Sunday, 25 September 2011

On Capital Punishment

Capital punishment is wrong.  Not because all murderers deserve to live, but because it diminishes us all when the state kills on our behalf.

In the developed world, only the USA carries out judicial executions (the vast majority of the world's executions are in China).  I'm writing about this now because of the attention focussed on the execution of Troy Davis in Georgia on the night of 21st September.

Much of what has been written about it has been assertions of Davis' guilt or innocence of the capital crime he was convicted of.  The crime was committed in 1989 in Savannah, Georgia, at about 1am outside a Burger King restaurant.  One of a group of three young men got into an argument with a homeless man who refused to give him a beer.  Another of the group struck the man with a gun.  A security guard at the restaurant, who happened to be a moonlighting policeman, went to the victim's aid and was shot dead by the assailant.  The identities of the group of three men are not in dispute; the only question is which of them committed the assault and murder.

Perhaps unsurprisingly, polemicists on both sides have wildly exaggerated the strength of their cases.  At the direction of the US Supreme Court, the District Court in Savannah (where the crime was committed) re-examined the evidence in June last year, 21 years after the murder.  This at least makes available a reasonably objective account of what evidence there was, in two parts.

The court account shows that there is no forensic evidence against Davis, and in particular that claims are false that the dead man's blood was found on a pair of   his shorts which were excluded from evidence in Davis's original trial because they had been seized illegally by police.

It shows equally that claims are wildly exaggerated that seven out of nine key witnesses have recanted their testimony.  The two most important witnesses were the homeless man, Larry Young, and his girlfriend who was drinking with him, Harriet Murray.  Young gave an affidavit to the defence saying that his original evidence had been whatever the police wanted.  But the defence declined to call him in person at the 2010 hearing, despite his being present, and despite being warned by the court that his affidavit would carry much less weight if he were not called.  Murray gave a statement to the defence, which she declined to have notarized, largely repeating her original evidence.  There were discrepancies, but nothing approaching a recantation.  She has since died.

Identification evidence is notoriously unreliable.  But the identification in this case is unusual in that it is needed to determine which of the group of young men was which, not to determine who was in the group.  It seems to me that the reliability in general of this sort of identification would be quite easy to test, and that if either side were interested in the truth they would have done the research at some time in the last 22 years.

The Savannah Court's conclusion was "After careful consideration and an in-depth review of twenty years of evidence, the Court is left with the firm conviction that while the State's case may not be ironclad, most reasonable jurors would again vote to convict Mr. Davis of Officer MacPhail's murder".  And it explained at considerable length that it was not the Court's business to conduct a retrial, but to determine whether the original verdict could not reasonably have been arrived at in the light of new evidence.

I don't know what the difference is between "ironclad" and the "beyond reasonable doubt" standard for convictions used in the USA as in the UK.  But I suspect that an expensive legal team has got a lot to do with it.

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