Friday, September 30, 2011 8:21:42 AM
Troy Davis execution fuels eyewitness ID debate
In this Sept. 21, 2011 file photo, a man chants during a vigil for Georgia death row inmate Troy Davis In Jackson, Ga. Davis insisted for years, up until his final words in Georgia's death chamber, that he was wrongly convicted of killing a police officer based on faulty testimony from witnesses to the crime. It wasn't enough to sway courts to spare Davis, who was executed last week, but his supporters say the case adds heat to an already simmering debate over what role eyewitness testimony should play in death penalty cases, or any criminal trial at all.
(AP Photo/John Bazemore, File)
By RUSS BYNUM
Associated Press
Sep 27, 3:03 PM EDT
SAVANNAH, Ga. (AP) -- When Georgia executed Troy Davis last week after four years of appeals ended with the courts upholding his death sentence, thousands still protested that Davis' guilt remained uncertain because witnesses who identified him as a police officer's killer in 1989 simply couldn't be trusted.
The issue raised in Davis's case is getting harder to ignore. With scientific studies showing the human memory can be surprisingly faulty, the once-damning weight of eyewitness testimony has come under question in courts and state legislatures.
Last month, New Jersey's top court made it easier for criminal defendants to challenge the credibility of eyewitnesses, while the U.S. Supreme Court is set in November to hear its first case dealing with eyewitness evidence in 34 years. Such issues also played a role in the abolition of Illinois' death penalty earlier this year and a 2009 law narrowing when capital punishment can be sought in Maryland.
Davis' execution outraged hundreds of thousands of people who said they feared an innocent man was being put to death, based on his defense attorneys' assertion that witnesses who had identified Davis in court as a killer two decades ago had tried years later to take it all back. Dorothy Ferrell was one of those witnesses.
"Well, I'm real sure, positive sure, that that is him, and you know, it's not a mistaken identity," Ferrell told a Savannah jury in 1991. "I did see him and you know, on the fact of what happened and how it happened, you know, I'm pretty sure it's him."
Nine years later, Ferrell signed an affidavit saying she didn't actually see the 1989 shooting of off-duty police officer Mark MacPhail, but pointed at Davis to tell police what they wanted to hear.
Legal experts say Davis' case serves as an example in the debate over eyewitness reliability, particularly in death penalty cases, when scientific studies show the human memory can be surprisingly faulty.
"There's going to be some broader discussions about whether the death penalty is viable at all, but before that happens there's going to be efforts to reform and see what can be done in states that believe in it and regularly use it," said Richard Dieter, executive director of the Death Penalty Information Center, which opposes capital punishment.
Even before Davis' execution last Wednesday, several states had reduced reliance on eyewitnesses.
The Supreme Court of New Jersey, which abolished the death penalty in 2007, last month issued a ruling making it easier for criminal defendants in its state courts to get pre-trial hearings challenging eyewitness evidence. It also requires judges to give juries more detailed instructions about potential flaws in eyewitness identifications.
In 2009, Maryland lawmakers prohibited prosecutors from seeking death unless they have DNA evidence, a videotape of the crime or a videotaped confession from the suspect.
"Eyewitness testimony is so horribly inaccurate - even under the very best of circumstances," said Rob Warden, director of the Chicago-based Center on Wrongful Convictions at Northwestern University. "We should never depend on eyewitness testimony in death penalty cases."
The center says that nationally, out of 138 defendants sentenced to death for murder and then later exonerated since the mid-1970s, 32 had been convicted in whole or in part based on erroneous eyewitness testimony.
As Illinois moved to abolish its death penalty in March, state officials cited Anthony Porter, who was condemned for a 1982 double murder based on eyewitness testimony that authorities later determined was false. Porter got a reprieve just two days before his execution date in 1998, and was released from prison the following year.
Meanwhile, a researcher who's been studying eyewitness issues for 30 years released a study this month that shows police can reduce chances that witnesses will mistakenly point to innocent people in lineups by adopting a few simple procedures.
Gary Wells, an Iowa State University psychology professor, studied 497 instances of witnesses to real crimes looking at lineups on police computers in four states. He found that when witnesses looked at a group of photos all at once, they were more likely to compare faces and pick the one that most resembled the suspect - whether it was correct or not.
The rate of wrong identifications declined, from 18 percent to 12 percent, when witnesses viewed the photos one at a time.
Willis says the one-by-one approach would also make in-person lineups more reliable. It also helps if the officer working with the witness doesn't know who the suspect is, to avoid influencing the outcome. He says police should also tell witnesses it's OK if they can't pick a suspect out of a lineup.
"These kinds of events that people witness, whether a victim or a bystander, often happen very quickly, they're unexpected," Wells said. "It's not like the only thing to look at is the perpetrator's face. There are other things going on; people fear for their safety."
