Scalia, Thomas not bothered if the innocent are executed

[Cain]

Oh, sure, complain about the "innocent." I'm sure you'd also refuse to strip search 13 year-olds in spite of reports they're carrying ibuprofen.

 

[JoeTheJuggler]

This is the first I've heard there was any physical evidence.

At any rate, even if the facts in this case might not favor this convict being able to reverse his conviction or somehow get out of the death penalty, the larger point remains: would you refuse to even look at new evidence that might exonerate someone on death row?

I'm pretty sure Scalia and Thomas' opinion wasn't based on the merits of the new evidence or how strong it is relative to the original case made by the prosecution. They don't even want any court to consider the new evidence.

 

[Alt+F4]

At any rate, even if the facts in this case might not favor this convict being able to reverse his conviction or somehow get out of the death penalty, the larger point remains: would you refuse to even look at new evidence that might exonerate someone on death row?

I'm pretty sure Scalia and Thomas' opinion wasn't based on the merits of the new evidence or how strong it is relative to the original case made by the prosecution. They don't even want any court to consider the new evidence.

I'm certainly no fan or Scalia or Thomas but in this particular case there is no compelling evidence that the defendant was denied a fair trial. As I mentioned in a previous post this case has been reviewed dozens of times by both state and federal courts.

 

[JoeTheJuggler]

I'm certainly no fan or Scalia or Thomas but in this particular case there is no compelling evidence that the defendant was denied a fair trial. As I mentioned in a previous post this case has been reviewed dozens of times by both state and federal courts.

But that's not the issue. Scalia & Thomas are saying, since the guy got a fair trial, we refuse to look at new evidence even if it would prove his innocence. All that matters is that there was nothing about the trial that can be appealed. They would presumably put the guy to death even if the new evidence were exculpatory.

Again, from the NY Times article quote of the opinion:

“This court has never held,” Justice Scalia wrote, “that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

I find the scare quotes on "actually" to be perplexing. If you don't allow an evidentiary hearing, how do you know whether or not the evidence is "compelling" in proving the guy's innocence? In fact, in this case, you would have to convince a habeas court that he is actually innocent.

 

[skeptical]

This is an intriguing case. On first impression, it looks like Davis got a raw deal. I'm always bothered by cases that have no physical evidence (although it appears there was some in this case), and I am especially bothered by DP cases where the principal or sole evidence is inherently flawed eye witness testimony.

However, the DA does make some good points in that the recantations appear to have happened years after the fact, which always makes me suspect "buyers remorse". He also makes a good point about the parole board reviewing the case in 2007, although I would like to know the board's standards for granting clemency and the number of times it has done so. Just because a board can grant clemency doesn't mean it will.

On the flip side, having read accounts of copious criminal trials, I know how often and easy it is to get people to claim to see things that they didn't see, and I know how incompetent or just plain overworked PD's can be. That might explain the lag in recantations, perhaps Davis just didn't have good lawyers involved until later in his appeals.

Doing some browsing, the shell casing evidence seems strong, but is it as good as having the actual bullet? Don't know, but it appears that many cases rely on the casings.

So, on balance I tend to agree with Alt+F4, Davis is probably guilty. But, I'm ok with having another court review this to make sure, this is the DP we're talking about.

 

[Brown]

I've already referred to the movie "The Fugitive" to illustrate some points. In this post, I refer to the classic movies "Dial M for Murder" and "Dr. Strangelove."

After a conviction, it is quite common for witnesses to change their stories. This is mentioned as a dramatic point in "Dial M," and the point is valid. The fact that "seven of the State's key witnesses have recanted their trial testimony [and that] several individuals have implicated the State's principal witness as the shooter" (from Justice Stevens's opinion) does not make this case exceptional. Justice Stevens notes, however, that there is quite a bit of additional evidence that has not been considered by ANY tribunal yet, and if this evidence is reliable, it would indicate that the convict really didn't do it.

These things, taken together, suggest that the evidence at least ought to be considered and evaluated. (They do NOT suggest that the convict ought to be let go.)

