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Reexamining The Death Penalty: How Much Doubt Is Reasonable To Stay An Execution?

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by Philip Bump | 3:45 pm, September 14th, 2011

» 49 comments

How certain of someone’s guilt do we need to be before we put them to death?

In eight days, the state of Georgia is slated to execute Troy Davis, convicted of killing Mark Allen MacPhail, a Savannah police officer. It’s the fourth time Davis has been slated to die. Each of the prior three times, legal issues have resulted in stays or delays. The Supreme Court has repeatedly heard – and declined to hear – arguments on the case. In the fall of 2008, Davis came within two hours of being put to death.

On August 19, 1989, officer MacPhail, while off-duty, was shot and killed while trying to break up a fight in a Burger King parking lot. A number of witnesses told the jury at trial that Davis had confessed; Davis himself admitted being at the scene.

But after his conviction, seven of the nine witnesses recanted their statements, some saying it came under duress. There was a lack of physical evidence linking Davis to the gun that fired the fatal shot. A juror expressed remorse at the death sentence; a number of prominent individuals wrote letters demanding parole or commutation.

My goal here is not to re-try the case. None of us has seen all of the evidence or heard cross-examination; we have not been instructed in the letter of the law. My goal is, instead, to consider the question asked at the outset.

How certain of someone’s guilt do we need to be before we put them to death? More precisely, how certain does a state need to be before signing off on an execution?

It seems clear that a supporter of the death penalty would deem certain guilt – say, a guy caught on video, with a written confession, with multiple witnesses – sufficient. Likewise, clear innocence – the man was caught on video in another state – would rule out the punishment. But where along the line between the two do the scales tip?

The standard applied for determining guilt in a jury trial is familiar – guilt must be established beyond a reasonable doubt. If you have any rational, reasonable cause to think that the person might not have committed the crime, you must find him not guilty. It’s an elegantly interpretive standard, one that asks an individual to make a judgment call.

But that standard doesn’t apply outside of the courtroom. In a jury trial, certain evidence may be deemed inadmissible – with good cause or not – which might shift the level of doubt held by even a close observer. New evidence might appear, such as the recanted testimony in the Davis case.

In many states, a Governor is empowered to commute a death sentence. This is powerful: a Governor is not bound to follow the letter of the law (chains of evidence, assessments of the decision-making of lower court judges, etc.). The Governor can make a decision based on evidence or feelings that the state supreme court cannot. In the case of Davis, even the United States Supreme Court demanded he “clearly establish his innocence”. But for a Governor, it’s that person’s decision. In the most literal sense, a Governor is asked to make a determination on what is just.

The Governor has multiple constituencies vying for his attention. There are the family and friends of the victim and the same group for the convicted person. There are the voters of the state; there is law enforcement. Each has a reason for advocating an outcome.

It’s impossible for an elected official to take politics out of the decision. He or she will be judged based on what is done – and it’s often the side that advocates execution that is more politically powerful. (In fact, a common criticism of the death penalty is that it is disproportionately applied to people of color and the poor. Were Troy Davis the son of Ted Turner, it’s hard to imagine he’d be in the same position.) These are the considerations that muddy the waters for a Governor; though the chances of recidivism are minuscule for someone with a life sentence, it’s a difficult, nuanced position to defend on the campaign trail.

But let’s set politics aside, clear the waters. For that Governor, faced with that decision: how much innocence is enough to spare a life?

Reasonable doubt? Any possible gap in demonstrable proof? What if new evidence could come to light? Or new technology. 139 people have had death sentences overturned in America, complete exoneration – mostly through DNA evidence. What if a new, future technology might even crack open the door of doubt? Is that enough innocence?

In the Troy Davis case, it’s not up to Governor Nathan Deal. Instead, it falls on the State Board of Pardons and Paroles, an executive branch agency empowered to grant clemency. The Board has a process it follows to decide whether or not to commute a sentence; the five-person panel then votes. A majority vote, three ayes, can commute the sentence. Likewise, three nays can uphold it.

So what of those two votes for commutation? Is the number we’ve been looking three-in-five odds? 60%? A criminal must be 60% guilty in order to be put to death? Can be no more than 40% innocent?

Life is black and white, on or off. It seems improper to deal with fractions and meddle in the gray when assessing whether or not to take that life away.

We tend to think of death penalty as the execution of a murderer, a criminal. What if we think of it as the potential execution of someone who is innocent?

Where is that line of execution drawn? And who do we empower to draw it?