Prosecutors balk at the idea that people are sentenced to death based purely on eyewitness testimony. In Davis' case, for example, prosecutors used shell casings recovered from the scenes of two different shootings hours apart to link the crimes to Davis, who admitted being at both places when shots were fired. A firearms examiner testified it was likely, but not certain, the casings came from the same gun. Some witnesses who identified Davis as the killer have never backed off their stories.
Scott Burns, director of the National District Attorneys Association, said advances in crime scene investigating technology have made it tougher for prosecutors to lean too heavily on eyewitnesses. He said he prosecuted a car-theft case in Utah years ago in which jurors asked if he had any DNA evidence.
"It has raised the expectations of juries," Burns said. "People want all of their senses stimulated. They want to see pictures, they want to watch video."
But eyewitness testimony remains a cornerstone of prosecutions, with many cases yielding very little physical evidence, said Brandon Garrett, a law professor at the University of Virginia.
In his recent book "Convicting The Innocent: Where Criminal Prosecutions Go Wrong," Garrett looked at 190 criminal cases where eyewitnesses helped win convictions for a range of crimes that were later overturned by DNA evidence. He found that witnesses often seemed more confident in identifying suspects from the witness stand years later than they were when interviewed by police right after a crime.
"You had these eyewitnesses almost without exception come into the courtroom and say they were absolutely certain they saw the defendant do the crime," Garrett said. "But more than half remembered being unsure at the time they saw their first lineup."
Among the exonerations Garrett studied was that of John Jerome White, who spent nearly 30 years in a Georgia prison for rape until he was exonerated by DNA testing in 2007. The case came with a startling twist: after White's release, police arrested another man for the same crime - a man who had stood in the same police lineup with White in 1979.
Barry Scheck, co-founder of the Innocence Project, said the legal system is poised to change how it handles eyewitness evidence. The U.S. Supreme Court in November is slated to hear a New Hampshire case that asks whether courts should throw out eyewitness testimony that's been influenced by friends and neighbors in the same way they would reject witnesses tainted by police.
"The Troy Davis execution came at a time where we're at tipping point or there's critical mass concerning eyewitness reform," Scheck said, noting the Supreme Court hasn't ruled on the issue since 1977. "Thirty-four years later, the science dictates it has to change."
Associated Press writers Michael Tarm in Chicago and Eric Tucker in Washington contributed to this story.
© 2011 The Associated Press
http://hosted.ap.org/dynamic/stories/U/US_DEATH_PENALTY_EYEWITNESS_TESTIMONY?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT
===
On death penalty, confidence does not replace truth
By Leonard Pitts Jr.
lpitts@MiamiHerald.com
2000: Frank Lee Smith is posthumously exonerated — he’d died 11 months earlier — 14 years after being convicted of raping and murdering an eight-year-old girl. The eyewitnesses were wrong.
2001: Charles Fain is exonerated and set free 18 years after being sentenced to death for the kidnapping, rape and murder of a young girl. The scientific testimony was wrong.
2002: Ray Krone is exonerated and set free 10 years after being sentenced to death for the kidnapping, rape and murder of a bar worker. The scientific testimony was wrong.
2003: John Thompson is exonerated and set free 18 years after being sentenced to death for murder. The prosecutors hid exculpatory scientific evidence and the eyewitnesses were wrong.
2004: Ryan Matthews is exonerated and set free five years after being sentenced to death for killing a convenience store owner. The eyewitnesses were wrong.
2008: Kennedy Brewer is exonerated and set free seven years after being sentenced to death for killing his girlfriend’s three-year-old daughter. The scientific testimony was wrong.
2010: Anthony Graves is exonerated and set free 18 years after being sentenced to death for the murder of an entire family. The sole eyewitness —who was himself the murderer — lied.
I could make a much longer list.
There are literally hundreds, of men and even a few women who have been exonerated and set free after being sentenced to death, life, 25, 60, even 400 years for awful things they did not do. I could make a longer list, but space is at a premium and there is more that needs saying here.
They killed Troy Davis Wednesday night.
He went to his death still proclaiming his innocence of the 1989 murder of a Savannah, Ga., police officer. Davis was convicted on “evidence” that boiled down to the testimony of nine eyewitnesses, seven of whom later recanted.
But Spencer Lawton, who originally prosecuted the case, would not want you to worry your head about that. Hours before Davis was put to death, Lawton was quoted by CNN as saying he had no doubts about the case and was confident Davis was the killer. How much do you want to bet the prosecutors of Fain, Brewer, Krone or any of those hundreds of others would have said the same thing, expressed the same confidence? Without that confidence, the whole house of cards comes tumbling down.
Meaning the death penalty, a flimsy edifice erected on the shaky premise that we always get it right, that human systems always work as designed, that witnesses make no mistakes, that science is never fallible, that cops never lie, that lawyers are never incompetent.
You have to believe that. You have to make yourself believe it. Otherwise, how do you sleep at night?
So of course a prosecutor speaks confidence. What else is he going to speak? Truth? Truth is too big, too dangerous, too damning. Truth asks a simple question: In what field of endeavor have we always gotten it right? And you know the answer to that.
