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‘Beyond a Reasonable Doubt’ – Part 11

A reader comments:

This post utterly fails to address whatsoever the unique, extremely rare, and voluminous and exhaustive opportunities Davis was given to appeal a jury verdict determined beyond a reasonable doubt. It ignores the appeals process, the applicable standards of review, the fact he was given an entirely separate evidentiary hearing which concluded the alleged “new” evidence was largely smoke and mirrors.

You are right, the post did not address these things.   I don’t think there is any question that ‘the applicable standards of review’ were followed in an exhaustive effort by all concerned.   The legal process was observed.

I am ambivalent on the death penalty.  But this case was decided based on circumstantial evidence, witnesses who later recanted and without physical evidence linking Davis to the murder.  Davis may or may not have been innocent.  One of those recanting testimony may have been the killer.  From what I’ve read, two killings with a .38 revolver occurred the night of the shooting and .38s are common. One the other hand, the prosecutor didn’t call an important witness back to testify on behalf of the defense.  This was puzzling and may have indicated problems with the defense.

This case was certainly chosen to be publicized (politicized) by anti-death penalty advocates.  Death row inmates have been freed on DNA evidence, but that may not be enough ‘reason’ for the Supreme Court to once again hear a case on the constitutionality of capital punishment.

If the strategy of anti-death penalty advocates is to find a case in which it can be confirmed that an ‘innocent man’ is put to death, I don’t understand why this one would be considered.  Without Davis getting a new trial in which he was found innocent, can a case be made that an ‘innocent’ man died?  Maybe a ‘possibly innocent’ man. But the Georgia officials were careful to dot their ‘i’s.  And if Davis were given another trial and found not guilty, then the anti-death penalty lobby wouldn’t have a case to bring to the Supreme Court.

My own belief is that the number of death row inmates released on DNA evidence is enough for the Supreme Court to overturn capital punishment.  I’m not a lawyer but this is a question of policy and public consensus.  There may be no way to ‘prove’ the death of an innocent man other than DNA evidence.  But the gates of hell would justifiably open for any court that orders such a test after an execution.



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“Beyond a Reasonable Doubt”

This is the standard that jurors are instructed to follow.  Yet, despite evidence that Troy Davis, a death row inmate in Georgia, was not the killer of an off-duty policeman, the Georgia board of pardons denied him clemency.  He is to be executed tomorrow.  The case has drawn international attention.  Even Pope Benedict, a stern enforcer of morals as defined by the Catholic Church, has asked that Davis be pardoned.  The US is the only democratic country that uses the death penalty.  Most consider it barbaric. The question to ask is:  what possible value of deterrence could killing Mr. Davis tomorrow have?  None.  Study after study show that capital punishment does not reduce crime.  Empirically this is true because the US continues to have high rates of crime compared to other developed nations. A fact-based reasonable doubt has been cast, outside the courtroom and through appeals, on Mr. Davis’s guilt.  It is unconscionable that the benefit of the doubt doesn’t go to  Troy Davis. From the Christian Science Monitor:

Pope Benedict, President Carter, and former FBI head William Sessions were among nearly 700,000 people around the world who campaigned, via signatures and testimony, that Mr. Davis’s life be spared after seven of nine witnesses to the 1989 murder of off-duty Savannah, Ga., police officer Mark MacPhail changed or recanted their testimony in recent years. The parole board appeal was a last-ditch effort for Davis after the Supreme Court, in a highly unusual move, demanded a district court review of the case last year. In the end, the review found that new evidence and changes in witness testimony didn’t substantially affect the validity of the original 1991 murder conviction.

I find it interesting that so many Americans are quick to indict Iran for a provincial decision to stone to death an adultorer.  The Iranian justice system, for all its weakness and hypocricy, does not call or allow for stoning adultorers.  Now, a lot of the world will look at the provincial decision of the Georgia penal board, which refuses to error on the side of a defendent where 7 out of 9 trial witnesses recanted their testimony.

The point is not proving Troy Davis is innocent.  It’s demonstrating there is a reasonable doubt about his guilt. Now international observers will assume that this provincial decision by Georgia flows from the law of the land.  Unlike Iran and stoning, they’ll be right.


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SEC Accused of Shredding Vital Documents

I first read about this today in MarketWatch, an on-line market info site owned by Dow-Jones.  I quickly switched to Rolling Stone which broke the story.  In a thorough, investigative piece, RS  writer Matt Taibbi uncovers not just the unauthorized destruction of documents by SEC staff, but exposes the dynamics behind Washington’s ‘revolving door’ culture, in which agency officials charged with policing the financial industry end up being ‘hired’ (rewarded?) by those companies they had previously been investigating.

