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Eugene Robinson
NationofChange / Op-Ed
Published: Saturday 24 September 2011
The conviction was based almost entirely on eyewitness testimony, and in the two decades since that trial, seven of nine witnesses have at least partially recanted.

With The Death Penalty, ‘Probably’ Isn’t Good Enough

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The death penalty is a barbaric anachronism, a crude instrument not of justice but of revenge. Most countries banished it long ago. This country should banish it now.

The state of Georgia was wrong to execute convicted murderer Troy Anthony Davis as protesters and journalists kept a ghoulish vigil Wednesday night — just as the state of Texas was wrong, hours earlier, to execute racist killer Lawrence Russell Brewer.

That’s hard for me to write, because if anyone deserved a syringe full of lethal poison it was Brewer. He was an avowed white supremacist who had been convicted, along with two accomplices, of the 1998 hate-crime murder of a black man, James Byrd Jr. They offered Byrd a ride, beat him up and then killed him by chaining his ankles to the back of their pickup and dragging him for more than two miles. When police found Byrd’s body, it was dismembered and decapitated.

“I have no regrets,” Brewer said in an interview with Beaumont, Tex., television station KFDM this year. “I’d do it all over again, to tell you the truth.”

Sweet guy, huh? Still, I can’t applaud his death at the hands of the well-practiced Texas executioners. It’s not that I believe his life had any redeeming value, just that the state was wrong to snuff it out.

The Davis case drew worldwide attention because of questions about the evidence of his guilt. Davis was found guilty of killing a Savannah, Ga., police officer, Mark MacPhail, in 1989. The conviction was based almost entirely on eyewitness testimony, and in the two decades since that trial, seven of nine witnesses have at least partially recanted.

The case became a cause celebre. Luminaries who could never be accused of being soft on crime — such as former FBI Director William Sessions and former GOP Rep. Bob Barr — argued that Davis should not be executed because of doubt about his guilt.

Wednesday night, in his last words, Davis told MacPhail’s family that “I did not personally kill your son, father and brother. I am innocent.” Then a deadly cocktail of drugs was pumped into his veins.

The Davis case makes a compelling case against the death penalty — but not because it is exceptional. On the contrary, it’s fairly ordinary.

Despite what you see on “CSI,” there isn’t always DNA or other physical evidence to prove guilt with 99.9 percent certainty. Jurors often have to rely on witnesses whose field of vision may have been limited — and whose recall, imperfect to begin with, degrades over time. Even when there’s no “reasonable doubt” about the defendant’s guilt — the standard for conviction — there’s often some measure of doubt.

And there are questions of process. Were witnesses coerced into testifying against Davis? A few say now that they were. Did prosecutors prove their case? The jurors certainly believed they did. Could racial bias have been a factor? Unlikely, given that the jury included seven blacks and five whites. Should Davis’s attorney have done a better job of presenting a defense? Almost surely.

It’s a mixed bag. I can’t ignore the fact that over the years, not one of the many judges who examined the case concluded there had been a true miscarriage of justice. This suggests to me that Davis was probably guilty.

But “probably” isn’t good enough in a capital case — and this is why the death penalty is flawed as a practical matter. Someone who is wrongly imprisoned can always be released, but death — to state the obvious — is irrevocable.

In scores of cases across the country, newly examined DNA evidence has proved that inmates jailed for rape or other sexual crimes were in fact not guilty. It is not just likely but certain that some defendants now on death row are innocent. Even if only one is eventually executed, that will be a tragic and unacceptable abuse of state power.

There was a chilling moment in a recent GOP candidates’ debate when Texas Gov. Rick Perry was asked about having authorized 234 executions, more than any other governor in modern U.S. history. The crowd, drawn largely from Tea Party ranks, cheered this record as if it were a great accomplishment. “I’ve never struggled with that at all,” Perry said, referring to execution as “the ultimate justice.”

But he should struggle with it. We all should.

