Mark MacPhail and Troy Davis, R.I.P.

“I have had faith all this time in the system we have, I think you have to.”

— Sgt. David Owens, first officer on the scene of the 1989 murder of police officer Mark MacPhail

 

The government killed Troy Davis Wednesday night.

But before we get to the controversy surrounding Troy Davis’ death, let’s look at the man he was convicted of killing in 1989: Mark MacPhail.

The son of an Army colonel, Mark MacPhail joined the military and became an Army Ranger.  After marrying, after a life of moving around, he decided to leave the Army and settle down.  He eventually became  a Savannah police officer.  He was 27 in 1989, with a 2-year-old daughter and a weeks-old son, which he worked two jobs to support. It was his second job—working security at a Greyhound bus terminal connected to a Burger King—that put him in harm’s way in the early morning hours of August 19.

MacPhail heroically intervened in the pistol-whipping of a man in the Burger King parking lot and was shot—executed really—and Troy Davis was convicted in 1991 of his murder, by a jury of seven blacks and five whites, who deliberated for less than two hours. 

Davis has always proclaimed his innocence, as he did on Wednesday night just before the state of Georgia killed him:

I’d like to address the MacPhail family. Let you know, despite the situation you are in, I’m not the one who personally killed your son, your father, your brother. I am innocent. The incident that happened that night is not my fault. I did not have a gun. All I can ask … is that you look deeper into this case so that you really can finally see the truth. I ask my family and friends to continue to fight this fight. For those about to take my life, God have mercy on your souls. And may God bless your souls.

Now, I don’t claim Troy Davis was innocent.  And I’m not going to claim that the death penalty is immoral.  But in my mind this case is not so much about the innocence or guilt of Troy Davis or even the death penalty.

It is about the quality of the American justice system and how we define that quality.

The doubts, some reasonable and some not, surrounding this case are significant.  And the mere fact that the U. S. Supreme Court gave Davis a rare chance in 2009 to “prove his innocence,” tells me that there is no way the government should kill a man when so much doubt exists.

The Innocence Project has noted that there have been 273 “DNA exonerations” since science gave us a trustworthy tool to help administer justice.  Of those exonerations, 17 of them were of convicted killers who sat on death row.  Unfortunately, DNA evidence is present in only 5% of criminal cases, says Barry Scheck, a director of the Innocence Project. 

Thank about that.  If only 5% of the cases are subject to DNA examination, and if there have been 273 mistaken convictions that were overturned by DNA evidence, how many other innocent people have been convicted of crimes in our justice system?

In the Troy Davis case, there was no physical evidence linking him to the crime, so DNA science was of no help.  There were, though, eyewitnesses.  And seven of them have in one way or another recanted their testimony.  Scheck points out that,

Misidentification was a factor in 75% of the 273 DNA exonerations. In 38% of these mistaken identification cases, multiple eyewitnesses misidentified the same person.*

Anyone who has ever cracked a book on human psychology or has had to prepare any type of case based on eyewitness testimony, understands the unreliability of eyewitness accounts.  So, it’s not that hard to believe that people would recant their testimony after some time has passed, and it’s not that hard to believe that those people could have been mistaken at the time of their original testimony.

Which is why I will claim, apart from any argument about the death penalty per se, that it is immoral for the government to mix up a chemical soup and kill a man under circumstances like those present in the Troy Davis case—even if he did kill Mark MacPhail.

A decent respect for our system of justice should compel us to avoid as much as possible making irreversible mistakes.  No prosecutor, no judge, no jury, can resurrect Troy Davis from the dead some years from now, should some evidence surface—as it has in many other cases—that he was in fact innocent. 

Spencer Lawton, the district attorney who secured Davis’ conviction in 1991, said he was embarrassed that the execution has taken so long:

“What we have had is a manufactured appearance of doubt which has taken on the quality of legitimate doubt itself. And all of it is exquisitely unfair,” said Lawton, who retired as Chatham County’s head prosecutor in 2008. “The good news is we live in a civilized society where questions like this are decided based on fact in open and transparent courts of law, and not on street corners.”

Who would disagree with that?

But I would guess that every prosecutor who managed to get guilty verdicts in those 273 cases that DNA evidence later overturned also believed those cases were “decided based on fact in open and transparent courts of law.”

The point is that if there is physical evidence to test, science can help us determine what the facts really are in cases like the murder of Mark MacPhail. And whatever one thinks of the morality of the death penalty, if there is no physical evidence—if we are relying merely on circumstantial evidence and error-prone eyewitness accounts—the government should not be in the business of pre-meditated killing.

