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Post Partisan
Posted at 02:30 PM ET, 09/22/2011

Troy Davis: guilty as charged


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.

How can I be so sure? After all, former President Jimmy Carter, Pope Benedict XVI, and former FBI director William Sessions backed Davis. Prosecution witnesses have recanted their testimony; scant physical evidence tied Davis to the crime. 

But it’s one thing to argue your case in the court of public opinion; it’s quite another to do so in a real court, with sworn testimony offered and cross-examined by both sides.

And when Davis had that opportunity, in a special hearing last year ordered by the Supreme Court, the judge rejected his claim, declaring flatly that “Davis is not innocent.”

This saga began the night of August 19, 1989, in Savannah, Georgia. Police officer Mark MacPhail, moonlighting as a Burger King security guard, rushed to break up a mugging in the parking lot. When the ensuing clash ended, MacPhail lay mortally wounded by gunfire.

A number of witnesses identified Davis as the man who stood over MacPhail and fired twice before fleeing. Based on that testimony, a jury of seven blacks and five whites convicted him and sentenced him to death in 1991.

Davis admitted being at the scene; but he insisted that someone else pulled the trigger. In the years since his 1991 trial, he has submitted affidavits from seven witnesses who inculpated him at trial but later said their testimony was either mistaken or coerced by the police.

Davis’ appeals, state and federal, failed – until August 2009, when the Supreme Court handed him a dramatic victory. Citing a “substantial risk of putting an innocent man to death,” the court overrode usual limits on death-penalty appeals, granted a stay of execution and ordered a federal court in Georgia to weigh Davis’ evidence of innocence.

Chief Judge William T. Moore of the U.S. District Court in Savannah, an appointee of President Bill Clinton, convened the hearing in June 2010 -- whereupon Davis’ case crumbled. Much of his “new” evidence had already been heard by the original trial jury. Some of his witnesses fared badly on cross-examination, while prosecution testimony stood up.

Davis’ lawyers declined to put two of Davis’ purported recanting witnesses on the stand, though they were available – one even waited outside the courtroom. Judge Moore quite logically found these omissions “suspicious.”

Davis’ lawyers did not call the “real” shooter; nor did Davis, with his life on the line, testify. Perhaps this reflected his experience at trial, where he told his story to the jury, and the jury did not believe it. 

In August 2010, Moore issued a 174-page ruling, in which he picked apart Davis’ factual claims one by one, concluding, “The vast majority of the evidence at trial remains intact.”

Davis’ supporters say Moore unfairly required Davis to present “clear and convincing” proof of innocence, a high standard. But Moore’s emphatic findings implied Davis’s case wouldn’t have passed any test; it was, the judge wrote, “largely smoke and mirrors.”

I believe Moore because he is an impartial authority who reviewed all the evidence in an appropriate forum – and for whom a ruling against Davis was not necessarily the path of least resistance. No one in Moore’s position would want an innocent man’s death on his conscience if he could avoid it at all. The Supreme Court’s unprecedented intervention signaled it wanted federal courts to go the extra mile to avoid a wrongful execution. Certainly Moore would have been a judicial hero in many quarters if he set Davis free.

But Moore did what he thought was right -- and the Supreme Court, in deference to the judge’s mastery of the facts and law, unanimously declined Mr. Davis’ appeals in March.

The Davis case does raise legitimate questions. Should authorities have even sought the death penalty in this case? Though undeniably senseless and cruel, the murder of Mark MacPhail was an unplanned act against a single victim. As I have argued elsewhere, such offenses do not rank among the special crimes – mass murders, for example, or terrorism – for which the death penalty should be reserved.

Among its other benefits, limiting the death penalty more strictly to the “worst of the worst” would shrink the risk of executing an innocent man.

But that didn’t happen in this case. To insist otherwise is to insist that all the jurors, courts and other official bodies that gave Troy Davis due process of law for 22 years were wrong, and only Davis was right. And that is not a reasonable doubt.

More from PostOpinions

Robinson: ‘Probable’ guilt doesn’t justify execution

Parker: Why wasn’t doubt enough to save Troy Davis?

Petri: Troy Davis and the death penalty roar

By  |  02:30 PM ET, 09/22/2011

 
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