Monday, September 26, 2011

The Postmortem Evaluation of Troy Anthony Davis: Burden of Proof

I think I'm going to make this the last post on the Davis case, at least for a while. There's a big point I want to make still, so I guess I'll have to do it herein, toot sweet.

I begin by shamelessly bragging that the New York Times linked to the Yellow and White series, the one that I wrote and the one which you guys populated with insightful comments. From their opinion pages for 26 September, Ross Douthat makes the link in his post Notes on the Death Penalty.
1) After a week’s worth of reading, I remain agnostic about Davis’s actual guilt or innocence. I recommend reading Charles Lane (and via Lane, Judge William T. Moore) for a strong argument that the justice system got this case right. Out of the numerous pieces arguing that Davis’s execution was a miscarriage of justice, this series of posts by the Skeptical Juror stands out for its attention to detail and its distinctive approach to the evidence. If you pressed me sharply to take a position, I would incline to the view that the Davis was guilty. But guilty beyond a reasonable doubt? Given everything that’s come out since the original trial, I think that a new jury should have been asked to make that call.
If you have the time, I suggest you read Charles Lane's article. Charles is reasonably confident that Davis was guilty, based in large measure on the trust he put in Judge Moore as a student of the case and as a Judge of stature.

I recognized Charles Lane's name. I've seen him on Fox News with Bret Baier. Charles is occasionally on the show as an analyst, and he seems to be insightful and level-headed. I like him. I consider it an honor, actually, that my writing is juxtaposed against his.

As far as I know, it's the first time I've been mentioned in the NY Times. It's probably going to be the last too, due to the snarky remark to follow. Until recently, I distrusted the Times writing as heavily biased and scientifically inaccurate. I now see that they are a publication of discerning taste.

Earlier, the Yellow and White series had been linked to by Ace Of Spades, a conservative blogger of some prominence. The link below goes to Part 1 of the series.
Troy Davis Executed
Dead Now: Executed at 11:08.
This blog post (and its sequels) details a more complicated case than Ann Coulter's column suggested.
[Insightful discussion regarding the series here.]
If you like CSI, or Law & Order, especially those ambiguous-ending episodes, the whole murky mess is worth a read.
Hahahahaha. I assume he meant the case was a murky mess, not my writing. Either way is fine with me though.

Ace juxtaposed the Yellow and White series against an article by Ann Coulter. Unlike Charles Lane, Ann is a provocative windbag. Not that there's anything wrong with that.

If you have the stomach, I suggest you read Ann's post. Ann is not only absolutely certain that Davis was guilty, she is absolutely certain that we have never, ever, ever (since 1950) executed an innocent person.
I notice that the people so anxious to return this sociopathic cop-killer to the street don't live in his neighborhood.

There's a reason more than a dozen courts have looked at Davis' case and refused to overturn his death sentence. He is as innocent as every other executed man since at least 1950, which is to say, guilty as hell.
Here's the interesting point, for those of you who sense newspapers are losing their monopoly. The link from Ace of Spades brought 776 hits to this blog. The NY Times brought 77.

Holy Factor of Ten, Batman! Now you know why I didn't make any snarky remarks about Ace.

Okay. Now it's time for me to justify the self-serving writing above by making it relevant to what follows. Here goes.

The point I am pleased to make here is that I've seen better analysis of the Troy Anthony Davis case in the comments to this blog than I saw in either Charles Lane's or Ann Coulter's article. You guys know the details of the case better, you constructed your arguments in accordance with those facts, and many of you admitted to uncertainty even after making your best case.

Another name for that last characteristic is an open mind. The wrongful conviction problem will not be solved by people who can't conceive they were ever wrong.