_____________________________________________

* Amazingly, according to the Innocence Project:

False confessions and incriminating statements lead to wrongful convictions in approximately 25 percent of cases.  In 35 percent of false confession or admission cases, the defendant was 18 years old or younger and/or developmentally disabled. Twenty-two of the first 265 DNA exonerees pled guilty to crimes they did not commit…Informants contributed to wrongful convictions in 19 percent of cases.

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21 Comments

  1. I absolutely agree with you! As long as people keep on having a problem with “innocent people” being executed the problem will stay. That is not the problem, just a part of it. The problem is as you say – HOW justice is made.
    Thanks for your writing.
    Maggie

    Like

  2. Duane,

    You provide an excellent analysis of the issue here.

    The point about the unreliability of eyewitnesses has been demonstrated many times, including video clips in which an audience is challenged to identify a person from a lineup. The error rates are always very high when similar-looking persons are in the lineup. In cases like this I am always reminded of a classic 1956 Hitchcock film, “The Wrong Man”, starring Henry Fonda and Vera Miles. It was, uncharacteristically for Hitchcock, based on a true story, one which was changed little in the film. Fonda is mistaken in the plot for the real criminal who looks much like him.

    Link to the film: http://en.wikipedia.org/wiki/The_Wrong_Man

    The principal argument in my mind for retaining the death penalty is its value in plea bargaining to avoid lengthy, costly and uncertain trials. However, that argument is weakened by your point that 22 of 265 exonerees pled guilty to crimes they didn’t commit. Being familiar with sleep deprivation and knowing the effect of isolation in interrogations I can easily see how that can happen, particularly with young or weak-minded suspects.

    If there is any good news about the issue, I submit it is the ubiquity of video evidence from surveillance cameras and cell phones. This was the case when two police officers in California beat a homeless schizophrenic man to death and were just charged with his (2nd degree) murder.

    The thought of executing innocent people is abhorrent, but then so are some crimes which appear to warrant the death penalty. Under the present system, I would agree that the death penalty should be abolished, but how about an alternative? Why not prohibit imposing it in cases where the only substantial evidence is eyewitness testimony? In other words, require material evidence such as DNA and/or video?

    Rowan Ford. RIP

    Jim

    Like

    • Jim,

      I agree that at a purely visceral level, some cases to cry out for the death penalty. And although I am conflicted about the morality of the death penalty per se, I do believe that at a minimum, we should not be killing anyone unless the evidence is scientifically irrefutable.(Sometimes even video can mislead.) I would also make an exception where there is a combination of a genuine confession–one in which has not been recanted–and other supporting evidence.

      Other than that–and those are rare cases for sure–I am totally against it.

      Duane

      Like

  3. ansonburlingame

     /  September 22, 2011

    There for sure are “holes” in the American justice system, big holes.

    The one that concerns ME the most is inequality of representation, regardless of the crime, but particularly when the crime is a major crime.

    OJ is the first one to jump to mind where a “killer” was exonerated because he had the money to pay for a huge and very capable defense team. Usually the “state” has the money and power to “steamroll” the defense particularly in manpower for investigations. Had OJ been a “poor man or even just middle class” he would not have stood a chance.

    By the same token how many convictions have been overturned later because of inadequate defenses, usually from a public defender. Or the infamous Erma France case in Joplin where a public defender did a terrible job representing that older and “poor” lady who then lost her freedom. Terrible at all levels.

    Every man, woman and child needs the best possible defense in criminal (and civil for that matter) cases. But we are far from such utopia. Why?

    To a degree is it not “greedy attorneys” that will only take the big money cases???? That would be like a doctor only treating “rich” people.

    But despite our quest for utopia in justice, I don’t know of any other system as good as ours either.

    When the innocence are executed, well that is terrible. But then again just how many cold blooded killers have gone free on “technicalities”. Society suffers in both cases. And when such cold blooded killers go free and then kill again, well……?

    Anson

    Like

    • Anson,

      A rare agreement between us. Money is the biggest factor in disparate justice claims here, and I suppose, everywhere. And it shouldn’t be that way, as you say.

      There is, though, one way to help mitigate things, which you won’t like: Put more money into the public defender programs around the country. Those lawyers are overworked and undercompensated, and that’s because we don’t put enough money toward the defense of the indigent. It’s a shame and it disgraces our justice system, no matter how one grades it.

      Your point about OJ is the perfect one to make in this case. Money means more than race in this country, as a factor in how justice is doled out.