It is a fine piece of investigative journalism:

For the past two decades, according to a whistle-blower at the SEC who recently came forward to Congress, the agency has been systematically destroying records of its preliminary investigations once they are closed. By whitewashing the files of some of the nation’s worst financial criminals, the SEC has kept an entire generation of federal investigators in the dark about past inquiries into insider trading, fraud and market manipulation against companies like Goldman Sachs, Deutsche Bank and AIG. With a few strokes of the keyboard, the evidence gathered during thousands of investigations – “18,000 … including Madoff,” as one high-ranking SEC official put it during a panicked meeting about the destruction – has apparently disappeared forever into the wormhole of history.

The corporate line will of course be: if they couldn’t come up with enough to launch a full investigation against our company, then we are without liability and should not be tainted ‘on the record.’  Taibbi easily dismisses that argument:

Flynn (the wistle-blower, ed) discovered a directive on the enforcement division’s internal website ordering staff to destroy “any records obtained in connection” with closed MUIs. The directive appeared to violate federal law, which gives responsibility for maintaining and destroying all records to the National Archives and Records Administration. Over a decade earlier, in fact, the SEC had struck a deal with NARA stipulating that investigative records were to be maintained for 25 years – and that if any files were to be destroyed after that, the shredding was to be done by NARA, not the SEC.

This story, originating in Rolling Stone, has begun circulating in the financial press.  Even with the shredding of important preliminary investigative information, it would be far-fetched to think that the SEC lacks the information and facts that could lead to enforcement action and possible criminal charges against white collar criminals implicated in the 2008 financial crisis.

Senator Chuck Grassley, Iowa, top Republican on the Senate Judiciary Committee, is on the case:

“From what I’ve seen, it looks as if the SEC might have sanctioned some level of case-related document destruction,” said Sen. Chuck Grassley, Republican of Iowa, in a letter to the agency’s chairman, Mary Schapiro.It doesn’t make sense that an agency responsible for investigations would want to get rid of potential evidence. If these charges are true, the agency needs to explain why it destroyed documents, how many documents it destroyed over what timeframe, and to what extent its actions were consistent with the law.”

It sure does.

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London Aflame!

I read five articles yesterday before even one bothered to inform me about the police ‘incident’ that started the rioting.   This says a lot about the universal lousy coverage being given to the largest British riots in decades.  From what I could tell, the police stormed the home of a ‘known’ drug pusher and in the ensuing scuffle, killed him.  Latest from The Guardian

Huge questions remain:

Were bullet fragments from accused’s gun found in police radios?

How did the riots get out of control so fast?


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Antrax Investigation Again Doubted

The government’s statements deepen the questions about the case against Ivins, who killed himself before he was charged with a crime. Searches of his car and home in 2007 found no anthrax spores, and the FBI’s eight-year, $100 million investigation never proved he mailed the letters or identified another location where he might have secretly dried the anthrax into an easily inhaled powder. . . . – Glen Greenwald, Salon

As incredible as it sounds, major doubts are surfacing about the FBI’ s case against Bruce Irvin, who committed suicide four years ago rather than be accused of the crime.

This entire case has been bizarre.  First, the Feds were sure that Dr. Stephen Hatfill was responsible for the deaths of five people in 2001.  He was hounded mercilessly for years by FBI agents as well as the media.  The NYT virtually tried and convicted him on its front page.

Then, suddenly, the FBI said it was wrong: the real culprit was Ivins.  Although admitting their case against Ivins was circumstantial, the FBI insisted it was slam-dunk.  Now, however, the Justice Department admits that Dr. Ivins’ laboratory, when seized by the FBI, did not have the equipment necessary to weaponize the anthrax strain he studied professionally.  Scientists who worked with him insist he could not have ‘grown’ the amount of anthrax spores associate with the attack without his colleagues knowing about it.  Other microbiologists are demanding that the FBI investigators release more information on the scientific method that led them to their conclusions.

In excerpts from one of more than a dozen depositions made public in the case last week, the current chief of of the Bacteriology Division at the Army laboratory, Patricia Worsham, said it lacked the facilities in 2001 to make the kind of spores in the letters.

At issue is 1) the FBI’s competency to protect against domestic terrorism; and 2) whether the FBI gave sufficient attention to the possibility of a foreign agent sending the lethal spores through the US Post Office to select Congressional office and media.