Unspoken might be the notion that "justice" in the South has a shameful history of being notoriously unjust for those who have little money and/or have skins of darker shades. (In recent days, the town of Tulia, Texas, provided a rather shameful display of this principle.)

Justice Scalia has several legitimate concerns in that you can't let convicts keep trying to be retried after a conviction. Convicts as a rule file court documents professing to show their innocence on legal or factual grounds, but often their dominant motivation is to waste time and money. They do it for sport.

Justice Scalia assumes that this case is another one of these wasteful ones. (And it may well turn out to be.) But Justices Stevens, Ginsburg and Breyer say, not so fast. The stakes are such that an innocent man might be put to death.

I do not take too much issue with Justice Scalia's opinion in that the consideration of this evidence is "a fool's errand." It is hard to imagine what sort of evidence might possibly be considered that would lead the lower court to say that the convict didn't commit the shooting. Chances are, the conviction will be upheld.

What is stunning, though, is Justice Scalia's assertion that EVEN IF the convict didn't do it, even if an innocent man is to be put to death by a State, the federal court cannot correct that error.

In "Dr. Strangelove," Group Captain Mandrake discovers that his commanding officer, General Ripper, has apparently ordered an attack on the Soviet Union by mistake. Confronting Gen. Ripper with the evidence, and requesting that the attack be called off, Mandrake is stunned to hear the general say: "My attack orders have been issued, and the orders stand."

"Well, if you'll excuse me saying so, sir," replies Mandrake with his British tone of understatement, "that would be, to my way of thinking, rather ... well, rather an odd way of looking at it."

This is comparable to Justice Stevens's point of view. The order for execution has been lawfully given, and even if the order is 100 percent in error, Justice Scalia seems to think that the order should stand. To the other justices, that seems to be rather an odd way of looking at it.

 

[Alt+F4]

These things, taken together, suggest that the evidence at least ought to be considered and evaluated. (They do NOT suggest that the convict ought to be let go.)

It has been, many times. Please read this link.

http://chathamcounty.org/Chatham/Davis___Media_Statement___Recover___REVISED_2_____10_OCT_08.pdf

Unspoken might be the notion that "justice" in the South has a shameful history of being notoriously unjust for those who have little money and/or have skins of darker shades.

In this partictular case the defendant was African-American as was 7 of the 12 members of the unaimous jury who found him guilty of murder and multiple assults on other persons.

Justice Scalia has several legitimate concerns in that you can't let convicts keep trying to be retried after a conviction.

17 years after the trial 7 of the 9 recanted. What would you think?

 

[shuize]

These things, taken together, suggest that the evidence at least ought to be considered and evaluated. (They do NOT suggest that the convict ought to be let go.)

As noted above, the evidence was considered and evaluated. From the District Attorney's statement linked above:

The first time any of the "recantations" were presented was in state habeas. That means they were reviewed by one judge and then the seven Georgia Supreme Court justices on appeal from denial of habeas relief. Then they were reviewed in federal habeas by one judge and then by the three Eleventh Circuit judges on appeal. Then they were reviewed in cert petition form by nine Supreme Court justices. Then they were reviewed by the trial judge during the extraordinary motion for new trial and then by seven justices of the Georgia Supreme Court ... 29 judges in seven different types of review, over the course of 17 years ....

In addition, according the District Attorney, most of the affidavits the convicted defendant relies on were in their possession as far back as 2003 but not all were used. If true, that strikes me as if they were trying to game the system by holding back some "new exculpatory evidence" to drop on the Court just a few days before the execution.

http://chathamcounty.org/Chatham/Davis___Media_Statement___Recover___REVISED_2_____10_OCT_08.pdf

 

[Yoink]

As noted above, the evidence was considered and evaluated. From the District Attorney's statement linked above:

In addition, according the District Attorney, most of the affidavits the convicted defendant relies on were in their possession as far back as 2003 but not all were used. If true, that strikes me as if they were trying to game the system by holding back some "new exculpatory evidence" to drop on the Court just a few days before the execution.

http://chathamcounty.org/Chatham/Davis___Media_Statement___Recover___REVISED_2_____10_OCT_08.pdf

The DA thinks he's guilty? The hell you say!

