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Thursday, September 22, 2011

A Tale of Two Executions

Two men were executed yesterday. (Maybe more people were; this article won't discuss them.) You probably heard about one of them, a man named Troy Anthony Davis. In 1991, Davis was convicted of killing Savannah Police officer Mark MacPhail, who was moonlighting as a security guard at the time. According to the testimony of multiple witnesses, Davis pistol-whipped a homeless man in a Burger King parking lot and then shot MacPhail when he tried to break up the fight. As MacPhail laid bleeding to death in the parking lot, Davis reportedly walked over to him and shot him several more times before fleeing the scene. (One witness even testified that Davis "had a little smile on his face" when he shot MacPhail.) A Chatham County jury convicted Davis of murder, obstruction of a law enforcement officer, two counts of aggravated assault and possession of a firearm during the commission of a felony. He was sentenced to death for the murder.

Davis had become a cause célèbre in recent years, and not just on the Left. True, most of Davis's high-profile supporters were well-known liberals opposed to capital punishment, including Rev. Al Sharpton and his cohort Rev. Jesse Jackson, former Pres. Jimmy Carter, Archbishop Desmond Tutu, and some guy named Mike Farrell. Even the Pope personally appealed to the Governor of Georgia for clemency. But several well-known death penalty proponents–most notably former Congressman Bob Barr, former federal judge and FBI Director Bill Sessions, and former Texas Gov. Mark White–also joined the fray. (Sessions and White hold special clout with yours truly because both are Baylor lawyers who also earned their undergraduate degrees from the University.)

Speaking of Texas, I want to talk a bit about the other execution I referenced in the opening line of this column. Remember James Byrd, Jr., that black man who was chained to the back of a pickup truck and dragged to death in Jasper, Texas, back in 1998? Ever wonder what happened to the three men who were arrested, indicted and tried for Byrd's murder? Well, all three were convicted of capital murder. (Byrd's murder took place in the course of a kidnapping, making it a capital offense under the Texas Penal Code.) Two were sentenced to death. One of them, a white supremacist named Lawrence Russell Brewer, was executed by lethal injection last night in Huntsville. Did you hear about that?

I wanted to bring up these two executions for a number of reasons, but mostly because it presented the opportunity to do a small compare-and-contrast piece that touches on a slew of intriguing issues: capital punishment, due process, the writ of habeas corpus and, of course, race. That's right, race. Let me ask you something: if I were to say, about one of the aforementioned cases, “Race is everything in this case,” then which case would you guess I was referring to? The obvious answer would be the grisly killing of James Byrd, which few would argue was racially motivated. Yet a few years ago, Georgia Congressman and former civil rights activist John Lewis uttered those exact words in reference to the Davis case. The editors of the Nation (an actual magazine, I'm told) were even less subtle: "Davis is a black man convicted of killing a white police officer," they declared in a piece that will appear in the next issue, "and in Southern and Northern states alike, this fact alone will trump all others."

Never mind that seven of the twelve jurors who convicted Troy Davis and sentenced him to die were black, or that most of the eyewitnesses who implicated him in the shooting death of Officer MacPhail were black. Nope, it must be racism! Okay, okay, I'm being a tad facetious. No serious, intelligent person believes Davis was executed because of his race. Indeed, race was curiously absent from the arguments made on Davis's behalf by Reverends Sharpton and Jackson, two notorious race hustlers. Their appeal, like those made by most of Davis's high-profile advocates, centered on "serious doubts" about his guilt/innocence.

One line frequently repeated by Davis's supporters was that seven of the nine witnesses against him had recanted. That's misleading, to put it mildly. First of all, as Ann Coulter points out, "the state presented 34 witnesses against Davis -- not nine -- which should give you some idea of how punctilious the media are about their facts in death penalty cases." What's more, I don't know that seven of the witnesses against Davis actually recanted; some have merely rehashed doubts and second thoughts they had already voiced on the stand at Davis's trial 20 years ago. Darrell Collins, for example, signed an affidavit in 2002 saying police pressured him into pointing the finger at Davis. Not only did he make that same assertion on the witness stand, but according to CBS News, the "jury heard Collins back off a statement he'd given to police implicating Davis in the shooting." Another witness, Jeffery Sapp, testified at trial that Davis confessed to him just hours after shooting MacPhail. Years later, Sapp signed an affidavit saying he'd fabricated the entire confession. However, the jury knew that when they rendered their verdict. On direct-examination, Sapp acknowledged he made up part of a prior statement to police when he said Davis told him he shot the officer a second time to make sure he "finished the job." Then, under cross-examination, he admitted that he did not believe Davis when he confessed to shooting the officer. He also testified that his false statements were made for revenge due to a recent feud between him and Mr. Davis.