Greenwald’s piece provides extensive links to scientific journals, mainstream media and individual scientists who are skeptical of the FBI investigations.




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How Could Rupert Murdoch Possibly Not Know?

It defies reason. The blatant continuation of phone-hacking by News Corps reporters for four years after the first culprits were arrested might be overlooked in an Inspector Clouseau satire for The Onion.  But if the Rupert family expects us to believe it did not know something was amiss in the empire, their contempt for the public is even greater than their contempt for the law.


It’s unbelievable that Rebeka Brooks, one of the editors during the hacking years, did not know what her reporters were doing.  As a corporate media executive, she must have had a system in place to vet reporters’ articles and verify their sources.  If she didn’t, she committed a gross violation of journalistic standards or deliberately left oversight loose to accommodate a ‘plausible alibi.?  Where did she think all the hot-off-the-press stories coming from?  How were her reporters getting such sensational material?

And it defies logic that Rupert Murdoch did not follow the ‘scoops’ his flagship newspaper and sentimental favorite, News of the World, uncovered. scoops that drew 2.5 million to its Sunday edition.   Again, one One would expect a CEO to more aggressively monitor their investigative units than any others, especially when reporters from those units had been convicted of wrongdoing in the past.  If News of the World failed to implement new systems to insure integrity within its investigative teams after the original arrests in 2007, that is enough to infer their complicity in what happened afterwards.

The sleaze drips down the cozy relationship between British politicians and News Corporation executives.  Why in the world would the British PM need to meet officials of News Corp. 26 times in 18 months?   Why would the head of Scotland Yard meet News Corp. executives 18 times during his own police investigation of phone-hacking?

This is political pornography. The real shock is that all this went on openly, as if all the players were sure that ‘nobody else’ would find and follow their trail.  Unfortunately, the code of silence worked for years.

The Greeks got it right 2500 years ago.  The great and powerful are brought down by a fatal flaw they don’t see in themselves . Hubris destroyed Oedipus as fast and surly as it did DSK and the lengthening list of executives associated with the Murdoch empire.   Of course, Oedipus took honorable action: he cut out his eyes because they didn’t ‘see.’  Once the tread is caught, it quickly unravels.

Bloomberg: (UPDATE)

Independent directors of New York-based News Corp. have begun questioning the company’s response to the crisis and whether a leadership change is needed, said two people with direct knowledge of the situation who wouldn’t speak publicly. Rebekah Brooks, the former News International chief who Murdoch backed until last week, was arrested yesterday in London.

“The shell of invulnerability that Rupert Murdoch had around him has been cracked,” said James Post, a professor at Boston University’s School of Management who has written about governance and business ethics. “His credibility and the company’s credibility are hemorrhaging.”









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Writing in The Daily Beast, Marcia Clarke,  prosecutor in the O.J. Simpson case, explains why she thinks jurors acquitted Casey Anthony:

By confusing reasonable doubt with a reason to doubt. Some believe that thinking was in play in the Simpson case. After the verdict was read in the Simpson case, as the jury was leaving, one of them, I was later told, said: “We think he probably did it. We just didn’t think they proved it beyond a reasonable doubt.” In every case, a defense attorney will do his or her best to give the jury a reason to doubt. “Some other dude did it,” or “some other dude threatened him.” But those reasons don’t necessarily equate with a reasonabledoubt. A reason does not equal reasonable. Sometimes, that distinction can get lost.

The normal confusion jurors face in interpreting court instructions was exploited by the defense who, as in the O.J. Simpson case, threw all sorts of improbable, even impossible counter-ideas at the prosecution’s case to see if any would stick.  Instead of the standard being based on what a rational man would consider ‘reasonable doubt’ maybe it should be based on a skeptical man making a rational choice.

Nullification in court cases means the jury ignores the facts as presented and decides a verdict based on some other consideration or one that doesn’t follow rational argument.

American nullification is not limited to court cases.  It’s all around us.  The same non-logical thinking has become  a troubling factor in politics.   The ultimate goal of the ‘birther’ movement was to nullify a popular election won by President Obama with a sizable margin.  The President took flack for being a Christian in the ‘wrong’ Christian church.  When that didn’t work to turn voters away, some of his same opponents  spread the word he’s Muslim.  Evidence?  His father, who left the family when Obama was two, was nominally (a non-practicing) Muslim, and a picture from of Mr. