The execution of Troy Davis says some things about our legal system which apply to lots of issues beyond the debate over the death penalty. I had some (very tangential) involvement in this matter, so I think I know the case well enough to say the following with confidence: Davis's execution was a grotesque travesty of justice, but it also resulted in the legally correct outcome, if by "legally correct outcome" one means what law professors usually mean when they ask if a case was "correctly decided."
In brief, Davis's problem was that, if he wasn't able to demonstrate, after his conviction, that he had not gotten a full and fair trial -- and he wasn't able to demonstrate this, because the trial he got pretty clearly met the standard of what counts as a "fair trial" in our criminal justice system, at least for the purposes of the existing state and federal laws -- then the only way he could avoid execution was to convince the authorities reviewing his case that he was actually innocent. (The inimitable Justice Scalia went so far as to declare that even this wouldn't be good enough for the purposes of a federal court review of his case, because "this Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent.").
Davis's execution was a travesty of justice because, in my opinion, the chances are a good deal better than even that he didn't murder Mark MacPhail. It's more likely, in my view, that Redd Coles -- the key witness in the case against Davis, and the man who went to the police in the first instance with the claim that Davis killed MacPhail -- is MacPhail's actual killer.
In retrospect the claim that Davis was guilty beyond a reasonable doubt for the crime for which he was executed is completely indefensible, but again, as a procedural matter, once Davis was convicted for the crime in what counts in our system as a fair trial (and he was), then as both a formal and practical matter Davis had to prove his innocence to a fairly high degree of certainty in order to avoid execution. This he was unable to do (I certainly don't claim to know whether Davis was in fact innocent -- I personally think the available evidence suggests he was, but that's quite different from that evidence amounting to a genuine exoneration). So, as a formal legal matter, Davis's execution did not involve any violation of state or federal law, even though he was probably innocent.
Now this realization should fill any decent human being with a sense of disgust, but it affects certain legal actors with something more like exasperation at the extent to which our current system refuses to achieve "finality" within a reasonable time frame. Justice Scalia's dissent linked above could not be more clear on this point: what matters to him is whether or not the rules have been followed, and if they have then the execution of a probably innocent man is just one of those prices "we" must pay for all the wonderful things we get from the legal system.
As I have argued elsewhere, Scalia represents an extreme example of a certain kind of judge that positively revels in coming to conclusions that are morally revolting but “legally” sound. Judges of this type like these sorts of cases because they demonstrate that law is a supposedly nonpolitical and intellectually rigorous practice, rather than a touchy-feely exercise in doing what strikes the judge as the right thing.
What, after all, could be more nonpolitical and intellectually rigorous than executing an innocent man, simply because “the law” requires that result? In a perverse way, such bloody logic is a kind of advertisement for the supposed objectivity of the legal system, since we can assume that no sane decision maker would reach such a decision voluntarily. (The great legal historian Douglas Hay explained the 18th-century English practice of sometimes acquitting obviously guilty men on absurd procedural technicalities, such as incorrectly calling the defendant a “farmer” instead of a “yeoman,” in similar terms: “When the ruling class acquitted men on such technicalities they helped embody a belief in the disembodied justice of the law in the minds of all who watched. In short the law’s absurd formalism was part of its strength as ideology.”)
"The law's absurd formalism was part of its strength as ideology." Precisely. This insight applies to many more aspects of the legal system than the revolting spectacle of our contemporary system of capital punishment, which in a case such as Davis's -- which is not in this respect was not unusual -- psychologically tortures the defendant, the defendant's family, the victim's family, and others connected to the case for literally decades before producing what the system then has the temerity to call "justice." (The climax of this spectacle last night involved Davis being strapped to a gurney with a needle in his arm for nearly four hours, waiting for various legal personages to respond to the question of whether, all things considered, it was finally time to stop his heart with state-administered poison).
That we tolerate this kind of thing so readily helps explain, in its own way, why it sometimes seems impossible to do much of anything about the absurdities and dysfunctions of the system of legal education that legitimates it in the first instance. Or perhaps it's the other way around: perhaps we tolerate the absurdity of something like the 22-year "process" that resulted in the horror of Davis's final hours because we 're socialized from the beginning of our careers in this system to accept all kinds of absurdity and injustice as natural, inevitable, and therefore legitimate.
Thursday, September 22, 2011
The Needle and the Damage Done
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I think lawyers as a whole have a strong tendency toward the view that "whatever is, is best." We're so focused on knowing what the law is (or what it will be in the near term) that any questions about whether it should be what it is become invisible.ReplyDelete
As a practitioner, I am still pulled up short a bit on the occasions when, after I explain to a client what the law is, s/he wants to know why the law doesn't make sense or doesn't comport with his/her intuitions of fairness. It's a good reminder that the law is not a force of nature.