Death Penalty, Mark Allen MacPhail, Nathan Deal, Rick Perry, Troy Davis

Redleaf

If blacks or Hispanics are involved, doubt doesn’t matter. They’re probably guilty of something or they will be in the near future.
Redleaf

If blacks or Hispanics are involved, doubt doesn’t matter. They’re probably guilty of something or they will be in the near future.
Anonymous

Flagged, bigot.
ChrisG

I could be wrong, but I think (hope at least!) that Redleaf is being sarcastic…
Laurence Glavin

Far-right-wing zealots experience cognitive dissonance (although they undoubtedly don’t know what that means) when it comes to the death penalty. They fervently believe that people in the government CAN’T DO ANYTHING RIGHT: fix potholes, teach students, deliver the mail…but when it comes to capturing those guilty of capital crimes and proving that THEY and nobody else did it, government officials are always beyond reproach, no further questions your Honor.
ChrisG

Thoughtful article.

I hope the author is not expecting thoughtful responses from Tea Partiers though.

We know their response is:

“Kill ‘im! Hell yeah!” as evidenced by the responses at the recent GOP debates.

One teapartier when asked about the fact that Perry almost certainly excuted an innocent man (Cameron Todd Willingham), responded that “it takes a lot of balls to execute an innocent man”.

A very ugly side of america has been exposed. The tea party has allowed the most vile and hateful sentiments to be expressed openly and proudly. Perhaps it is good in the long run though that the roaches have come out from the dark and are now exposed…
In all seriousness, I urge decent americans, especially christian americans, to research this case and contact the parole board. Troy Davis most likely is innocent.

Are we really the type of country to execute possibly innocent people in this day and age without any hesitation?
Michelle

Hm, I thought this was a media site.
Michelle

He’s one of you, sweeite.
Michelle

Wrong. That’s why we have a jury of our peers.
Michelle

You’re a moron.
ChrisG

Considering how psychotic the right wing has become lately, I certainly can’t blame her for not catching this as satire.
ChrisG

Wrong. When it comes to pardoning or commuting a death sentence it is the Government who makes the call. Either the governor, supreme court, or in this case the parole board.

If this man’s fate WERE subject to a jury of his peers (now that there is new evidence) that Jury would not sentence him to death as several Jury members have stated they regret their verdict.
ChrisG

Wow, I am silenced and humbled by your insightful and reasoned rebuttal! How long did you work on that???

For somone with so little of substance to say, you sure do post a lot.
Anonymous

i do not favor the death penalty, but i dont favor cable tv and gyms for inmates, they should work……..jail is punishment
Anonymous

Karma has a way of dealing with people like you! I hope none of your close ones gets the death penalty, only then will you understand.
Anonymous

She is a republican shill…..notice how she has nothing to counter your comment and so she looks for a way to demean your comment!

She has nothing to say on the death penalty because it puts the far right into shame. What a douch£
Anonymous

“Wrong. That’s why we have a jury of our peers”
EPIC FAIL, Michelle!!!!
ChrisG

Come to think of it, that’s another thing that pisses me off about you Tea Tards!

You are such ridiculous caricatures of far right lunatic/morons that you are making satire increasingly difficult!
ChrisG

Come to think of it, that’s another thing that pisses me off about you Tea Tards!

You are such ridiculous caricatures of far right lunatic/morons that you are making satire increasingly difficult!
ChrisG

Why is this woman such a ridiculously prolific poster?

It’s almost like she enjoys displaying her ignorance.

I have noticed her recurring pattern of responding to an argument she can’t refute with a lame insult.
ChrisG

Were you embarrassed when the audience cheered in glee that Perry executed over 200 people?

Even IF every one of them was guilty (which is almost certainly not the case), do you think that is the appropriate response of civilized people?

Not just approval, but obvious glee?

Even if they ALL were guilty (which is almost certainly not the case) and you agree with capital punishment, isn’t that a rather sobering fact that might deserve a more solemn and serious response?

Discounting the executed (assuming they were all guilty), what about the victims? The families of both victims and perpetrators? I would imagine those 200 executions reflect a lot of pain and suffering of a lot of people.

Do they deserve a response the equivalent of your favorite team scoring a touch down?

Were you embarassed?

I certainly would have been.
ChrisG

I don’t think they should be coddled either, but have you ever thought of it from the guards’ perspective?

Providing a gyms provides an outlet for physical energy and aggression.

I certainly wouldn’t want to be a guard with a bunch of caged animals with pent up energy.

I imagine it’s cost effective in the long run.
Anonymous

lol……..obvious shill is obvious. Michelle needs help
Anonymous

Philip writes:

“139 people have had death sentences overturned
in America, complete exoneration – mostly through DNA evidence.”

