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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