On the plus side, in my experience the great majority of judges want to do what's fair just as much as they want to do what's legally correct. The few judges I've dealt with who've displayed an attitude like what LawProf describes regarding Scalia were men who had been on the bench too long and hated just about everyone who appeared before them.
One thing my criminal law lecturer said that was very true to me: when it comes right down to it, the only truly defensible purpose of our present system of criminal law is revenge. This is particularly true of the death penalty.ReplyDelete
The rest of the civilised world by-and-large believes America's death penalty to be a national disgrace. Sure, there are a few other first-world nations that still execute (Japan, Singapore, and Taiwan) and a few others where it's on the books but has not been used in the last decade or more (South Korea, Israel) but even in these countries it would be hard to find the kind of blatant examples of bias, discrimination, caprice, and sheer carelessness of life that you find in the US legal system.
Let's put it like this: In the UK there are charities which specifically on getting US prisoners off death-row - the kind of thing that is usually done for third-world dictatorships. They regularly succeed in getting people off through the most basic examination of the evidence.
Well, this dreck is enough to get me to stop following this blog. I for one will not lose a wink of sleep over this dead, convicted cop-killer.ReplyDelete
Since you've opened the bag, what arguments are there that he was innocent? There were 9 eyewitness and only one, really, recanted his testimony.ReplyDelete
If this is going to be the topic of the day, then people would do well to read the relevant portion of Judge Moore's decision linked here:
9:02: The problem is that while the evidence of Davis's innocence is not very good, the evidence of his guilt is even worse. Judge Moore concluded that Davis hadn't been proven innocent by clear and convincing evidence. For perhaps understandable reasons he then translated that conclusion into the completely different claim that only "minimal doubt" had been cast on Davis's guilt -- a ludicrous conclusion in my view, given the actual state of the evidence.ReplyDelete
What evidence Law Prof? Comm 'on, put your cards forward.ReplyDelete
Oh, and what did Scalia actually say?
"This Court has never held that the Constitution forbids the execution of a convicted de-fendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent."
And that is true; the Court had not previously held so.
Methinks this topic may be better suited for your other blog. In any case, I'm too busy worried about making my $1500 monthly loan payment that helped pay for your tenure to worry about social injustice.ReplyDelete
Yep. And the reverse is true, too. It's obvious that the business model for legal education is broken. That people are hurting because of it. That it must be changed, and that those who know it must be changed and yet remain silent are culpable. But today is the kind of day wherein it's tough to care deeply about the 25 year old who didn't get the 160K job he thought he was promised.ReplyDelete
I have no connection to legal business or education in any way. I'm only a cynical and disenchanted undergrad at Duquesne University (name sound familiar? To followers of this blog, it should) who enjoys reading about matters of higher education. For some inexplicable reason, having a chance to attend Duquesne Law is considered a privelege here in Pittsburgh. My parents are trying to push me toward that very thing in fact. I have to shake my head when I see the "100 Years of Excellence" banner hung across the Law School building. But only yesterday, I saw a flier stating that the Honorable Scalia, of all people, would be speaking at their Centennial Banquet. How disgustingly appropriate, given the recent posts here.ReplyDelete
@8:40 - oh I got the 160K job I was promised...and Im busy paying the extraction fee so that people like Campos can write so comfortably about it all from his sofa. I really really wish I could too...ReplyDelete
People dies all the time, people's lives are also ruined all the time.
It certainly makes it a lot tougher to sympathize with you folks who've been victimized by law school scams when your reaction to other obvious injustices created by the workings of the system is, "Who cares about that guy - let's talk about how I was victimized!"ReplyDelete
I guess that's why "I've got mine, Jack" is always more powerful than "workers of the world unite." A depressing realization for a depressing morning.
Can't we find some procedural technicality that would permit the execution of Brian Leiter and a few law school deans?ReplyDelete
I'm with 9:03. My only response to this comment thread is deep sadness.ReplyDelete
@9:03 - genius, look at the title of this blog. That's what the subject matter was supposed to cover. And who is looking for your sympathy? What's wrong is wrong, right bleeding heart? And don't worry, I most definitely do not have "mine."ReplyDelete
I don't know if Troy Davis was actually guilty or not, but SCOTUS' refusal to get involved is not surprising. Davis had no money or power. If a corporation was even mildly threatened in any way, SCOTUS would ride out with guns blazing, doing everything in their power to help their buddies out.ReplyDelete
I love it. Oops, a few law school deans have been executed! Oh well, an "injustice". Yeah, an injustice to say the least, haha.
