“Criminal justice issues have not loomed large in this campaign, for obvious reasons. However, since ‘the barrels of guns’ and the tips of lethal needles so often end up as the dispensaries of what pass for justice in our land, we must make certain that such matters are an important part of the transformation of the Obama years.
Almost twenty years after the merciless murder of off-duty Savannah, Georgia police officer Mark Allen MacPhail, Troy Anthony Davis, having likely exhausted his last appeal before the United States Supreme Court, will face execution by the combined citizenry of the State of Georgia, a sixty per cent majority of whom support such irretrievable punishment. A recounting of the procedural disposition of the case follows, an apt follow-up to this plea for Davis’s life, and the legal summary also then introduces an essay which makes a general judgment of the citizens of Georgia who fail to grant this plea.
At trial, the state offered no motive for the crime. No murder weapon was available. No physical evidence of any sort connected Davis to the killing. He arguably did have opportunity, at the least being in the vicinity of the fast food parking lot where the murder occurred. Nine eye witnesses graphically and uniformly described how Davis shot once under MacPhail’s protective vest and then delivered a coup de grace to the stricken man as he lay face up on the pavement. The jury convicted him and sentenced him to death.
Davis and his family consistently maintained his innocence, and appeals followed while the young man grew to middle age on Georgia’s death row. Over time, more and more details about the prosecution’s efforts came to light. Many witnesses received threats–of revoked probatioin, inquiries about various minor malfeasance that might have cost them liberty, among other things–that if they did not affirm Davis’ culpability, then they would find themselves caught up in criminal court.
Beginning in 1996, witnesses recanted, saying either positively that Davis was innocent or that they were completely uncertain as to who killed a father and honest cop on a steamy August night in Savannah. Half of the jury that condemned Davis indicated that their verdict would have been different had such facts as have come to light been in evidence at the trial. Still, none of this counts as “new evidence” for the highest court in the land. Despite grotesque doubt of a man’s guilt, Georgia will purposefully murder him. Reasonable people everywhere will shudder, of course, but they will also nod that ‘only in the South or only in America could this all transpire.’
A fascination with, aversion toward, and utter confusion about the United States are all paradoxically possible at the same point in time. To an extent, these seemingly incompatible feelings accompany the imperial position of hegemony that the U.S.A. currently occupies. In this context, what happens in the U.S., particularly when lives are at stake and oppression appears irresistible, deserves compassionate attention here and around the world. Legal matters, especially when capital punishment is at issue, are typical of this sort of important development that mandates a closer look.
Though I’m not an attorney, as a wordsmith I know that a fascination with language and meaning is a lawyer’s stock in trade. Just now, contemplating the term ‘accessory,’ in its criminal legal sense, seems particularly apt in the State of Georgia in the Southern U.S. A wide-ranging and authoritative definition of ‘accessory’ shows up in Black’s Law Dictionary and multiple other sources:
One who is not the chief actor in the offense, nor present at its performance, but in some way concerned therein, either before or after the act committed; one who aids, abets, commands, or counsels another in the commission of a crime. Accessory after the fact–person who, knowing a felony to have been committed by another, receives, relieves, comforts or assists the felon, in order to enable him to escape from punishment, or the like. Accessory before the fact–one who orders, counsels, encourages, or otherwise aids and abets another to commit a felony and who is not present at the commission of the offense. Accessory during the fact–one who stands by without interfering or giving such help as may be in his power to prevent the commission of a criminal offense.
Inasmuch as any Georgia resident, who is not actively protesting the pending execution of Troy Anthony Davis, either is or ought to be aware of this coming killing, such a one is quite likely about to become every sort of accessory to this still young man’s judicial murder, which, if Davis is innocent, is at the very least a negligent homicide. Let me be completely clear: this means that not only would Governor Sonny Perdue and most of the State’s legislature be culpable for what is as likely as not a major felony, it would mean that the several million Peach State occupants who are doing nothing would also be chargeable, in that their silence and inattention, or, in far too many cases of misguided vengefulness, their active support and direction, provided aid and comfort to the actual executioners.
Undoubtedly, someone viciously killed Mark Allen MacPhail on August 19, 1989. Just as obviously, a Savannah, Georgia jury convicted Troy Davis of that brutal murder in August, 1991. Lacking physical evidence that Mr. Davis was the killer, however, or any circumstantial evidence other than his presence at or near the scene, where off-duty officer MacPhail was attempting to break up a parking lot melee, Chatham County prosecutors relied on the testimony of nine eyewitnesses to make the charges against Troy Anthony Davis stick.
