death, there’s one I want to focus on here: Who will be the next Troy Davis? Because someone will be. Our system of justice guarantees it.

In the days leading up to Davis’ execution, protests grew and protesters carried signs and wore t-shirts bearing the slogan, “I am Troy Davis.” As I read about the case, the meaning of that phrase sunk in. The state of our justice system is such that any one of us could have been Troy Davis: convicted and executed for a crime he may very well not have committed. In fact, it seems inevitable that one of us will be the next Troy Davis: tried, convicted and executed based on a case no stronger than the one against Troy Davis.

Day 8 Occupy Wall Street September 24 2011 Shankbone 21It’s important to remember that, while Davis maintained his innocence to the very end, many of his supporters are circumspect about his guilt or innocence. The case against Davis, at least as detailed on Wikipedia, doesn’t paint Davis as a saint. It implicates him in an earlier shooting, on the same night as the shooting of officer Mark McPhail. (Later, the victim of the alleged shooting was unable to identify Davis as the person who shot him, but Davis was ultimately convicted in that shooting.) It also puts him at the scene of the crime, and in the company of the man whom several witnesses now say actually shot officer McPhail — in the wrong place, at the wrong time, with the wrong people.

At the same time, Amnesty International reported that the case against Davis was far from “ironclad.” And while the a federal judge ruled in 2010 that Davis case didn’t meet the high bar set by the Supreme Court, which required him to show “by clear and convincing evidence that no reasonable juror would have convicted him in the light of the new evidence,” and thus Davis was not “not innocent,” the Guardian’s Ed Pilkington summed up ten reasons why there was enough doubt to have stopped Davis’ execution. Among them:

  • Nine of the witnesses who identified Davis as having shot McPhail, at his 1991 trail, have since recanted their testimony.
  • Some of the witnesses were illiterate, and could not read the police-written statements they signed in 1989.
  • Many of the witnesses said they had been coerced by police and threatened if they did not testify against Davis. (At least one, a former inmate, feared police would find some way to return her to prison if she didn’t identify Davis as the shooter in McPhail’s murder.
  • Of the two witnesses who did not recant, one has refused to say anything for 20 years: Sylvester “Redd” Coles, the man who first implicated Davis to police as the shooter. Evidence has since come forward to suggest that Coles may have been the gunman, and may have fingered Davis in order to save himself.
  • Nine witnesses have come forward with evidence that implicates Coles, including one who testified to having heard Coles confess to the murder.
  • No forensic evidence, particularly no DNA evidence links Davis to the shooting.
  • No weapon was found, and the ballistics evidence presented at Davis’ trial was unreliable. Coles later admitted he owned the same type of .38 caliber gun used to kill McPhail, but had given it away the night of the murder.

The former DA who prosecuted Davis has called the recantations “manufactured,” and supporters of Davis’ execution — like Ann Coulter — have claimed that recanting witnesses were somehow pressured by Davis’ defense team. What power over these the defense team was able to exert in that scenario escapes me. It seems far more likely that the statements identifying Davsi at his 1991 trial were manufactured the way such things have long been manufactured in our justice system: through coercion, and worse, by the police.

I’m not saying that this kind police intimidation of witnesses is common or rampant, but that it happens and is an undeniable factor in our system of justice, producing witness testimony and even confessions that may have no basis in truth. One of the worst cases in recent memory is that of former Chicago Police Department commander Jon Burge, who was convicted and sentenced to prison in February of this year for torturing more than 200 (most of them African American men) criminal suspects in order to force confessions.

It’s not hard to imagine that police, looking a the murder of a fellow officer, would be motivated or pressured to find a suspect. In the absence of forensic evidence at the scene, or any other physical evidence, all that’s left is eyewitness testimony. Sure, it’s highly unreliable. A study by John Monohan and Brandon Garrett of the University of Virginia School of Law found that witness identifications were erroneous in 79% of cases since 1989, in which wrongfully convicted prisoners were exonerated by DNA evidence. The study was cited in a landmark ruling by the New Jersey Supreme Court, which established guidelines for gathering eyewitness testimony that was lacking in Davis’ case.

In fact, eyewitness testimony has become such an obvious flaw in the criminal-justice system that less than a month ago, the State Supreme Court of New Jersey issued a landmark ruling on the unreliability of eyewitness testimony and provided guidelines on how to use such evidence going forward. The court’s opinion in State v. Henderson is sure to make ripples and, let’s hope, change precedent in other states. The opinion carefully assessed contemporary research, making it clear that existing Supreme Court standards for evaluating eyewitness testimony are dangerously obsolete. As Chief Justice Stuart Rabner wrote for the court, “From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country.”

Particularly irksome is that the safeguards whose necessity State v. Henderson makes clear were conspicuously absent from the Davis case. Eyewitness testimony is most reliable when gathered by a process that is careful and neutral, preferably administered by officers unaware of who the target suspect is. This is because the incentives to produce testimony favorable to the working theory of the police are overwhelming, and even officers acting in good faith can subtly bias questions, lineups, and photo arrays against the suspect.

According to several of the witnesses who have recanted their testimony, the eyewitness evidence against Davis was gathered by the kind of high-pressure police tactics that are especially likely to produce erroneous identifications.

That may be because the New Jersey court ruling is less than a month old. It may yet influence other cases, but for now,the case against Troy Davis is enough to justify his execution, and the doubt in his case isn’t enough to stop his execution. That combined with the realities of our justice system means that, almost anyone could be the next Troy Davis.

The execution of Troy Davis will probably not stop the debate over his guilt or innocence. One one hand, there is sufficient doubt to suggest both, depending on your point of view, and it will probably never be proven, short of a confession from someone else, which would probably be supported by even less evidence than the case against Troy Davis.

But the thing about our system of justice it this: After a certain point, innocence just doesn’t matter.

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