But wait, it gets better. Ann Coulter reports:

Among the witnesses who did not recant a word of their testimony against Davis were three members of the Air Force, who saw the shooting from their van in the Burger King drive-in lane. The airman who saw events clearly enough to positively identify Davis as the shooter explained on cross-examination, "You don't forget someone that stands over and shoots someone."

There were a couple witnesses who did genuinely recant. During the trial, Dorothy Ferrell had identified Davis as the shooter. At trial, with Davis in the courtroom, she testified that she saw him from across the street and was "real sure, positive sure, that that is him." In December 2000, she signed a handwritten statement saying she was telling police what they wanted to hear because she was on parole for a shoplifting conviction and feared returning to prison. "I don't know which of the guys did the shooting, because I didn't see that part," Ferrell wrote. Larry Young was the man assaulted in the Burger King parking lot. At trial, his testimony was used to establish that his assailant was Mr. Davis and not another man, Sylvester Coles, who Davis's defense had tried to point to as the real shooter. In his recantation affidavit, Young claimed that the police refused to allow him medical treatment and that his testimony was coerced. Like Ms. Ferrell, Mr. Young claims he testified by simply stating what the police wanted him to say.

To understand why these recantations were not enough to get Davis a new trial or at least a stay of execution, you need to know the details of the appeals process in this case. First off, Troy Davis did receive a stay of execution; in fact, he received several. The third was granted by the 11th Circuit Court of Appeals in 2008. After hearing oral arguments, they rejected Davis's appeal but graciously extended the stay for 30 days to allow Davis the opportunity to file a habeas corpus petition with the U.S. Supreme Court. This is where the case gets really fascinating for legal scholars like me: On August 17, 2009, the Supreme Court of the United States did something it had not done in nearly half a century: it sent a prisoner's petition for a writ of habeas corpus back to the federal District Court "for hearing and determination." To understand the significance of this, witness Justice Antonin Scalia's earnest dissent from the Court's opinion:

Today this Court takes the extraordinary step-one not taken in nearly 50 years-of instructing a district court to adjudicate a state prisoner's petition for an original writ of habeas corpus. The Court proceeds down this path even though every judicial and executive body that has examined petitioner's stale claim of innocence has been unpersuaded, and (to make matters worst) even though it would be impossible for the District Court to grant any relief. Far from demonstrating, as this Court's Rule 20.4(a) requires, “exceptional circumstances” that “warrant the exercise of the Court's discretionary powers,” petitioner's claim is a sure loser. Transferring his petition to the District Court is a confusing exercise that can serve no purpose except to delay the State's execution of its lawful criminal judgment. I respectfully dissent.
In re Davis, 130 S. Ct. 1 (2009) (Scalia, J., dissenting). Justice Stevens addressed his brother's arguments in a concurrence:

Justice SCALIA's dissent is wrong in two respects. First, he assumes as a matter of fact that petitioner Davis is guilty of the murder of Officer MacPhail. He does this even though seven of the State's key witnesses have recanted their trial testimony; several individuals have implicated the State's principal witness as the shooter; and “no court,” state or federal, “has ever conducted a hearing to assess the reliability of the score of [postconviction] affidavits that, if reliable, would satisfy the threshold showing for a truly persuasive demonstration of actual innocence,” 565 F.3d 810, 827 (C.A.11 2009) (Barkett, J., dissenting) (internal quotation marks omitted). The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing. Simply put, the case is sufficiently “exceptional” to warrant utilization of this Court's Rule 20.4(a), 28 U.S.C. § 2241(b), and our original habeas jurisdiction.

Id. (STEVENS, J., concurring). Bottom line: 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. Left-leaning Washington Post writer Charles Lane provides an excellent account on what happened from there:

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.”