So truth is too pregnant for speaking. Better to avert your eyes and profess your confidence.
But one day, too late for Troy Davis, too late for too many, truth will out. Godspeed that day the cards come tumbling down.
Copyright 2011 Miami Herald Media Co.
http://www.miamiherald.com/2011/09/24/2423061/on-death-penalty-confidence-does.html [with comments]
===
The 'Lynching' of Troy Davis and White Christianity
Alexander Mikulich, Ph.D. [ http://www.huffingtonpost.com/alexander-mikulich-phd ]
Alex Mikulich is research fellow at the Jesuit Social Research Institute, New Orleans.
On Sept. 21, Texas executed Lawrence Brewer for the murder of James Byrd in 1998, and on Sept. 22, Georgia executed Troy Anthony Davis for the murder of a white police officer, Mark MacPhail, 22 years ago. None of these murders can be justified. Yet, for all the apparent differences between these two cases, both shed light on the enduring legacy of racism and lynching in America.
While Davis' case gained international attention -- the Pope, former President Carter, the former FBI Director William Sessions and eight former prison wardens all called for a stay of execution, given the lack of physical evidence connecting Davis to the crime and the overwhelming doubt cast by seven witnesses who recanted their original testimony -- the cases appear vastly different, in part because Davis' sympathetic character stands in stark contrast to Brewer, the self-avowed white supremacist.
Yet both cases instruct us about white American racial amnesia. As James Cone writes in his recent book "The Cross and the Lynching Tree," "what it invisible to white Christians and their theologians is inescapable to black people."
What is invisible to white Christians and their theologians is the history and enduring legacy of lynching in the 21st century.
What is invisible to white Christians is the connection between the crucified peoples in America -- including Troy Davis -- to the cross of Jesus Christ. Disproportionate arrests, prosecution, capital sentencing, and application of the death penalty against African Americans and Latinos belies any claim that the administration of the capital punishment is rational or fair.
In its recent study, "Struck By Lightning: The Arbitrariness of the Death Penalty 35 Years After Its Re-instatement in 1976 [ http://www.deathpenaltyinfo.org/documents/StruckByLightning.pdf ]," the Death Penalty Information Center is clear that race and geography too often play dominant roles in the application of capital punishment. The influence of race in who is prosecuted for the death penalty and who is not, racial bias in sentencing, unfair jury selection processes, and appeal and post-conviction processes prone to irreversible error result in a death penalty system that disproportionately selects brothers and sisters of color and those who have killed white victims.
More than 75 percent of murder victims in cases resulting in an execution were white, even though nationally roughly 50 percent of murder victims are white.
Of 138 people exonerated since 1976, more than 60 percent are men of color, predominantly black and brown and economically poor. Illinois did not place a moratorium on the death penalty until it realized that it was about to execute 13 innocent men of color in 2000. It is high time for the nation to follow the example of Illinois and execute the death penalty itself.
According to a 2011 National District Attorney's Association [ http://www.ndaa.org/ ] study, nearly 98 percent of district attorneys in states that apply the death penalty are white. In my home state of Louisiana, 97.5 percent of DAs are white and only 2.5 percent are African American. Of 291 Louisiana state judges, only 18 percent are African American. White Americans tend not to have any clue why these numbers ought to be disturbing in a so-called "post-racial" society.
Given the history of our nation, the pervasive ways that we are taught to associate whiteness with innocence and blackness with criminality, we need to shift our collective assumptions about racial bias in the entire judicial system, including legal education. There is too much data pointing to the fact that even whites who claim to hold values of racial equity actually act out of racial bias. Scholars, such as Michelle Alexander in "The New Jim Crow" and Devah Pager in "Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration," have demonstrated how white racial bias permeates U.S. society.
Studies of the death penalty in Louisiana, among many other states, find that those who kill whites are two to three times more likely to be sentenced to death than those who killed blacks. In California, those who killed whites were four times more likely to be sentenced to death than those who killed Latinos. Although African Americans constitute 13 percent of U.S. population, 41 percent of all death row inmates nationally are African American. This disproportionate application of the death penalty to African Americans is even greater in death penalty states that have a history of lynching, including Florida, Georgia, Alabama, Mississippi, Louisiana and Texas.
Brewer's case may seem less obvious in how it represents the enduring legacy of racism and lynching in America. Yet, how many Christian congregations and theologians remember that James Byrd, a black man, was dragged to death behind a truck by Brewer and his white friends? How many know that it is rare for a district attorney to prosecute cases involving an African American or Latino victim?
While most white Americans and their churches do not support the overt white supremacy of Lawrence Brewer, the deafening silence of white Christians in the face of a system that disproportionately imprisons and executes men of color is chilling. The relative silence of white Christian America ought to be terrifying.
It is time to find our religion, white America. It is time to find that our redemption is fundamentally linked to our brothers and sisters of color, who we incarcerate and execute. It is time to contend with our complicity in the enduring legacy of lynching in the contemporary practice of the death penalty and how this contradicts our claims to be Christian and democratic.