      Duane

      Like

  4. “The one that concerns ME the most is inequality of representation, regardless of the crime, but particularly when the crime is a major crime.”

    I solidly agree.

    “By the same token how many convictions have been overturned later because of inadequate defenses, usually from a public defender.”

    It does happen, but more often than not it happens because of improper search and or seizure by law enforcement agents, inadequate evidence, mishandling of evidence such as in the OJ Simpson trial (he did it!), and impeachment of witnesses to name a few.

    “To a degree is it not “greedy attorneys” that will only take the big money cases????”

    Remember Anson, prosecutors are also lawyers, with possible exception that their political egos’ outweigh their desire for financial gain.

    Duane

    Before going any further I have to admit to being one of those who are against capital punishment (although I make exceptions for murderous pedophiles). The only way that one human can execute another is by tapping into the same “inner devil” that drives some to murder. To me it’s like raping a raper to exact punishment. Where does one prove to be more civilized that the other?

    Like many on the left and perhaps a more than a few on the right, I signed a petition to save Troy Davis’ life for all the reasons you so clearly outlined above. HLG

    Like

    • I called the Chatham County DA’s office to voice my opinion against his execution.

      I support capital punishment, but definitely not in this case.

      Like

    • HLG,

      As I wrote to Jim, I am conflicted about the morality of the death penalty in the worst cases. For instance, here in Southwest Missouri we have the rape and murder of 9-year-old Rowan Ford, whose killers have not been brought to justice or even have had a trial, even though years have passed. I would not hesitate to insist that upon a conclusive conviction, her killers be executed. But I’m not proud of that emotion, for the reason you so eloquently wrote:

      “The only way that one human can execute another is by tapping into the same “inner devil” that drives some to murder.”

      I’m afraid you’re right about that.

      Duane

      Like

  5. ansonburlingame

     /  September 23, 2011

    To all,

    Surprise! Some room for agreement between HLG and me!

    Let’s look at the situation today in terms of inequality of justice and inequality of health care. In both cases the “rich” get better justice and HC.

    Liberals have been raising unmitigated hell over HC for ??? years now. But I hear not a peep out of them for JUSTICE of the legal sort based on money spent by citizens for justice. Why not some kind of legal reform akin to Obamacare or a “single payer” justice system!!!

    There is a Constitutional responsibility for the federal government to ensure JUSTICE, equal JUSTICE, under the LAW which is the primary perview of ANY government.

    Now go find the Constitutional responsibility of HC. It is NOT THERE, Constitutionally.

    Sure it would be great to have BOTH, equal justice and equal HC with the absolute BEST of both. A Johnny Cocran for all defenders and a preiminant physician of all the patients needing medical care.

    But we cannot possibly have BOTH or even come close to such.

    So take your pick, Justice or HC. I know where liberals put their money today. It is on HC including this lame attempt at single payer HC today.

    Wonder when I might see the same call for JUSTICE from you guys!!!

    Anson

    Like

    • Anson,

      Because you don’t get around much, perhaps you don’t know that there are folks worried about inequality in our justice system. The ACLU last month released a report on the lack of equal justice in Utah, as just one example.

      People on our side are fighting for justice, but their voices are drowned out by the enormous influence of the conservative media in this country.

      Duane

      Like

    • “Why not some kind of legal reform akin to Obamacare or a “single payer” justice system!!!”

      Alright Anson, I’m for it; although, first we have to fix “Obamacare” to be more just.

      “Now go find the Constitutional responsibility of HC. It is NOT THERE, Constitutionally.”

      Not to be put off by your other more positive statements regarding inequality and legislating legal services to the level of “Obamacare.”
      I do however have one question? Could you describe the Healthcare systems that existed in 1776, that our forefathers were to base constitutional healthcare legislation on? That might help to answer your question!

      “Sure it would be great to have BOTH, equal justice and equal HC with the absolute BEST of both.”

      Can you see a reason why there can’t be equality of both beyond profit motivation? Should the lives of humans be subjected to “greenbacks.” Wouldn’t it more humane (Jesus like if you will) if we insured that the least of us, can depend on the best of us, where they’re defenseless? All men are perhaps, “created equal in the eyes god,” but in the real world, some of us are more equal in both faculty of mind and body. Now tell me! How do we reconcile that difference but for inequality?

      Like

      • ansonburlingame

         /  September 24, 2011

        HLG,

        There really is a very simple answer to you question related to how to achieve real equality. It cannot, repeat cannot be done by government, period.

        Government can only “pick around the edges” in such matters through the force of law. Murder is well defined or “murder is murder” under the law. No question about that point.

