Thursday, September 22, 2011

Justice in Georgia

Robert Clark

Troy Davis

"Once prosecutors have somebody, they hate like hell to let go.When somebody they've convicted years before asks to go back and check the evidence for DNA, you would think, if they were neutral parties interested in justice, they'd say great, if the guy was guilty, we'll have proved it twice; if not, let's get him out and find the right person. But they don't. They fight tooth and nail to prevent the tests from taking place." -Larry Beinhart, from "Salvation Boulevard."

For one reason or another I've been caught up in repeat episodes of the crime drama/comedy "NCIS" lately. NCIS of course stands for Naval Criminal Investigative Service, an organization I may or may not have had some personal experience with due to some recruitment issues after I joined the navy in 1978. The real NCIS investigates the crimes of rape, child physical and sexual abuse, burglary and robbery, theft of government and personal property, and homicide (NCIS also has responsibility for investigating any non-combat death involving a naval service member where the cause of death cannot be medically attributable to disease or natural causes). The television show, at least for the episodes I've watched in the last few weeks, mainly deals with homicide, because there's nothing like a good murder to keep viewers interested.
The show stars former Bruins quarterback, Mark Harmen (we both attended Pierce College in Woodland Hills... small world), Michael Weatherly, the lovely Pauley Perrette, Sasha Alexander, and after the second season, the Chilean-American actress Cote de Pablo, who plays an Israeli. It also stars Illya Nickovetch Kuryakin himself (from "The Man from U.N.C.L.E."), Scottish actor David McCallum. The show has been renewed for a ninth season and has been voted the most popular television program for 2010 (Harris Poll).
The reason I gravitated toward this series is that though it does primarily deal with murder, death, crime, and forensic science as plot devices, it has a pronounced sense of humor. And I shouldn't have been surprised that it did considering it was created by Donald Bellisario, who as it happens, also created another of my favorite Crime Drama/Comedies, "Magnum P.I." from back in the 80s. I find "NCIS," much more entertaining than the often cold and somber "Law and Order," series and it's spin offs (I don't spend a whole lot of time watching these shows... only when I'm depressed and can't find anything else on).
On "NCIS," the wonderful actress, writer, singer, civil rights activist, and bartender, Pauley Perrette plays the forensic scientist Abby Sciuto (I call her Abbs), and she's taught me all about the importance of forensic science (stuff that Jack Klugman from "Quincy, M.E." didn't know about back in 1980) like DNA profiling.
On June 30th of 1981 a woman was abducted from the parking lot of a Kentucky Fried Chicken store in East Atlanta Georgia. She was taken to secluded locations in Cobb County where she was beaten and raped three times. She was left bound and naked while her abductor drove away in her car, managing to partially untie herself and get the attention of a passing motorist, who notified the police, who took her to a hospital where she submitted specimens in a Rape Kit.
The victim described her attacker as a black male, medium complexion, thin face, high afro hair style (1981), about 5'7", and about 120-125 pounds.
About a week later she saw her car being parked at an apartment complex, she called the police who eventually came up with the name Robert Clark as the driver of her car. Clark was about 6'2", thin, and 21 years old at the time.
Later that month Clark was arrested for auto theft. As he didn't match the rape victim's description the police didn't immediately consider him a suspect. He became a suspect after lying to investigators about how he obtained the victim's car. Later he told the police he got it from a friend he was trying to protect.
Days after her attack the police showed her mug shots of potential attackers, at which time she chose someone other than Clark. Two days after Clark was arrested the police showed her a photographic array that contained Clark’s picture. She chose that picture as someone that looked very much like the perpetrator. Two days after that, on August 27th, she identified Clark from a live lineup. Clark was the only person in the lineup whose photograph was in the photographic array.
Clark went to trial before a jury and was convicted on May 26, 1982, and sentenced to life in prison. The victim testified that there was no doubt in her mind that Clark was the assailant. Keep in mind dear readers, this was a rape victim who was attacked, raped, three times by her attacker. I understand the trauma that was inflicted upon her at the time, and the fright, but if there was ever a case for a positive and true "eye witness identification," this must have been it.
Prosecutors presented serological evidence. No ABO typing (matching of blood types) could be performed, however, because some of the vaginal swabs from the rape kit had been lost prior to trial. The remaining slides did not contain enough material for successful typing.
Clark went to prison. He maintained his innocence and tried to obtain postconviction DNA testing in the late 1990s as the procedure became widely available, and indeed used by law enforcement to gain convictions. In July 2005, the vaginal slide evidence was sent to Serological Research Institute (SERI) in California. The results showed that Robert Clark could not have contributed the sperm found on the vaginal slide. The Innocence Project (, which had taken up Clark's case, immediately requested that the District Attorney’s Office conduct a search in CODIS (Combined DNA Index System) and the state convicted offender DNA databases. The profile obtained from the vaginal slide was consistent with the profile of a Tony Arnold, the friend Clark had tried to protect. Arnold was already in prison serving time for a 2003 cruelty to children conviction.
After 24 years in prison, on December 8, 2005, Robert Clark regained his freedom after proving his innocence. He became the fifth person in Georgia to be exonerated by postconviction DNA testing. All of these cases involved mistaken eyewitness identification.
I bring up this case to illustrate the point that our famous justice system in this county is flawed, and that innocent people do go to jail, to prison, or are sent to their death for crimes they were innocent of. In the case of the death penalty the punishment administered is somewhat irreversible. Once you're dead you tend to remain in that unfortunate condition. That fact coupled with the sure knowledge that our criminal court system is fundamentally flawed is a good case to discontinue capital punishment. It's also more expensive than keeping a criminal locked up for life ( And I say fundamentally flawed due to the political incentives to convict suspects. law enforcement and district attorneys have vested interests in achieving high conviction rates. Elections are won being "tough on crime." Once a suspect is charged, especially with a major crime such as rape or murder, the authorities have a lot to gain in getting convictions, no matter whether the suspect is actually guilty of the crime or not.
Please bear with me readers. Here are some interesting statistics provided by the Innocence Project:

There have been 273 post-conviction DNA exonerations in the United States.