Copyright © 2011 TheHuffingtonPost.com, Inc.
http://www.huffingtonpost.com/alexander-mikulich-phd/troy-davis-and-white-christian-america_b_978414.html [with comments]
===
Lynch Law Lives on Stage and in Troy Davis Execution
Jamie Stiehm
September 26, 2011
When you visit Atlanta, ask about the death of Troy Davis, an execution by lethal injection as miles of people across land and sea kept a vigil until it came to pass at 11:08 p.m. last Wednesday evening.
Nice to know law and order—or do I mean lynch law and order?—prevails in the stubborn deep South, whatever the world thinks. Davis was put to death despite a slew of supporters, including dignitaries and law enforcement experts, who found shades of reasonable doubt in his murder case.
In a stroke of amazing timing and relevance, Georgia's capital city is the setting of a tragical musical, Parade, based on a true story of a 1915 lynching. I just saw the brilliant production on opening night at Ford's Theatre on 10th Street here in Washington—the very spot where Abraham Lincoln was shot at close range, by someone he never saw coming in the dark. A vengeful son of the South, an actor, played a Shakespearean scene for all he was worth—MacBeth, Lincoln's favorite.
On that tragic April night, Lincoln was heartily enjoying a comedy. Similarly, all seems bright at first in this Ford's Theatre play. Parade's exuberant ensemble charms with spring songs, costumes, and revelry as the curtain opens on Atlanta's celebration of "Confederate Memorial Day" in April 1913. But the holiday itself reveals the defiance of Atlanta's white society, keeping the anti-Yankee candles burning.
The theatre director, Paul R. Tetreault, expertly captures the tableau of a wounded world that tells itself, over and over, that it was never vanquished, despite the festering sore of the Recent Unpleasantness.
An old guard culture, hostile to outsiders, was the downfall for a Jewish New Yorker in his early 30s, Leo Frank, who made a good living as a factory superintendent. He was accused and arrested of a gruesome child murder. Playwright Alfred Uhry, author of Driving Miss Daisy, wrote the book for the Broadway play, launched onstage in 1998. Uhry has family ties to the story, in true Southern storytelling style. There are no secrets down there, except the ones they choose to tell years later.
Parade is no picnic as it wends its way through the Southern justice system on a murder case that became a national cause, like the Davis case. Frank was found guilty of fatally strangling a girl worker in his pencil factory. When he was sentenced to hang, there was an outcry from quarters who felt a virulent strain of anti-Yankee anti-Semitism played a part in the verdict.
The governor of Georgia a century ago, John Slaton, went against the will of Atlanta's townspeople. His character, portrayed by Stephen F. Schmidt, exhibits courage and pathos, clear about the consequences of bucking the establishment. Governor Slaton reviews the conflicting evidence in Frank's case and grants him clemency: life imprisonment instead of death by the state's hand. That is precisely what Georgia state officials refused to do for Troy Davis.
Lead actor Euan Morton telegraphs Frank's desperate plight with impressive restraint. Jenny Fellner, the actress who plays his wife Lucille, sparkles onstage with her singing voice and her journey to loving her husband, locked up and alone, more than she ever did.
Relentlessly, the end closes in. A well-connected mob of white men break into the jail where Frank is held, to take him for a long night ride. It was a well-planned thing. In the show as in life, the hooded men string Frank up—as he prays in Hebrew—and hang him, with picture postcards to show for it all. Very nice.
So if you get to Marietta, ask them about the tree where Frank was hanged. Yes, Georgia has lots of colorful local history, and the fun part is trying to see where the past ends and the present begins. Both the Davis and Frank convictions were reviewed by the U.S. Supreme Court, which denied relief or mercy in both cases. Oliver Wendell Holmes, the famous justice, scolded Georgia for what he called a form of "lynch law" in Frank's trial. But he was a damn Yankee in the minority.
Tetreault and others chose this timely tale to inaugurate The Lincoln Legacy Project, an initiative to spark a national dialogue on overcoming violence based on hate or bigotry. Parade's history lesson could not be more sobering. Early in the 20th century, lynchings of black men were at an all-time high in the Southern states (including Maryland.) This was a spur to the founding of the National Association for the Advancement of Colored People (NAACP) in 1909. Ari Roth of Theater J, a partner in co-producing the play, notes Frank met the same fate as so many black men at the hands of mobs. Parade, Roth said, is a "galvanizing reminder of what can go wrong in our country when hate speech and raging angers aren't tempered and set to rest."
Amen. And let the conversation begin.
Clarification: Paul Tetreault is the Director of the Ford’s Theatre Society, as noted. Stephen Rayne directed the current Ford's Theatre production of Parade.