I'd take anything said by the DA with several spoonsful of salt (as, for example, his repeated claim that there is in fact physical evidence--when you dig into that it turns out that there is evidence that may link the police officer's murder to an earlier shooting--but that there is no evidence linking that earlier shooting to Davis; or the repeated claim that the officer "rushed past" the other possible suspect--a claim that is only based on the very eyewitness testimony that is in question).

This is a deliberately one-sided account of the case.

 

[I Ratant]

As long as the letter of the law can be rationalized, expecting Scalia and Thomas to behave normally as decent human beings is beyond them.
They worship the words, and only the words.

 

[shuize]

This is a deliberately one-sided account of the case.

Right. The one that supports the jury verdict. Oh, I forgot. That doesn't count. Not when there's "new evidence." "New evidence" that almost thirty federal and state judges considered and found insufficient.

But hey, give him another hearing. And when the "new evidence" is again found wanting, all his supporters can cry about how "one-sided" the whole thing was.

 

[Yoink]

Right. The one that supports the jury verdict. Oh, I forgot. That doesn't count. Not when there's "new evidence." "New evidence" that almost thirty federal and state judges considered and found insufficient.

But hey, give him another hearing. And when the "new evidence" is again found wanting, all his supporters can cry about how "one-sided" the whole thing was.

So your argument is that if one is looking for the most even handed account of a criminal case the person to look to is the prosecuting DA. Seriously?

 

[shuize]

So your argument is that if one is looking for the most even handed account of a criminal case the person to look to is the prosecuting DA. Seriously?

Are you suggesting the convicted defendant facing the death penalty? Yeah. I'm sure he's way more credible ...

Start with what was proven at trial. Since that's the evidence which was subject to cross-examination and convinced a jury beyond a reasonable doubt. It's also the standard all those "one-sided" federal and state judges measured the "new evidence" against and found wanting.

Or are you saying the D.A. was lying about the convicted defendant's repeated bites at the appellate apple? Those appellate reviews never happened after all? Or, maybe they did happen and the nearly thirty appellate judges all agreed with Davis, but the sneaky D.A. has managed to keep him in prison anyway. Oh my God! What a travesty!

Attica! Attica! Attica!

 

[Yoink]

Are you suggesting the convicted defendant facing the death penalty? Yeah. I'm sure he's way more credible ...

Start with what was proven at trial. Since that's the evidence which was subject to cross-examination and convinced a jury beyond a reasonable doubt. It's also the standard all those "one-sided" federal and state judges measured the "new evidence" against and found wanting.

Or are you saying the D.A. was lying about the convicted defendant's repeated bites at the appellate apple? Those appellate reviews never happened after all? Or, maybe they did happen and the nearly thirty appellate judges all agreed with Davis, but the sneaky D.A. has managed to keep him in prison anyway. Oh my God! What a travesty!

Attica! Attica! Attica!

You sound very calm and rational.

 

[Skeptic Ginger]

I'm certainly no fan or Scalia or Thomas but in this particular case there is no compelling evidence that the defendant was denied a fair trial. As I mentioned in a previous post this case has been reviewed dozens of times by both state and federal courts.

That's BS. There is plenty of evidence the defendant was not represented at all during the window he had to file some of the appeals.

It is pretty clear that money gets you off of murder convictions (see the OJ trial) and poor people get the shaft (see the innocence project records on the countless men they have found exonerating evidence for). So we should at least be able to agree this guy in no way got a fair trial.

Now as for the supposed forensic evidence, so far you have linked to the DA's testimony and a couple reports echoing that testimony. I linked to a number of reliable sources who state there was no physical evidence and one source suggesting casing markings are about as reliable as hair evidence. IE the evidence can be consistent but is not conclusive.

At least dig up for us the court records showing this other conviction for a shooting earlier in the night. That is not something I've seen referred to anywhere except your links to the DA's personal statement.