The first DNA exoneration took place in 1989. Exonerations have been won in 34 states.

17 of the 273 people exonerated through DNA served time on death row.

The average length of time served by exonerees is 13 years. The total number of years served is approximately 3,524.

Eyewitness misidentification testimony was a factor in 75 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of these wrongful convictions. At least 40 percent of these eyewitness identifications involved a cross racial identification (race data is currently only available on the victim, not for non-victim eyewitnesses). Studies have shown that people are less able to recognize faces of a different race than their own. These suggested reforms are embraced by leading criminal justice organizations and have been adopted in the states of New Jersey and North Carolina, large cities like Minneapolis and Seattle, and many smaller jurisdictions.

As I write this the deadline to execute Troy Davis for the 1989 murder of off duty police officer Mark MacPhail, near a Savannah, Georgia Burger King (apparently fast food restaurants attract criminal activity) has passed. The state is apparently awaiting word from the Supreme Court of the United States on whether to stay the execution entirely... or not.
Throughout the years Mr. Davis, like Mr. Clark, has maintained his innocence, however there is no physical evidence whatsoever that links Davis to the crime. He was convicted on the eyewitness testimony of 9 people. Some witnesses claimed that Davis confessed to them. A man named Sylvester Redd Coles was the first to identify to police Davis as MacPhail's killer (he was shot in the chest and face with a .38-caliber gun). Davis was indicted for murder and some other charges. The district attorney sought the death penalty, and on August 28, 1991, the jury, composed of seven blacks and five whites, found Davis guilty on one count of murder and the other offenses. Two days later the jury recommended the death penalty and Davis was sentenced to death.
Subsequently, problems with the state's case has surfaced, like 7 of the 9 eyewitnesses recanting their testimony. Also malfeasance committed by law enforcement has been documented (the Savannah police contaminated the memories of four witnesses by re-enacting the crime with them present so that their individual perceptions were turned into a group one. The police showed some of the witnesses Mr. Davis’s photograph even before the lineup. His lineup picture was set apart by a different background. The lineup was also administered by a police officer involved in the investigation, increasing the potential for influencing the witnesses). And let's not forget there was no physical evidence whatsoever linking Davis to the crime. None.
Mr. Davis has been scheduled to die four times, the last being yesterday evening. A tremendous amount of public support for Davis's cause has manifested itself throughout the years, with nearly 700,000 people petitioning the Georgia parole board. Global figures like Pope Benedict XVI, Archbishop Desmond Tutu, former President Jimmy Carter, and even death-penalty supporters such as former Congressman Bob Barr, all urged the parole board to either commute his sentence or give him a new trial, and in this case I would tend to agree. The state loses nothing in commuting Davis's sentence to life in prison, if it does not grant him a new trial.
However, the Georgia parole board turned him down a few days ago, as did the state Supreme Court. It would seem Georgia is hell bent on executing this man no matter what.
"If a case like this doesn't result in clemency, which is a discretionary process that calls a halt to an execution based on doubt surrounding the integrity of the verdict, then it suggests that clemency as a traditional fail-safe is not adequate," says James Acker, a criminologist at SUNY-Albany. "The Davis case raises doubts about the discretionary clemency process and ultimately raises doubts about whether the legal system can tolerate this potential error in allowing a person to be executed.
I really think that the decision made in Georgia puts the assumption that executive clemency is a fail-safe in so much doubt that it ought to stimulate the legal system ... to revise, reform, revisit the formal legal process that results in convictions and allows sentences of death," says Mr. Acker. "In this case, the clemency process has failed."
What this means is that despite overwhelming evidence that the case against Troy Davis is exceptionally flawed, the review process, for whatever reason, has failed, and that perhaps it is time for a structural change in the criminal justice system itself.
As I mentioned before, crime, and changes to a system that gains convictions of accused criminals, is a political staple. The public, whipped into a frenzy by candidates (who in turn are whipped into a frenzy by the voting public) and common opinion, and the media, lust for swift justice for those accused of crimes, especially major crimes such as murder. It is an interesting, troubling, and horrifying indictment on our national psyche that during a recent debate between Republican presidential candidates, the attending audience broke out in applause at the mention of Texas Governor Rick Perry's record amount of state executions under his watch (of which a few are controversial themselves, the killing of innocent men being indicated). These Republican attendees, so called Christians, and "pro-lifers," tend to thirst for make belive vengeance at the drop of a hat. They remind me of the citizens of Rome gathered at the Coliseum to watch the bloodbath below.
As I write this Troy Davis is still alive due to the mercies of the State of Georgia who has every legal right to execute him once 7:00PM EST passed (it's now almost 9:30). It seems they are waiting for word from the US Supreme Court, which is expected tonight. By the time I post this sometime after midnight that decision most likely will have come down and Davis will either be dead or alive. We shall see.
Later today Troy presented the following statement... perhaps his last:
"The struggle for justice doesn't end with me. This struggle is for all the Troy Davises who came before me and all the ones who will come after me. I'm in good spirits and I'm prayerful and at peace. But I will not stop fighting until I've taken my last breath."

Troy Davis died by lethal injection at 11:08PM EST, September 21, 2011.

Amnesty International's "Not In My Name" pledge:

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