Copyright © 2011 U.S.News & World Report LP
http://www.usnews.com/opinion/blogs/Jamie-Stiehm/2011/09/26/lynch-law-lives-on-stage-and-in-troy-davis-execution [with comments]
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In this Sept. 21, 2011 file photo, a man chants during a vigil for Georgia death row inmate Troy Davis In Jackson, Ga. Davis insisted for years, up until his final words in Georgia's death chamber, that he was wrongly convicted of killing a police officer based on faulty testimony from witnesses to the crime. It wasn't enough to sway courts to spare Davis, who was executed last week, but his supporters say the case adds heat to an already simmering debate over what role eyewitness testimony should play in death penalty cases, or any criminal trial at all.
(AP Photo/John Bazemore, File)
By RUSS BYNUM
Associated Press
Sep 27, 3:03 PM EDT
SAVANNAH, Ga. (AP) -- When Georgia executed Troy Davis last week after four years of appeals ended with the courts upholding his death sentence, thousands still protested that Davis' guilt remained uncertain because witnesses who identified him as a police officer's killer in 1989 simply couldn't be trusted.
The issue raised in Davis's case is getting harder to ignore. With scientific studies showing the human memory can be surprisingly faulty, the once-damning weight of eyewitness testimony has come under question in courts and state legislatures.
Last month, New Jersey's top court made it easier for criminal defendants to challenge the credibility of eyewitnesses, while the U.S. Supreme Court is set in November to hear its first case dealing with eyewitness evidence in 34 years. Such issues also played a role in the abolition of Illinois' death penalty earlier this year and a 2009 law narrowing when capital punishment can be sought in Maryland.
Davis' execution outraged hundreds of thousands of people who said they feared an innocent man was being put to death, based on his defense attorneys' assertion that witnesses who had identified Davis in court as a killer two decades ago had tried years later to take it all back. Dorothy Ferrell was one of those witnesses.
"Well, I'm real sure, positive sure, that that is him, and you know, it's not a mistaken identity," Ferrell told a Savannah jury in 1991. "I did see him and you know, on the fact of what happened and how it happened, you know, I'm pretty sure it's him."
Nine years later, Ferrell signed an affidavit saying she didn't actually see the 1989 shooting of off-duty police officer Mark MacPhail, but pointed at Davis to tell police what they wanted to hear.
Legal experts say Davis' case serves as an example in the debate over eyewitness reliability, particularly in death penalty cases, when scientific studies show the human memory can be surprisingly faulty.
"There's going to be some broader discussions about whether the death penalty is viable at all, but before that happens there's going to be efforts to reform and see what can be done in states that believe in it and regularly use it," said Richard Dieter, executive director of the Death Penalty Information Center, which opposes capital punishment.
Even before Davis' execution last Wednesday, several states had reduced reliance on eyewitnesses.
The Supreme Court of New Jersey, which abolished the death penalty in 2007, last month issued a ruling making it easier for criminal defendants in its state courts to get pre-trial hearings challenging eyewitness evidence. It also requires judges to give juries more detailed instructions about potential flaws in eyewitness identifications.
In 2009, Maryland lawmakers prohibited prosecutors from seeking death unless they have DNA evidence, a videotape of the crime or a videotaped confession from the suspect.
"Eyewitness testimony is so horribly inaccurate - even under the very best of circumstances," said Rob Warden, director of the Chicago-based Center on Wrongful Convictions at Northwestern University. "We should never depend on eyewitness testimony in death penalty cases."
The center says that nationally, out of 138 defendants sentenced to death for murder and then later exonerated since the mid-1970s, 32 had been convicted in whole or in part based on erroneous eyewitness testimony.
As Illinois moved to abolish its death penalty in March, state officials cited Anthony Porter, who was condemned for a 1982 double murder based on eyewitness testimony that authorities later determined was false. Porter got a reprieve just two days before his execution date in 1998, and was released from prison the following year.
Meanwhile, a researcher who's been studying eyewitness issues for 30 years released a study this month that shows police can reduce chances that witnesses will mistakenly point to innocent people in lineups by adopting a few simple procedures.
Gary Wells, an Iowa State University psychology professor, studied 497 instances of witnesses to real crimes looking at lineups on police computers in four states. He found that when witnesses looked at a group of photos all at once, they were more likely to compare faces and pick the one that most resembled the suspect - whether it was correct or not.
The rate of wrong identifications declined, from 18 percent to 12 percent, when witnesses viewed the photos one at a time.
Willis says the one-by-one approach would also make in-person lineups more reliable. It also helps if the officer working with the witness doesn't know who the suspect is, to avoid influencing the outcome. He says police should also tell witnesses it's OK if they can't pick a suspect out of a lineup.
"These kinds of events that people witness, whether a victim or a bystander, often happen very quickly, they're unexpected," Wells said. "It's not like the only thing to look at is the perpetrator's face. There are other things going on; people fear for their safety."
Prosecutors balk at the idea that people are sentenced to death based purely on eyewitness testimony. In Davis' case, for example, prosecutors used shell casings recovered from the scenes of two different shootings hours apart to link the crimes to Davis, who admitted being at both places when shots were fired. A firearms examiner testified it was likely, but not certain, the casings came from the same gun. Some witnesses who identified Davis as the killer have never backed off their stories.