Nearly 30 years ago, then-Chief Justice Warren Burger wrote that the "argument ... that capital punishment is cruel and unusual is dwarfed by the cruelty of ten years on death row inflicted upon [a] guilty defendant by lawyers seeking to turn the administration of justice into the sporting contest that Roscoe Pound denounced three-quarters of a century ago." Troy Davis spent 20 years on death row. He was zealously defended by adept counsel, at trial and on appeal. Finally, after a nauseatingly interminable series of appeals, on March 28 of this year, the U.S. Supreme Court unanimously denied Troy Davis’s last petition for writ of habeas corpus.

Before I close this out, there is one more thing about these executions that I wanted to discuss. Despite the atrocious tragedy visited upon them, Byrd's immediate family actually opposed Brewer's execution. Hundreds of people, including Byrd's widow and three children, held a vigil at a church on Tuesday.

Betty Boatner, one of Byrd's sisters, told reporters they were "praying for his family as well as our family, and for the citizens of Jasper." she said her family had "already made peace with it a long time ago."

Byrd's only son, who was in military training when his father was dragged to death, echoed that sentiment.

"Life in prison would have been fine," Ross Byrd, now 32, told Reuters. "I know he can't hurt my daddy anymore. I wish the state would take in mind that this isn't what we want."

I cannot find the words to adequately express how moved I am by this family's incredible strength. I believe they are sincere, and I hope that the families of other victims of violent crimes are able to reach out to Byrd's relatives and that for help in coping with their loss and the understandable emotional toll it takes. (It almost made me forget about how a bunch of political hacks exploited this heinous crime in an attack ad featuring Byrd's daughter Renee during the 2000 election.)

Not all of Byrd's relatives opposed the execution, however.


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Wednesday, September 14, 2011

Adrift in a Sea of Left-Wing Crazy Talk

Today, I made a stupid mistake. I visited It was the first time I had done this in a while, and I'm deeply ashamed of myself. This is not to say I regret it; RealClearPolitics is a great site and an excellent fix for political junkies, newsmongers and dataphiles. (I made that last word up.) Yet, therein lies the biggest problem it poses. If you're like me, then you've visited RCP in the past hoping to find one or two opinion/analysis/editorial pieces on a salient issue and maybe spend 20 to 30 minutes total on the whole endeavor before returning to your work. Sometimes it works out that way, but sometimes you get pulled down a rabbit hole and wind up sifting through site after site, article after article, wasting hours of time that you'll never get back. By the time you're satisfied, all you can do is cut your losses and try to avoid making the same mistake in the future. Such was the case with me on many occasions; I had finally resisted the urge to visit RCP for so long that I thought I could check out the site without falling into the same trap that I had so many times in the past. When I tried to do that earlier today, however, it didn't quite work out that way. One click led to another, and I soon found myself adrift in a sea of left-wing crazy talk.

I decided to write this blog post to call attention to two particularly ridiculous pieces of nonsense by well-respected (in left-wing circles) commentators. The first was a blurb by UC Berkeley professor and former Labor Secretary Robert Reich. It was entitled “How to create (lousy) jobs.” (Somehow, before I even read the piece, I knew it was about Rick Perry and Texas.) The sub-head read, “Rick Perry has spurred job growth in Texas by driving out unions and effectively lowering wages.” Now, I’m not sure whether Reich wrote that or the site editors at Salon put it in, but it’s just B.S. What’s more, Reich admits in the first paragraph of his article that “governors have as much influence over job growth in their states as roosters do over sunrises.” So, how exactly can Perry be “driving out unions and effectively lowering wages”? Reich doesn’t say. Instead, he rattles off a series of talking points, making specious assertions without offerring any hard-core data to back them up. Then he gets to the crux of his argument: when "governors try hard enough," he says, "they can create lots of lousy jobs. They can drive out unions, attract low-wage immigrants, and turn a blind eye to businesses that fail to protect worker health and safety."

Reich adds:

Rick Perry seems to have done exactly this. While Texas leads the nation in job growth, a majority of Texas's workforce is paid hourly wages rather than salaries. And the median hourly wage there was $11.20, compared to the national median of $12.50 an hour.

First off, if you're not counting benefits, then $11.20 an hour is pretty good money for someone just starting out, especially if you don't have more than a high-school education. Second, Reich neglects to mention that Texas is one of the youngest states in the U.S. (only Utah has a lower median age), which explains our relatively low median wage. In his eagerness to dump on the Lone Star State, Reich neglected to carefully edit his piece and let a positive fact or two slip. For example, he mentions that Texas "has the lowest percentage of workers without health insurance."