What nonsense.

The 130 (now 138) death row “innocents” scam
http://homicidesurvivors.com/2009/03/04/fact-checking-issues-on-innocence-and-the-death-penalty.aspx

9 death row inmates have been released from death row bcause of DNA
exclusion.
Anonymous

Based upon the evidence presented in the June, 2010 hearing, it was clear
that the federal district court would rule against Davis and that SCOTUS would
not intervene.

This shouldn’t have come as a surprise to anyone that knew the facts of the
case.

Anti death penalty folks, were, of course, fed a bunch of nonsense by their
leadership and they simply accepted it.

As I wrote 6/25/10

Innocence claims will offer no reprieve for Troy Davis
Dudley Sharp

Based upon the media reports, alone, of the two day hearing of June 2010,
just as I suspect Davis’ attorneys have known all along, the appellate case
cannot prevail in overturning the findings that Troy

Davis is guilty of the murder of Police Officer Mark Allen MacPhail.

What happened in the two day hearing was very ordinary, if you are aware of
anti death penalty nonsense. (1)

Sylvester “Redd” Coles’ “Confessions”

The blockbuster witnesses who were going to testify that the “real
murderer” Sylvester “Redd” Coles had confessed to them were not allowed to
testify, because Davis’ attorneys refused to call Coles to testify, thereby
rendering these witnesses in possession of hearsay evidence and, therefore, not
able to testify.

Well, Judge Moore did allow, wrongly, one of them, Anthony Hargrove, to
testify. The judge “said that unless Coles is called to the stand, he might give
(Hargrove’s) hearsay testimony “no weight whatsoever.”

Of course, Davis’ attorneys didn’t call Coles. Davis’ attorneys made sure
Hargrove’s testimony as well as the other “confession” witnesses will have no
weight.

This will become part of the anti death penalty PR machine – the anti death
penalty folks will blame the system for not allowing the “truth” to come out, by
muzzling these witnesses, even though Davis’ attorneys had to do this
intentionally, knowing that the witnesses couldn’t be heard, because of the
hearsay rule.

The defense couldn’t call Coles, because he would have been a strong
witness to rebut his alleged confessions, therefore making things worse for
Davis. I seems obvious that the defense made a statement as to how fragile and
unreliable these “confession” witnesses were that Davis’ attorneys refused to
call Coles.

Hargrove being wrongly allowed to testify must have been a surprise.

“Recantation” Witnesses

The additional problem for Davis is this: There are solid witnesses against
Davis who did not recant.

The recantation witnesses claims that the police pressured or threatened
them into falsely testifying make no sense.

First, there were enough witnesses against Davis – the state had a solid
case – therefore there was no reason to put lying witnesses on the stand. Even
if we presume that some were pressured and threatened into false statements,
both police and prosecutors knew, before trial, that they need not risk putting
any such perjuring witnesses on the stand. They had enough evidence without
them.

Why risk perjured testimony when you don’t need it? They wouldn’t have.

Secondly, the non recantation witnesses, the police investigators, and
prosecutors have been consistent from the beginning of the case – those
witnesses haven’t recanted, and police and prosecutors have testified that there
were no threats or pressure for false testimony and those consistent, non
recanting witnesses gave truthful statements without pressure or threats.

Thirdly, there is no evidence that the investigating officers or the
prosecutors had ever been involved in such illegal activities before and the non
recantation witnesses give more weight to the position that police and
prosecutors did not pressure or threaten for false testimony and to the
proposition that the recantations were the lies.

Judges are very aware of false testimony and how pressure can be applied to
produce it, by community activists, such as anti death penalty folks.

Judges are aware that pressure is a two sided coin and they must consider
both sides of it and how that may effect credibility. In a case such as this,
the evidence is such that

Davis cannot prevail.

Credibility – this says it all.

“(Troy) Davis’ legal team also summoned Benjamin Gordon, who testified that
he saw Sylvester “Redd” Coles shoot and kill the officer.” (2)

Gordon, who is incarcerated and has at least six prior felony convictions,
said he never came forward because he did not trust the police and feared what
Coles might do to him or his family in retaliation.

“Is there any doubt in your mind that Redd Coles fired that shot?” Horton
asked. “No, sir,” Gordon replied.

Davis’ legal team has long maintained that Coles, who was at the scene and
came forward after (Police Officer) MacPhail’s slaying and implicated Davis to
police, was the actual triggerman. Coles has denied shooting MacPhail.

Beth Attaway Burton, the state’s lead attorney, got Gordon to acknowledge
he never said he saw Coles shoot MacPhail in interviews with police “or in sworn
statements he gave Davis’ legal team in 2003 and 2008.”

“What made you change your story today?” Burton asked.

“It’s the truth,” Gordon said. ”

I think the judge will have to weigh Gordon’s credibility similarly to that
of Davis’ other supportive witnesses –
ZERO.

—————————–

Note: We will hear protests
that Davis’ attorneys tried to subpoena Coles the day before the hearing, but
couldn’t locate him. The judge didn’t buy it saying that there was no excuse
based upon them having much time to prepare for the hearing. It’s clear they
didn’t want Coles. When Davis loses this appeal, he will then appeal to a higher
court, which will uphold the denial.

(1) 3 of many

“The Innocent Executed: Deception & Death Penalty
Opponents”
http(COLON)//homicidesurvivors.com/2009/10/08/the-innocent-executed-deception–death-penalty-opponents–draft.aspx

The 130 (now 139) death row “innocents”
scam
http(COLON)//homicidesurvivors.com/2009/03/04/fact-checking-issues-on-
innocence-and-the-death-penalty.aspx

“Cameron Todd Willingham: Another Media Meltdown”, A Collection of Articles

http(COLON)//homicidesurvivors.com/categories/Cameron%20Todd%20Willingham.aspx

(2) All quotes from this article:

“Witnesses back off testimony against Troy Davis”, The Atlanta
Journal-Constitution, June 23, 2010
www(DOT)ajc.com/news/atlanta/witnesses-back-off-testimony-555778.html?cxntlid=daylf_artr

Other
references:

Troy Davis: Both sides need to be told
Dudley Sharp,
contact info below

Anyone interested in justice will demand a fair,
thorough look at both sides of this or any case. Here is the side that the pro
Troy Davis faction is, intentionally, not presenting.

(1) Davis v
Georgia, Georgia Supreme Court, 3/17/08
Full ruling
www(DOT)gasupreme.us/pdf/s07a1758.pdf
Summary
www(DOT)gasupreme.us/op_summaries/mar_17.pdf

” . . . the majority finds
that ‘most of the witnesses to the crime who have allegedly recanted have merely
stated that they now do not feel able to identify the shooter.’ “One of the
affidavits ‘might actually be read so as to confirm trial testimony that Davis
was the shooter.’ ”

The murder occurred in 1989.
(2) “THE PAROLE BOARD’S CONSIDERATION OF THE TROY ANTHONY DAVIS CASE” ,
9/22/08, www(DOT)pap.state.ga.us/opencms/opencms/

“After an exhaustive
review of all available information regarding the Troy Davis case and after
considering all possible reasons for granting clemency, the Board has determined
that clemency is not warranted.”

“The Board has now spent more than a
year studying and considering this case. As a part of its proceedings, the Board
gave Davisâ?? attorneys an opportunity to present every witness they desired to
support their allegation that there is doubt as to Davisâ?? guilt. The Board
heard each of these witnesses and questioned them closely. In addition, the
Board has studied the voluminous trial transcript, the police investigation
report and the initial statements of all witnesses. The Board has also had
certain physical evidence retested and Davis interviewed.”

(3) A detailed review of the extraordinary consideration that Davis was
given for all of his claims,
by Chatham County District Attorney Spencer
Lawton http(COLON)//tinyurl.com/46c73l

Troy Davis’ claims are
undermined, revealing the dishonesty of the Davis advocates . Look,
particularly, at pages 4-7, which show the reasoned, thoughtful and generous
reviews of Davis’ claims, as well a how despicable the one sided cynical pro
Troy Davis effort is.

(4) Officer Mark Allen MacPhail: The family of murdered Officer MacPhail
fully believes that Troy Davis murdered their loved one and that the evidence is
supportive of that opinion.
www(DOT)fop9.net/markmacphail/debunkingthemyths.cfm

Not simply an
emotional and understandable plea for justice, but a detailed factual review of
the case.

(5) “Death and Dying”, by Cliff Green, LIKE THE DEW,
7/22/09,http(COLON)//likethedew.com/2009/07/22/death-and-dying/
Fudge441

Tea bagged alert
Anonymous

It seems like four innocent people were put to death in Texas under Perry’s watch. It’s a sham when Republicans say that their pro-life.
Shogan83

To answer the title question: any doubt. I would rather 10 guilty men than execute an innocent man.
ChrisG

Sadly, I think the far right would prefer the opposite ratio.
Anonymous

The question interests me. I have always wondered why it is harder for some jurors to give someone the death penalty, but they will give that person life in prison as if that’s an even better fate.