Scott Burns, director of the National District Attorneys Association, said advances in crime scene investigating technology have made it tougher for prosecutors to lean too heavily on eyewitnesses. He said he prosecuted a car-theft case in Utah years ago in which jurors asked if he had any DNA evidence.
"It has raised the expectations of juries," Burns said. "People want all of their senses stimulated. They want to see pictures, they want to watch video."
But eyewitness testimony remains a cornerstone of prosecutions, with many cases yielding very little physical evidence, said Brandon Garrett, a law professor at the University of Virginia.
In his recent book "Convicting The Innocent: Where Criminal Prosecutions Go Wrong," Garrett looked at 190 criminal cases where eyewitnesses helped win convictions for a range of crimes that were later overturned by DNA evidence. He found that witnesses often seemed more confident in identifying suspects from the witness stand years later than they were when interviewed by police right after a crime.
"You had these eyewitnesses almost without exception come into the courtroom and say they were absolutely certain they saw the defendant do the crime," Garrett said. "But more than half remembered being unsure at the time they saw their first lineup."
Among the exonerations Garrett studied was that of John Jerome White, who spent nearly 30 years in a Georgia prison for rape until he was exonerated by DNA testing in 2007. The case came with a startling twist: after White's release, police arrested another man for the same crime - a man who had stood in the same police lineup with White in 1979.
Barry Scheck, co-founder of the Innocence Project, said the legal system is poised to change how it handles eyewitness evidence. The U.S. Supreme Court in November is slated to hear a New Hampshire case that asks whether courts should throw out eyewitness testimony that's been influenced by friends and neighbors in the same way they would reject witnesses tainted by police.
"The Troy Davis execution came at a time where we're at tipping point or there's critical mass concerning eyewitness reform," Scheck said, noting the Supreme Court hasn't ruled on the issue since 1977. "Thirty-four years later, the science dictates it has to change."
Associated Press writers Michael Tarm in Chicago and Eric Tucker in Washington contributed to this story.
© 2011 The Associated Press
http://hosted.ap.org/dynamic/stories/U/US_DEATH_PENALTY_EYEWITNESS_TESTIMONY?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT
===
On death penalty, confidence does not replace truth
By Leonard Pitts Jr.
lpitts@MiamiHerald.com
2000: Frank Lee Smith is posthumously exonerated — he’d died 11 months earlier — 14 years after being convicted of raping and murdering an eight-year-old girl. The eyewitnesses were wrong.
2001: Charles Fain is exonerated and set free 18 years after being sentenced to death for the kidnapping, rape and murder of a young girl. The scientific testimony was wrong.
2002: Ray Krone is exonerated and set free 10 years after being sentenced to death for the kidnapping, rape and murder of a bar worker. The scientific testimony was wrong.
2003: John Thompson is exonerated and set free 18 years after being sentenced to death for murder. The prosecutors hid exculpatory scientific evidence and the eyewitnesses were wrong.
2004: Ryan Matthews is exonerated and set free five years after being sentenced to death for killing a convenience store owner. The eyewitnesses were wrong.
2008: Kennedy Brewer is exonerated and set free seven years after being sentenced to death for killing his girlfriend’s three-year-old daughter. The scientific testimony was wrong.
2010: Anthony Graves is exonerated and set free 18 years after being sentenced to death for the murder of an entire family. The sole eyewitness —who was himself the murderer — lied.
I could make a much longer list.
There are literally hundreds, of men and even a few women who have been exonerated and set free after being sentenced to death, life, 25, 60, even 400 years for awful things they did not do. I could make a longer list, but space is at a premium and there is more that needs saying here.
They killed Troy Davis Wednesday night.
He went to his death still proclaiming his innocence of the 1989 murder of a Savannah, Ga., police officer. Davis was convicted on “evidence” that boiled down to the testimony of nine eyewitnesses, seven of whom later recanted.
But Spencer Lawton, who originally prosecuted the case, would not want you to worry your head about that. Hours before Davis was put to death, Lawton was quoted by CNN as saying he had no doubts about the case and was confident Davis was the killer. How much do you want to bet the prosecutors of Fain, Brewer, Krone or any of those hundreds of others would have said the same thing, expressed the same confidence? Without that confidence, the whole house of cards comes tumbling down.
Meaning the death penalty, a flimsy edifice erected on the shaky premise that we always get it right, that human systems always work as designed, that witnesses make no mistakes, that science is never fallible, that cops never lie, that lawyers are never incompetent.
You have to believe that. You have to make yourself believe it. Otherwise, how do you sleep at night?
So of course a prosecutor speaks confidence. What else is he going to speak? Truth? Truth is too big, too dangerous, too damning. Truth asks a simple question: In what field of endeavor have we always gotten it right? And you know the answer to that.
So truth is too pregnant for speaking. Better to avert your eyes and profess your confidence.