© , Washington Post Writers Group

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ABOUT Eugene Robinson

Eugene Robinson writes a twice-a-week column on politics and culture, contributes to the PostPartisan blog, and hosts a weekly online chat with readers. In a three-decade career at The Post, Robinson has been city hall reporter, city editor, foreign correspondent in Buenos Aires and London, foreign editor, and assistant managing editor in charge of the paper’s Style section. He started writing a column for the Op-Ed page in 2005. In 2009, he received the Pulitzer Prize for Commentary for “his eloquent columns on the 2008 presidential campaign that focus on the election of the first African-American president, showcasing graceful writing and grasp of the larger historic picture.” Robinson is the author of “Disintegration: The Splintering of Black America” (2010), “Last Dance in Havana” (2004), and “Coal to Cream: A Black Man’s Journey Beyond Color to an Affirmation of Race” (1999). He lives with his wife and two sons in Arlington.



Computer run-a-muck. The

Computer run-a-muck.

The repetition of my response was unintentional. Webmaster, please feel free to delete identical extra posts.

In four words, ABOLISH THE

In four words, ABOLISH THE DEATH SENTENCE: It's time to let actions speak louder than words.

In four words, ABOLISH THE

In four words, ABOLISH THE DEATH SENTENCE: It's time to let actions speak louder than words.

In four words, ABOLISH THE

In four words, ABOLISH THE DEATH SENTENCE: It's time to let actions speak louder than words.

In four words, ABOLISH THE

In four words, ABOLISH THE DEATH SENTENCE: It's time to let actions speak louder than words.

I agree, both with Eugene and

I agree, both with Eugene and Rob Two Hawks. Brewer deserved the syringe, but such clear cases are rare. And a judge is no more likely to have a disinterested opinion, or even an intelligent one, than anyone else. Scalia, thought to be brilliant, has written that innocence is irrelevant, once convicted, and should be no impediment to execution. Excuse me?

A number of years ago I read a book, Stolen Years, by Paul Hill, one of the Guildford Four. If you saw the film, "In the Name of the Father," you know who they were. If not, go Google. Suffice it to say that each of the four, plus family members, spent 15 years in prison for an IRA bombing which they had nothing to do with, and which the police and prosecution KNEW they'd had nothing to do with. In sentencing them to 30 years the judge lamented the fact that he no longer had the power to impose death. If England had still had the death penalty he would happily have hanged a half dozen innocents, and the British public would have roared its approval.

I've been foreman of a jury which sent a man to prison, and these sentences from the book have haunted my nights for years: "I watched Jerry testifying, and I knew he was telling the truth, but he looked like he was lying. The peelers were lying, but they looked like they were telling the truth. If I'd been on the jury, I'd have convicted us."

No, in a capital case, "beyond a reasonable doubt" just isn't good enough. "Beyond the shadow of a doubt," or "to a moral certainty," is the standard I'd demand, and that's one that no prosecutor can meet.

While I agree with you,

While I agree with you, mostly, I need to point out an error. The Texas Governor does not authorize executions, and he cannot give more than an one-time stay of execution. A Texas governor cannot commute or pardon any prisoner without the approval of the Texas Board of Pardons and Parole.

Teleri Ferch Nyfain's picture

I have NO problem w/Brewer's

I have NO problem w/Brewer's execution. None at all. The only problems I ever have against the death penalty is 1) often (as w/Mr. Davis) there is reasonable doubt (quite a few convictions have been overturned do to faulty evidence, where DNA especially proved that the convicted person is NOT the guilty party) & 2) the lamentable inconsistencies of who gets death & who doesn't (major exhibit - the guy who killed Harvey Milk & the mayor of SF).

Great article! One

Great article! One small-but-vital piece however bothers me.You mention that because over the years not one of the judges involved sensed a miscarriage of justice that this suggests to you that Davis was ''probably'' guilty.You also affirm that ''probably'' isn't good enough which drives a powerful-point home.Thank you! My question: ...What makes you put so much credibility here on judges' opinions...particularly the judges from Georgia? The fact that several judges didn't sense any violation of justice can suggest many-other-things than...guilt.After all,isn't it ''possible'' that public opinion within the state of Georgia also entered here as a determining factor?Without strong evidence the court convicted and executed upon ''probably'' and I sense that because many within Georgia also believed likewise...Troy Davis is now dead.Recently,a judge believed I was guilty also.He was I for one don't put much faith in judge's opinions.



Thank You.

Thank You.

Thank You.

Thank You.

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