Fucking law school scammers.
Folks, look at the economy today. The day of reckoning gets ever closer. If the system can't be collapsed from below, then let the forces from above destroy it.ReplyDelete
. . . "perhaps we tolerate the absurdity of something like the 22-year 'process' that resulted in the horror of Davis's final hours because we're socialized from the beginning of our careers in this system to accept all kinds of absurdity and injustice as natural, inevitable, and therefore legitimate."ReplyDelete
Precisely. We care about our own misfortune, couldn't care less about anothers (and, with the debt and unemployment, *how* could we, especially if we have families to feed???). We only argue our client's position, plaintiff or defendant, DA or defense, and then *we switch sides when we switch jobs 6 mos. later and argue the exact opposite of what we just argued.* We are a profession where we are trained to be callous, sometimes obnoxious, to think everyone else is stupid and wrong, been then defend it in the name of "legal ethics."
As the economy plummets in the next few months, the day of reckoning for law schools and higher education in general is coming. Obama, rightly or wrongly, will be thrown out and the Perry/Romney ticket will easily sail toward victory in 2012. The Tea Party influence will ultimately put Perry atop the GOP ticket, and the defunding of education will become a fiscal imperative that only enjoyed the luxury of being a threat in previous years. They myopic will see this as fiscal responsibility, but the ruling elites will make sure that those fiscal cuts are targets specifically at social programs and subsidized lending programs.ReplyDelete
Prepare yourself, folks. OCI is going to SUCK this year, and many of the students will get no-offered. And you thought 2008-9 sucked. Just wait.
"They were giving the choice to change on their own accord; then they had change forced upon them."ReplyDelete
Hey everybody! Stop complaining about the law school scam, 9:03 is upset!ReplyDelete
The bubble is bursting folks. Check your news today. What you are witnessing is the first quake before the burst.ReplyDelete
Gotta say, after reading comments on this blog from day one forward, law schools sure are populated with some unsympathetic little pricks. I had somehow forgotten (or repressed) that in the 10 years since graduating.ReplyDelete
It's going to be a long life for many of you, and not just because you are up the proverbial creek in debt.
@11:01AM Well, let's hope it is a long life, and that we don't burn-out and live short lives as a result of the the well-compensated, yet numerous stresses of Shitlaw.ReplyDelete
Paul, thank you for the very thoughtful post. It would be sad, I think, for any law-related blog to overlook this issue today--and you have offered some very interesting ideas for reflection. It's a good day to reflect about a lot of things.ReplyDelete
I wish to defend some of my fellow commentators whose coments may seem callous regarding the execution of Troy Davis.
Any thinking person reacts in disgust at the thought of the state's machinery of death being so entrenched that it would execute an innocent man. I know that I am disgusted.
However, while there are many audiences to whom you should address your outrage; perhaps this is not the one. I say this with a great deal of respect for what you are doing with this blog--thats why I don't want you to spoil it.
I grew up around professors---my father was a professor for thirty years at Vanderbilt. Most of those professors were, like you, I think, thoroughly decent human beings---I don't wish to imply otherwise. But most of them, were armchair, knee-jerk liberals who didn't, in my opinion, occupy much space in the real, half-functioning, messy world. Many of them, just couldn't see how out of sync many of their ideas, although perhaps original and even brilliant, were with the real world.
This blog, in my view, (although I'll get some disagreement) is an example of the real world. Most of the people reading this blog are hurting financially, emotionally, and vocationally and many of the people that inflicted that pain upon them, are professors. Not you personally, of course. Nonetheless, when you preach (and I do mean to use that word) about your outrage at the American criminal justice system, you sound like those other law professors who had a great deal of time, energy, and outrage to pontificate on behalf of the downtrodden but don't have the time, energy, or outrage to advocate for their own students; people who are playing by the rules and yet drowning in debt because they went to law school where the professors they went into debt for could not even teach them the correct way to actually practice law. Therefore, you showering your readers with your perfectly justified anger over Troy Davis feels a little exasperating---at least that's how I see it.
Knowing the university system as I do in all of its glorious pettiness, I do realize you are taking a risk with this blog and I do appreciate that fact.
He can't even have one post, just one post to talk about an event that hasReplyDelete
garnered worldwide attention and outrage. It is not just professors, it's the Pope and
people of many different political views.
These comments are only proving LawProf's point.ReplyDelete
There's basically two perspectives on the scam issue. Is the scam not right on its own merits--is it unjust? Or is it not right because the procedures weren't followed perfectly and as a result you personally got scammed?
