Sunday, September 13, 2009

the role of "proof" in the death penalty case of Troy Davis

the capital case of Troy Davis
Hal Pepinsky
September 13, 2009

Yesterday I heard a Bob Edwards Weekend segment on a forthcoming state court hearing as to whether Troy Davis killed a Savannah, Georgia, police officer, for whose murder Mr. Davis is in the final evidentiary stage of death penalty appeal, on grounds that he is innocent.
Seven of the nine witnesses who fingered Mr. Davis have recanted; one of the other two has been named by witnesses as the true killer. Pretty lame that Mr. Davis’s death sentence hasn’t even been commuted, let alone discarded in one legal form or another, isn’t it?
I give officials from judges on down who credit to those who argue that Mr. Davis’s death sentence should nonetheless be carried out, for honestly defending their personal integrity. I imagine that continuing defenders of Mr. Davis’s death sentence rationalize, as has happened among Supreme Court justices in cases like Darden and Herrera’s, that witnesses and jurors may recant and repent as an execution approaches. As I have learned in child custody disputes, the prevailing view in law is that the first story told by a participant or witness is the least “contaminated” or distorted by retelling. By that logic, once a policy time line has been drawn for raising issues of innocence, all current changes of memory are presumed suspect. In my experience, this is standard, approved courtroom practice. This seems to me to be established law, fundamentally unfair as the standard might be.
Mr. Davis now gets a chance to prove to a judge that he is innocent. In theory this is an impossible standard: you cannot prove a negative. That’s the origin of the fictitious rule that a criminal defendant is presumed innocent until “proven” otherwise “beyond a reasonable doubt.” It is commonly acknowledged among criminologists that the presumption is of guilt, but case by case, that can’t be “proven” either.
I agree with Gregory Bateson (writing on mind and nature) that the only proof of anything is tautology. Two and two equals four because we define it so. Proofs exist in closed logical systems. Human interaction is inherently open, and so in human interaction, “proof” is unattainable, and hence failure of proof unremarkable.
I think that before we try to teach moral lessons, all the way to terrorizing public spectators by determinedly premeditated acts of murder, we ought to set a pretty high burden of evidence on those who prosecute capital crimes. Eyewitness testimony, jailhouse testimony and jurors’ attention to what’s what rather than who’s who are notoriously unreliable, period. Our determination to defend judgments we impose on those detained and punished for offenses grows as our claims to having proven and punished enemies among us get called into question, as by facts of Mr. Davis’s case. In factual disputes, peacemaking reasoning begins where attachment to proving who’s wrong relaxes. Love and peace--hal

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