To prove my case that the analysis in the comments to this blog was superior to that of Charle's Lane and Ann Coulter, I offer a comment by Reader R. Lee.
This comes only after many scenarios have been considered, several of which I've not seen considered elsewhere. I will post again to discuss an opinion of how I think the whole night went down and some theories I would have explored had I been Mr. Davis' defense attorney.  
The Shooting of Officer McPhail, 1:08 am, August 19, 1989: 
Like everyone else, my initial efforts were spent in taking in all of the pieces of evidence, and the shirt colors worn that night were no small part. But, the questionable issue of clothing, the widely varying physical descriptions and the highly suspect photo and lineup identifications after one suspect had fingered the other had me look beyond all of those factors. Wasn't there convincing testimony to reveal who shot McPhail without using facial indentification, physical characteristics and clothing? 
You could almost call this 'the case within the case'. The crux of it all lies with three undisputable acts and three very credible testimonies. Everything else is background noise.
Troy Davis (at trial): Sylvester Coles argued with Larry Young continuously from the parking lot of the pool room and convenience store for two blocks into the Burger King parking lot as Davis trailed close behind. As Davis was leaving the parking lot (in the direction of the bank building) he saw Collins running up ahead of him in the same direction.
Larry Young (2 hours after the shooting): He was trailed by three people into the Burger King parking lot, arguing with one of them since leaving the pool room parking lot over a block away. He [Young] was looking at the guy he'd been arguing with when another person hit him in the side of the head. The third person was not involved in the altercation.
Larry Young (at trial): The person who hit him was definitely not the person with whom he had argued.
Antoine Williams (2 hours after the shooting): Three persons followed Mr. Young into the Burger King parking lot. A person hit Mr. Young with a gun. A police officer runs after the person with the gun. The two unarmed persons are running away as gunman attempts to put gun in pants. As police officer nears gunman, the gunman shoots the police officer.
Davis identifies by name the only two suspects in this case, himself and Sylvester Coles, and he exonerates Collins from being either the person who was arguing with Mr. Young and/or the person who hit Mr. Young, as does Coles' testimony. 
Davis as well identifies Sylvester Coles as being the person who was arguing with Mr. Young. Young, though he admits he might be sketchy on identifying the suspects visually, is emphatic about stating that the person who hit him was not the person who was harassing him verbally. Thus, it is clear that Sylvester Coles was arguing with Mr. Young and that Troy Davis hit Mr. Young on the side of his face with the butt of a gun. 
There were actually three witnesses who on the night of the shooting stated that the person who hit Mr. Young also shot McPhail (actually there was a fourth, but the fourth did not see the first shot that was fired). However, two of them were on the east side of the parking lot, and were momentarily distracted by Mr. Young's dash for help before looking back to see the officer get shot. Antoine Williams was in his car on the other side of the commotion with a full view of all that occurred. 
Williams clearly asserts (and we have no reason to doubt his veracity whatsoever) that the only weapon he saw was that which the assailant [Troy Davis] had used to hit Mr. Young, whereupon the assailant [Troy Davis] was attempting to put the gun back in his pants and "appeared to panic" as the officer approached. The assailant [Troy Davis] turned and shot the officer [McPhail].
Case closed.
Reader R. Lee clearly has a better grasp of the case details than do either Lane or Coulter, at least based on their writing. Also, Reader Lee knows his readers have a better grasp on the case details than either Lane or Coulter can expect of their readers. That's why their writing is fluffier, less focused. That's why they're so willing to ultimately relinquish their decision to Judge Moore or give in to their confirmation bias. That's why they can't get to the heart of the matter.  

Here's what I like about Reader Lee's analysis. He provided the clearest, most organized, argument for guilt based on the statements and testimony of people who actually witnessed at least some part of the crime.

Here's where I think Reader Lee went wrong.

1. He began by trying to preempt all evidence and arguments that might contradict his scenario. "Everything else is background noise." See. While many of us try to wrestle with the shirt swapping business, and while many of us have at least some concern about the statements and testimony due to multiple, similar claims of police coercion, Reader Lee simply declares by fiat that "Everything else is background noise."  That's a pretty easy way out. I think it would have been better had he simply made clear that he intended to focus, for the purpose of his argument, on the statements and testimonies of those who witnessed the crime. He could have then worried about rationalizing his conclusion with all the other evidence later.

2. He attempted to lead his readers to an irrefutable conclusion by building his foundation block by irrefutable block. That's good, except some of his blocks were crappy. Consider his claim that we have no reason whatsoever to doubt the veracity of Burger King Employee Antoine Williams. Hahahahaha. Good one.

Williams first said that the shooter wore a white or blue t-shirt, that the tint on his windows kept him from being sure which. Heck, I doubted his veracity at that point. In his second statement, he added that his window tint would not have prevented him from distinguishing yellow from white or blue. That's bullshit of course. I knew by his second statement he was pretty much telling the police what they wanted to hear. Then he testified at trial that Davis was the shooter and was wearing a yellow or white shirt.  Good one Antoine. On cross, he changed his mind and said that he must have been right earlier when he said the shooter was wearing a blue or white shirt. In his recantation, he said his windows were so tinted he couldn't make out any colors. Now how did Reader Lee, who read all the case information, get all the way from that incorrect / perjurious testimony to no doubt about his veracity?

Consider also the faith he put in Larry Young's statement, despite Young's recantation that he was both drunk and drugged. Recall that Young was going to the store to get more beer, given they had already gone through the first, or second, or third batch. Which Larry Young does Reader Lee choose to believe: the one who  claimed to see everything clearly or the one who claimed to be blitzed?

3. Reader R. Lee, who made a good but imperfect case of guilt, finished by boldly claiming "Case closed."

And so finally, blissfully, Reader Lee's "case closed" assertion leads me to the point with which I choose to close this series.

Those who favor the death penalty and those who want to believe we have never executed an innocent person must always be sure. For them, each and every case in the past and in the future must always be "Case closed." If they ever allow themselves to believe that an innocent person has in fact been executed, they must then change their stand on the death penalty, or they must argue that it is acceptable to execute a few  (just a few, mind you) innocent people.

I'm not claiming that Reader Lee is a death penalty proponent. He makes clear elsewhere that he believes Davis should not have been executed. And I don't know if Reader Lee believes we have ever executed an innocent person. I will say, however, that I think his "Case closed" statement belies some wishful thinking.

Reader Lee is in good company, however. Charles Lane and Ann Coulter are also confident that Davis was guilty. For those two as well, the Davis case is closed.

For myself, I choose to remain skeptical.