But one day, too late for Troy Davis, too late for too many, truth will out. Godspeed that day the cards come tumbling down.
Copyright 2011 Miami Herald Media Co.
http://www.miamiherald.com/2011/09/24/2423061/on-death-penalty-confidence-does.html [with comments]
===
The 'Lynching' of Troy Davis and White Christianity
Alexander Mikulich, Ph.D. [ http://www.huffingtonpost.com/alexander-mikulich-phd ]
Alex Mikulich is research fellow at the Jesuit Social Research Institute, New Orleans.
On Sept. 21, Texas executed Lawrence Brewer for the murder of James Byrd in 1998, and on Sept. 22, Georgia executed Troy Anthony Davis for the murder of a white police officer, Mark MacPhail, 22 years ago. None of these murders can be justified. Yet, for all the apparent differences between these two cases, both shed light on the enduring legacy of racism and lynching in America.
While Davis' case gained international attention -- the Pope, former President Carter, the former FBI Director William Sessions and eight former prison wardens all called for a stay of execution, given the lack of physical evidence connecting Davis to the crime and the overwhelming doubt cast by seven witnesses who recanted their original testimony -- the cases appear vastly different, in part because Davis' sympathetic character stands in stark contrast to Brewer, the self-avowed white supremacist.
Yet both cases instruct us about white American racial amnesia. As James Cone writes in his recent book "The Cross and the Lynching Tree," "what it invisible to white Christians and their theologians is inescapable to black people."
What is invisible to white Christians and their theologians is the history and enduring legacy of lynching in the 21st century.
What is invisible to white Christians is the connection between the crucified peoples in America -- including Troy Davis -- to the cross of Jesus Christ. Disproportionate arrests, prosecution, capital sentencing, and application of the death penalty against African Americans and Latinos belies any claim that the administration of the capital punishment is rational or fair.
In its recent study, "Struck By Lightning: The Arbitrariness of the Death Penalty 35 Years After Its Re-instatement in 1976 [ http://www.deathpenaltyinfo.org/documents/StruckByLightning.pdf ]," the Death Penalty Information Center is clear that race and geography too often play dominant roles in the application of capital punishment. The influence of race in who is prosecuted for the death penalty and who is not, racial bias in sentencing, unfair jury selection processes, and appeal and post-conviction processes prone to irreversible error result in a death penalty system that disproportionately selects brothers and sisters of color and those who have killed white victims.
More than 75 percent of murder victims in cases resulting in an execution were white, even though nationally roughly 50 percent of murder victims are white.
Of 138 people exonerated since 1976, more than 60 percent are men of color, predominantly black and brown and economically poor. Illinois did not place a moratorium on the death penalty until it realized that it was about to execute 13 innocent men of color in 2000. It is high time for the nation to follow the example of Illinois and execute the death penalty itself.
According to a 2011 National District Attorney's Association [ http://www.ndaa.org/ ] study, nearly 98 percent of district attorneys in states that apply the death penalty are white. In my home state of Louisiana, 97.5 percent of DAs are white and only 2.5 percent are African American. Of 291 Louisiana state judges, only 18 percent are African American. White Americans tend not to have any clue why these numbers ought to be disturbing in a so-called "post-racial" society.
Given the history of our nation, the pervasive ways that we are taught to associate whiteness with innocence and blackness with criminality, we need to shift our collective assumptions about racial bias in the entire judicial system, including legal education. There is too much data pointing to the fact that even whites who claim to hold values of racial equity actually act out of racial bias. Scholars, such as Michelle Alexander in "The New Jim Crow" and Devah Pager in "Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration," have demonstrated how white racial bias permeates U.S. society.
Studies of the death penalty in Louisiana, among many other states, find that those who kill whites are two to three times more likely to be sentenced to death than those who killed blacks. In California, those who killed whites were four times more likely to be sentenced to death than those who killed Latinos. Although African Americans constitute 13 percent of U.S. population, 41 percent of all death row inmates nationally are African American. This disproportionate application of the death penalty to African Americans is even greater in death penalty states that have a history of lynching, including Florida, Georgia, Alabama, Mississippi, Louisiana and Texas.
Brewer's case may seem less obvious in how it represents the enduring legacy of racism and lynching in America. Yet, how many Christian congregations and theologians remember that James Byrd, a black man, was dragged to death behind a truck by Brewer and his white friends? How many know that it is rare for a district attorney to prosecute cases involving an African American or Latino victim?
While most white Americans and their churches do not support the overt white supremacy of Lawrence Brewer, the deafening silence of white Christians in the face of a system that disproportionately imprisons and executes men of color is chilling. The relative silence of white Christian America ought to be terrifying.
It is time to find our religion, white America. It is time to find that our redemption is fundamentally linked to our brothers and sisters of color, who we incarcerate and execute. It is time to contend with our complicity in the enduring legacy of lynching in the contemporary practice of the death penalty and how this contradicts our claims to be Christian and democratic.