The excuse-making professors can sleep at night because they don't care whether it's right. They just care that students received the legal education they paid for. Does it produce broadly unfair outcomes (hundreds of thou in debt with no jobs)? Contract's a contract. Was it sold under deceptive practices? Caveat emptor.
I do not think LawProf would be running this blog if he believed that obviously unjust outcomes were perfectly acceptable as long as some agreed-to procedure was followed. One takes reputational/social risks because one thinks something is unjust, not because one doesn't think all the ts were crossed. It seems to me that his reaction to the Davis case is, and should be, part and parcel of the character that would make this blog in the first place.
If you think he shouldn't get political, that it's a distraction, fair enough; but if you can't see the connection at all, I pity you. And I pity the rest of the world that needs your solidarity and has to find ways to cooperate with you.
Obama will be defeated, and the Tea Party will rise yet again in 2012. Prepare yourself for the wild and crazy ride ahead. Move home or live in groups. No one's job is safe---most especially the overcompensated elites, who have been suckling the government teet for years.
When the Pope says no to abortions, contraception, and immorality in general, the liberals at best ignore him, though they usually choosebto mock and denounce him instead. Relying on him here, when he is much less informed than the jurors and judges who have wrestled with the case for two decades, is quite disingenuous.ReplyDelete
"most especially the overcompensated elites, who have been suckling the government teet for years."ReplyDelete
You misunderstand the tea party. The tea party are a bunch of idiots, "useful idiots" as Stalin would say, who despite being poor and swindled out of their right to pursue happiness, have made it their mission to help those rich who swindled them out of that right. See Joe the Plumber for example, the near minimum wage hourly employee plumber's assistant who criticized tax increases on those making over $250k because he deludedly thought he would be such a person one day.
Edit: Although, I guess your statement would turn on the definition of overcompensated elite. I may have misunderstood who you were referring to and so you may be right.ReplyDelete
Okay, take the Pope out of it. Still, one post on this event is understandable.ReplyDelete
9:03 AM: just adding my agreement. Some of the comments on this post are unbelievable.ReplyDelete
CBS News justice correspondent Jan Crawford reports that even the four liberal justices on the nation's highest court agreed - Davis had multiple chances to prove his innocence, and each time he failed.ReplyDelete
Seems to me that the death penalty gets lots of attention compared to the problem of law school tuition/student loans/employment issues. There are a lot of high profile law professors; law firms; and well-funded organizations working on behalf of condemned persons.ReplyDelete
On the issue of tuition/student loans/employment issues, we just have a few unpaid scambloggers.
To be sure, it is far worse to execute an innocent man than to leave a law graduate underemployed and with lots of non-dischargeable debt. On the other hand, the ratio of innocent law graduates who are financially screwed to innocent men who are executed is pretty high, perhaps infinite.
Let's do this: If Jim Liebman at Columbia Law School publicly announces that the tuition and student loan system is out of control, then I'll applaud Campos for pontificating about capital punishment. Even if I disagree with him.
None of the law school graduates is "innocent".ReplyDelete
I just posted this on an AALS recruitment thread in prawfsblawg.ReplyDelete
Can you people please, at least, sign Prof. Campos's petition asking for honesty in disclosure of job placement? Unless you have no conscience or sense of morals whatsoever, the guilt of facing kids who your enterprise has scammed out of nondischargeable student loan money will get to you. As the great writer said, if you hurt others you hurt yourself. The psychic harm of taking such a revolting and despicable job as law professor will get to you. By signing the petition, you can put yourself squarely on the side of non-fraudulent law school advertising, even if it means some schools will be shut down and some of you will lose your jobs.
Posted by: anon | Sep 22, 2011 11:57:55 PM
The law ought to recognize the concept of "residual doubt."ReplyDelete
No convictions unless proved guilty beyond a reasonable doubt, as everybody knows.
But executions, if we must have them, ought to require a higher standard of proof. No execution unless the defendant is guilty beyond a residual doubt. Furthermore, defendants should be allowed to raise "residual doubt" in the direct appeal, state postconviction, and federal habeas proceedings.
Love the Thursday reference ...ReplyDelete
But Professor, what are you actually proposing, since you don't seem to think current doctrine is "correct," normatively? That actual innocence claims, if cognizable, need not be proven to as high a standard as we currently require them to be? Perhaps, instead of the standard being whether no reasonable juror could find the defendant guilty in light of the new evidence, the standard should be - what? Whether a reasonable jury would find the defendant guilty?ReplyDelete