I'm willing to consider Davis is not the victim he appears to be, but certainly not on the mere word of the DA who of course is convinced Davis is guilty.

 

[Skeptic Ginger]

...

However, the DA does make some good points in that the recantations appear to have happened years after the fact, which always makes me suspect "buyers remorse"......

Don't overlook the fact most of the witnesses at first couldn't say they saw Davis and later said they did. That is more telling, IMO, than the buyer's remorse you suggest.

 

[Skeptic Ginger]

....
What is stunning, though, is Justice Scalia's assertion that EVEN IF the convict didn't do it, even if an innocent man is to be put to death by a State, the federal court cannot correct that error. .......

Which makes one wonder just what Scalia and Thomas think the word, justice, actually means.

There are plenty of cases where appeals are not justified. But there are numerous examples where the actual evidence clearly outweighs the jury's opinion. It is the latter where a judge needs the right to exercise an intelligent assessment of the evidence and not just say the jury is the ultimate decider as long as the technicalities have been met. It appears to me that Scalia and Thomas think their job is merely to rule on the technicalities and tough tiddly winks if the defendant didn't play the legal game with the proper skill.

 

[Skeptic Ginger]

Are you suggesting the convicted defendant facing the death penalty? Yeah. I'm sure he's way more credible ...

Actually, I'm going by the fact DNA evidence has exonerated way more than just a couple of falsely convicted murderers. That suggests cases such as Davis' which are based almost exclusively on eyewitness testimony are too unreliable to base an execution on.

They are probably too unreliable to base a conviction on, but definitely too unreliable to execute someone on.

 

[shuize]

You sound very calm and rational.

I am. The Attica chant was a joke for people who seem to think a D.A.'s statement outlining facts proven at trial beyond a reasonable doubt and then upheld by nearly 30 state and federal reviewing judges somehow amounts to a "one-sided" version of events.

 

[Alt+F4]

That's BS. There is plenty of evidence the defendant was not represented at all during the window he had to file some of the appeals.

Not true. He was convicted in 1991, his first appeal was rejected in 1993. He was represented by the The Georgia Resource Center, which is "a non-profit law office with a national reputation for innovative, spirited and unrelenting representation of its death-sentenced clients." He was also at one time represented by attorney Tom Dunn. Who do you think filed all his appeals?

It is pretty clear that money gets you off of murder convictions (see the OJ trial) and poor people get the shaft (see the innocence project records on the countless men they have found exonerating evidence for). So we should at least be able to agree this guy in no way got a fair trial.

He was convicted by by a jury consisting of seven blacks and five whites. Do you have evidence that he was convicted because he was poor? Even his own lawyers didn't pull that on appeal, instead they argued there were too many black men on the jury.

Now as for the supposed forensic evidence, so far you have linked to the DA's testimony and a couple reports echoing that testimony. I linked to a number of reliable sources who state there was no physical evidence and one source suggesting casing markings are about as reliable as hair evidence. IE the evidence can be consistent but is not conclusive.

Again, the gun used to shoot Michael Cooper was the same gun used to murder Officer MacPhil. Even Davis' defenders aren't denying this.

At least dig up for us the court records showing this other conviction for a shooting earlier in the night. That is not something I've seen referred to anywhere except your links to the DA's personal statement.

On August 28, 1991, a jury found Davis guilty of one count of malice murder, one count of obstruction of a law enforcement officer, two counts of aggravated assault and one count of possession of firearm during the commission of a felony.

I'm not suprised that Troy Davis fan sites forget to mention his convictions for shooting one a man in the face and pistol-whipping another one.

I'm willing to consider Davis is not the victim he appears to be, but certainly not on the mere word of the DA who of course is convinced Davis is guilty.

I think it's only proper that a DA be convinced the person he or she prosecuting is guilty. He's more reliable than Davis (aka "Rough As Hell").

Those opposed to the death penalty would do better in their struggle if they just admitted that Davis is guilty as hell but still doesn't deserve the death penalty.

Link for info on the other convictions:
http://law.ga.gov/00/press/detail/0,2668,87670814_87670929_121231342,00.html