Copyright © 2011 TheHuffingtonPost.com, Inc.
http://www.huffingtonpost.com/alexander-mikulich-phd/troy-davis-and-white-christian-america_b_978414.html [with comments]
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Lynch Law Lives on Stage and in Troy Davis Execution
Jamie Stiehm
September 26, 2011
When you visit Atlanta, ask about the death of Troy Davis, an execution by lethal injection as miles of people across land and sea kept a vigil until it came to pass at 11:08 p.m. last Wednesday evening.
Nice to know law and order—or do I mean lynch law and order?—prevails in the stubborn deep South, whatever the world thinks. Davis was put to death despite a slew of supporters, including dignitaries and law enforcement experts, who found shades of reasonable doubt in his murder case.
In a stroke of amazing timing and relevance, Georgia's capital city is the setting of a tragical musical, Parade, based on a true story of a 1915 lynching. I just saw the brilliant production on opening night at Ford's Theatre on 10th Street here in Washington—the very spot where Abraham Lincoln was shot at close range, by someone he never saw coming in the dark. A vengeful son of the South, an actor, played a Shakespearean scene for all he was worth—MacBeth, Lincoln's favorite.
On that tragic April night, Lincoln was heartily enjoying a comedy. Similarly, all seems bright at first in this Ford's Theatre play. Parade's exuberant ensemble charms with spring songs, costumes, and revelry as the curtain opens on Atlanta's celebration of "Confederate Memorial Day" in April 1913. But the holiday itself reveals the defiance of Atlanta's white society, keeping the anti-Yankee candles burning.
The theatre director, Paul R. Tetreault, expertly captures the tableau of a wounded world that tells itself, over and over, that it was never vanquished, despite the festering sore of the Recent Unpleasantness.
An old guard culture, hostile to outsiders, was the downfall for a Jewish New Yorker in his early 30s, Leo Frank, who made a good living as a factory superintendent. He was accused and arrested of a gruesome child murder. Playwright Alfred Uhry, author of Driving Miss Daisy, wrote the book for the Broadway play, launched onstage in 1998. Uhry has family ties to the story, in true Southern storytelling style. There are no secrets down there, except the ones they choose to tell years later.
Parade is no picnic as it wends its way through the Southern justice system on a murder case that became a national cause, like the Davis case. Frank was found guilty of fatally strangling a girl worker in his pencil factory. When he was sentenced to hang, there was an outcry from quarters who felt a virulent strain of anti-Yankee anti-Semitism played a part in the verdict.
The governor of Georgia a century ago, John Slaton, went against the will of Atlanta's townspeople. His character, portrayed by Stephen F. Schmidt, exhibits courage and pathos, clear about the consequences of bucking the establishment. Governor Slaton reviews the conflicting evidence in Frank's case and grants him clemency: life imprisonment instead of death by the state's hand. That is precisely what Georgia state officials refused to do for Troy Davis.
Lead actor Euan Morton telegraphs Frank's desperate plight with impressive restraint. Jenny Fellner, the actress who plays his wife Lucille, sparkles onstage with her singing voice and her journey to loving her husband, locked up and alone, more than she ever did.
Relentlessly, the end closes in. A well-connected mob of white men break into the jail where Frank is held, to take him for a long night ride. It was a well-planned thing. In the show as in life, the hooded men string Frank up—as he prays in Hebrew—and hang him, with picture postcards to show for it all. Very nice.
So if you get to Marietta, ask them about the tree where Frank was hanged. Yes, Georgia has lots of colorful local history, and the fun part is trying to see where the past ends and the present begins. Both the Davis and Frank convictions were reviewed by the U.S. Supreme Court, which denied relief or mercy in both cases. Oliver Wendell Holmes, the famous justice, scolded Georgia for what he called a form of "lynch law" in Frank's trial. But he was a damn Yankee in the minority.
Tetreault and others chose this timely tale to inaugurate The Lincoln Legacy Project, an initiative to spark a national dialogue on overcoming violence based on hate or bigotry. Parade's history lesson could not be more sobering. Early in the 20th century, lynchings of black men were at an all-time high in the Southern states (including Maryland.) This was a spur to the founding of the National Association for the Advancement of Colored People (NAACP) in 1909. Ari Roth of Theater J, a partner in co-producing the play, notes Frank met the same fate as so many black men at the hands of mobs. Parade, Roth said, is a "galvanizing reminder of what can go wrong in our country when hate speech and raging angers aren't tempered and set to rest."
Amen. And let the conversation begin.
Clarification: Paul Tetreault is the Director of the Ford’s Theatre Society, as noted. Stephen Rayne directed the current Ford's Theatre production of Parade.
Copyright © 2011 U.S.News & World Report LP
http://www.usnews.com/opinion/blogs/Jamie-Stiehm/2011/09/26/lynch-law-lives-on-stage-and-in-troy-davis-execution [with comments]
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Greensburg, KS - 5/4/07
"Eternal vigilance is the price of Liberty."
from John Philpot Curran, Speech
upon the Right of Election, 1790
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