As far as this case, I don’t know the details, but just from going off of what was reported in the article I would be in favor of giving him a new trial altogether. If there’s evidence he may not have done the crime, or that he was railroaded, give him a new trial. It makes no sense to overturn the death penalty on the basis that he might not have done it, but still keep him locked up for the rest of his life.
Michelle

Yawn
Michelle

I’m always happy to meet my fans. Funny, you seem a little obsessed with me. I shall add you to my growing list of liberal stalkers.
Michelle

Are you embarrassed by marches celebrating the murder of innocent children?

Hey, I’ll bet you cheered yesterday at the story of the Canadian woman who had a baby, strangled it, and got off because, hey since abortion is legal she shouldn’t be punished.
Michelle

Solitary confinement for the rest of their lives would keep those around them safe. But that’s probably cruel and unusual punishment to you libs.
Glutton

Because with life in prison, it leaves the door open to correct a mistake. You could release someone from prison but you can’t bring someone back from the dead.
Glutton

Rick Perry basically ran a prison state in Texas. Best jobs were prison guards, best way to deal with the unemployed was to put them in prison, and the best way to deal with overcrowding was to execute the prisoners. It’s the most efficient way to run a country. Nazis did similar things.
Glutton

Cable tv and gym membership isn’t that bad for people going in for drug offenses. Those people shouldn’t be in prison in the first place.
Glutton

You are an incredibly sick & deranged person. I really hope you get some help.
Glutton

If you were included in any jury of peers, I think that’s a valid case for a mistrial.
Glutton

That’s pretty much how the system is run anyways. You think that black people really smoke 85% of the marijuana in the United States being less than 15% of the total population?
Anonymous

I’ve thought about that, but it’s not like we carry out speedy executions. It just seems to me that some people come off as if they are okay jailing someone for life versus executing them, because then that death isn’t on them, but they don’t really think about that person rotting for the rest of their life behind bars. It wouldn’t make a difference to me which penalty the accused was up for, I’d weigh the consequences of locking someone up for life just as heavily as the death penalty. If I have enough doubt not to give them death, I have enough doubt not to give them a life sentence .
http://twitter.com/mdcdnmf Matthew

You just completely fabricated this statement “and got off because, hey since abortion is legal she shouldn’t be punished.” Abortion had nothing to do with it, research before posting your own conclusions.
http://ca.news.yahoo.com/suspended-sentence-alberta-woman-strangled-her-newborn-201529914.html
fanofgrendel

Better to hang an innocent man than let 100 guilty men go free. No, I think I got that backwards? On the other hand, everybody is guilty of something.
http://pulse.yahoo.com/_VYUK3HIJFCPFBZUHRHN6HCR5AA MarkfromSavannah

Not very helpful Redleaf especially when mention is made of a case so polarizing to the community here in Savannah.
http://pulse.yahoo.com/_VYUK3HIJFCPFBZUHRHN6HCR5AA MarkfromSavannah

Chris, and that’s why I hope you never get a job within the criminal justice system. Prisons have long been recognized as a place where inmates develop into bigger, stronger, and smarter criminals.
Jacobjakeu

I wonder if Perry will say it’s okay to have an abortion if the fetus committed first-degree murder?
Gralphbarke

If this is true>> Troy Davis, Atlantis, death penalty,
may have came by police enticement , to get a conviction, and they did, but then that would mean the police were
responsible for that bad act, so every police involved in this matter should be
sent to prison for negligence homicide.
Davis is scheduled to die in hours from now and it’s 20 to 6 p.m. September
20, 2011, this was stated on National News NBC, CBS, ABC. FOX News, etc. I don’t know what kind of gutless society we
live in today, but I would never think such a question could ever be a
question to be asked about the death of
a innocent individual, and talk as though it’s just some great PR, the circus
status quo<<< Besides, nowadays with this statement that's been made on National TV, for a long time and it's where they say the Supreme Court claimed that the Judicial System in the U.S.A. today is corrupt from the bottom up… and it's been said over and over in the past two years now, and that initself is alarming…..
Gralphbarke

The power, thus construed to be in a court, or indeed in the hands of one man, to accomplish such an act as this without any review or possibility of review and without any words in the Constitution conferring it, is so exorbitant and unprecedented that it needs no argument to demonstrate that it ought not to be tolerated, and can not safely be permitted to continute. It’s We the People … not we the government<<<
kamo

Loss of human life is terrible,More terrible is to punish someone innocent.
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