Reich then goes off on a tangent, bashing supply-side economics and conservatives in general. The only other part of his post that I want to call attention to is this paragraph:

Besides, how can lower incomes possibly be an answer to America's economic problem? Lower incomes mean less overall demand for goods and services -- which translates into even fewer jobs and even lower wages.
First of all, that's only true if everyone's incomes are lower, meaning total income, and with it, overall demand, is down. However, until recently, household gross income had been growing steadily in the United States. Second, Reich purports to be concerned about American jobs and wages, but while higher incomes translate into more consumption, they don't necessarily translate into more consumption of domestic goods. As a former Secretary of Labor, Reich should have known this.

The second little gem I wanted to critique here was Jonathan Capehart's latest column for the Washington Post. It was entitled, "Obama’s fight — for respect." After listing a series of what he perceives as House Speaker John Boehner's slights at President Obama, Capehart offers this analysis:

When George W. Bush was president, harsh things were said all the time by congressional Democrats and their leaders. Some even crossed the line. Yet, while there was disdain for the man in the Oval Office, respect for the office itself was never in doubt. I seriously worry that it’s in doubt now among some Republicans. Each petty slight by Boehner is one more chip away at respect for the presidency.

First off, to say that some Democrats "crossed the line" with their attacks on George W. Bush is, I think, a supreme understatement. Secondly, WHAT?!? So the intense, hyperbolic vitriol heaped on the last president (not to mention his family, his party and virtually every member of his administration) never evinced a lack of "respect for the office" of president, but earnest, understandable and (in my opinion) legitamite criticism of the current preisdent's policies and behavior does?

Capehart then showed us just how deep his hero worship of BHO runs. According to him, Obama "is bigger than most of us. So the petty slights that get a lot of us riled up probably don’t register to him. He’s a thinker and plotter with his eyes on the prize down the road, not the daily hysteria taking place on the road to get there."

Assuming Capehart is expressing his true feelings and not just trying to be inflammatory or provocative, I think he's kidding himself. Either that or he's incredibly oblivious to the manner in which this president has conducted himself. Ever since he took office, Obama's proven himself to be immature, vindictive and thin-skinned. I'll spare you all a long list of examples, partly because I think any reasonable, detached observer would draw the same conclusion. I contacted Mr. Capehart to see if he could explain his puzzling statements. If he responds, then I will be sure to update this post accordingly.

The Web is replete on any given day with similar examples of left-wing drivel that I could criticize, which is why I try generally to avoid venturing on to any "gateway" site that could lead to the sort of time-consuming endeavor that ate up much of my afternoon and evening today.

Tuesday, September 6, 2011

Going Postal

I got a package yesterday. Now, when I say I "got" a package, I don't mean that someone came to my apartment and delivered it to me. I mean that I drove to the Post Office and retrieved it. See, last month I ordered several books online for my courses this fall. I received all but one of them in short order. That one book was finally shipped out on Saturday, August 27, according to the tracking history I pulled up online. it apparently went to a "Fedex Smartpost" in Dallas. From there, it was supposedly shipped to Waco on the morning of August 29th (last Monday). Pretty quick. Trouble is, I didn't know any of this until yesterday when I still hadn't received my package and tried to track it online. (I had previously tried to track it online but couldn't because it had not yet been shipped.) The latest entry on the Tracking History said "Delivery attempted" at 04:05:00 PM on August 29, 2011. There's a couple of problems with that: first, I was home at 4:05 p.m. on Monday afternoon, and I didn't hear anyone knock on my door then. Second, even if they tried to deliver the package to me, why didn't they try to deliver it again or at least contact me to let me know they had my package? Then I noticed that the "ship carrier" was USPS. Suddenly I was not surprised.

A lot of people have plenty of bad things to say about the Post Office, and I don't want to waste my time attacking such an easy target. I never intended to use this blog to vent my frustrations, and I'm not going to start doing that now. What I did find interesting is that the Postal Service has been in the news a lot lately, and it's not good news.

Some members of Congress are way ahead of him. Rep. Darrell Issa (R-CA), who chairs the House Oversight & Government Reform Committee, is pushing a plan that would create a commission to recommend office closures, allow for five-day delivery and make other changes.

The real problem, as is so often the case with government, is that the Postal Service has made promises it can't afford to keep. Current union contracts prohibit layoffs. How can anybody run an efficient operation when their employees know they can't be fired?