        But OJ was exonerated as a murderer, which you and I seem to agree he actually was, a murderer. Now how does government fix that little problem? Someone else is found guilty of murder but was innocent? How does government fix that little problem? And which is worse in terms of basic inequality when the whole system runs on money, like it or not.

        Remember de Toucville talking about the downfall of America in its neverending quest for equality. For me the best government can do is provide a system for equality of opportunity to do your best to become unequal (in terms of money or “status”). The outcome of such a quest must be left to PEOPLE, individual people.

        there is your American dream, a dream that has astounded the world in terms of success for over 200 years. And you want to trash it today all for equality in outcome.

        Anson

        Like

        • “There really is a very simple answer to you question related to how to achieve real equality. It cannot, repeat cannot be done by government, period.”

          Throughout American history, the government is the only institution that’s been able to effectively reduce inequality.
          If it were left in the hands of big business or “WASP’s,” the word inequality would’ve been stricken from the American Lexicon a long time ago.

          “Government can only “pick around the edges” in such matters through the force of law. Murder is well defined or “murder is murder” under the law. No question about that point.”

          Martin Luther King would’ve died still fighting for civil rights but for the government. Remember, that every freedom achieved by man ultimately had to be ratified through government or its courts. Name one law that wasn’t put into place by our government or a governmental agent.

          Alexis de Tocqueville’s views offer nothing to this debate. Some of his ideas were rather liberal and made sense, but if his views were enforced today, South Africa would still support apartheid, and the Jim Crow laws would still be in effect today.

          We can’t build a future out of the ignorance of the past. We’re expected to learn from past histories and philosophies, not blindly follow them.

          Like

          • ansonburlingame

             /  September 25, 2011

            Holy Cow, Now you want to argue about Africa!!! Can we stick to the U. S. with OUR principles. And just how EQUAL might Africa be today. Ask the Hitus or Titus or whatever. Ask what remains of white settlers in N.. whatever!

            Did Martin Luther King or government FIX equality? Look where we are today on such matters, black and white matters. Jim Crow today? Are you kidding me. Do you really think the KKK would rule supreme in the South today. Hells bells it was merely a small group of crazies when I lived in the South in the 40s and 50s, long before MLK. I thought they were jerks and crazies then as well as now and MLK had nothing to do with such personal sentiments then or now.

            Like

            • “Did Martin Luther King or government FIX equality? Look where we are today on such matters, black and white matters.”

              Brown vs The Board of Education of Topeka 1954.

              How about the Civil Rights Act of 1964 which overruled the Jim Crow Laws?

              http://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964

              Want more? I can cite dozens of examples including women’s rights.

              “Are you kidding me. Do you really think the KKK would rule supreme in the South today.”

              The majority of southern whites were against equality.

              Like

  6. ansonburlingame

     /  September 23, 2011

    OMG, Diunae

    Show me any blog that you have written calling for a new government approach for truly equal justice, legally. I mean OJ like defenses for everyone. I haven’t even read a blog of yours, ever calling for “doing something” about public defenders in general.

    sure you squack (spl?) about individiual legal cases from time to time. But you sure don’t approach the equality of justice in a comprehensive manner.

    But I cannot count the number of your blogs on equality of HC.

    And don’t you dare blame the conservative media for that failure. They don’t talk about it either, really EQUAL justice in terms of the quality of one’s defense against the State. Even if you found the money to put “Johnny Cocran” in every Public Defenders office there is no equality in the investigative powers of the State (called police). So now we need a “defenders police force” along with top notch and low paid public lawyers.

    Ha!! Talk about windmills.

    How about this statistic, HLG. We all agree (sort of) that about $2.5 Trillion is spent on HC today in America, right.

    I wonder what that number would be for “JUSTICE” meaning police, prosecutors, defense lawyers, private investigators, etc. Then add in the $ Billions upon Billion in “civil matters”.

    If we spend 20% of GDP on HC I wonder what we spend as a percentage of GDP on “JUSTICE”?

    NOW, which is the bigger problem, particularly for the “poor” and even the middle class? Watch what happens if you ever get sued or want to sue someone and that is just a civil matter. Then get the police on your tail and see “suffering”.

    OH, did I mention the cooperation of Trial Lawyers in resolving thi

    Like

  7. ansonburlingame

     /  September 23, 2011

    My appologies,

    Word press got “stuck” and I had to post the above without spell checking it Duinae or whoever.

    But I am sure you can complete my last paragraph for me.

    anson

    Like

  8. Somebody certainly needs to connect and correct everything you try to write.

    Like

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