Today, seven of those nine observers take back their testimony, admitting that they cannot state with any certainty who pulled the trigger and slayed an honest cop doing good work. At least four of the seven retractors currently insist that police threats–of various sanctions against them with criminal consequences–played a gigantic role in suborning perjury against an innocent man who will die in a few weeks at our collective hands. Mark Allen MacPhail’s death is a fact; that someone gutlessly murdered him is a fact; Troy Anthony Davis’ conviction for that soulless crime is a fact.
But we should make no mistake: given copious other facts that are now at hand, including and in addition to the recantation of over three quarters of the eyewitnesses who formed the sole basis for the State’s pinning this act on Mr. Davis in the first place. His actual guilt is at best one possibility among many others to account for the cretinous and hateful destruction of Officer MacPhail’s life.
Thus, at the very least, a significant possibility exists, a possibility that any reasonable person would acknowledge adds up to a “reasonable doubt,” which was obviously unavailable to jurors in Savannah in August, 1991, that Mr. Davis, an innocent man, has served over seventeen years in prison, almost all 205 of those months on death row, for something that he did not do. The conviction, furthermore, rests of tainted testimony that police extracted from ‘witnesses’ using extortionate means. Moreover, of course, all Georgians who do not insist that he receive clemency are in one way or another playing a role in the upcoming murder of Troy Anthony Davis, which will be, if he is guiltless, at least as sinister and cruel and stupid as the killing for which he may soon lose his life.
In a word, passively or actively, millions of Georgians are about to become accessories before, during, and after the fact to a homicide that even those who count themselves staunch advocates of capital punishment can only claim is possibly, or at most probably, a justifiable taking of human life. Obviously, these millions of ‘accessories’ will never face justice for their acts. Procedural layers of contemporary law protect them as seamlessly as a kevlar vest would fend off a BB gun.
Perhaps those who bother to read this missive will take comfort in their legal blamelessness, even as Troy Anthony Davis suffocates on a ‘cocktail’ of lethal poisons administered by agents of the Georgia citizenry. Nevertheless, to execute a blameless bystander for a horrifying homicide merely compounds the crime; not only does no one responsible face justice, but also all of those who impassively watch the new killing become morally culpable, whatever escape clauses permit them to evade proper criminal blame.
I for one refuse to stand with the murderers, and I pray for an upwelling and outpouring of support to the same effect. I’m not a particularly religious person, but if Troy Anthony Davis dies at the hands of Georgia’s criminal authorities, then the vast majority of this State’s citizenry deserve a common epithet delivered to the guilty: “May God have mercy on their souls.”
Why should someone who is not a Georgia resident care about this? One might easily pose the question of a resident of Maine, or California, or Europe or Asia or elsewhere who looks askance on the bigotry and brutality so characteristic of oxymoronic “Southern justice.” The answer depends on the individual in question.
Does he or she complain about imperious American actions? Or does he or she long for a world with more of a balanced distribution of power? For the resident of other states: do they ever deplore that a cretin like George Bush stole the Presidency? Do they ever wish for fairer criminal justic policies, a rejection of fascistic laws such as the U.S.A. Patriot Act, or a general diminution of the power of the ‘prison-industrial-complex?’ For non U.S. citizens or non Georgia residents who never ponder issues such as these, or who feel in fact that everything is more or less hunky-dory on the planet earth, the answer to the initial question in this paragraph is simple. “They needn’t care a bit about Mr. Davis’ murder by the State and the accessory status of Georgia’s citizenry.”
But for anyone else, anyone who knows, with Hamlet, that “something is rotten” indeed in the State-of-Everything-on-Earth, the answer to the first interrogatory above is simple, but not quite so easy. To them, a concerned observer might suggest, “people who want significant reform need viewpoints that proffer something to fight the powers-that-be. Being able to note, with complete accuracy, that most Georgians are culpable for an innocent man’s murder, because they are too vicious, lazy, bigoted, or ignorant to be other than criminal accessories to such a crime,” sounds to me like ammunition in the battle about what kind of future we hope to fashion for our progeny. In any event, that’s my story, and I’m sticking to it.” Jim Hickey: Red-State Bloody Hands–Accessories, Before, During, & After the Fact”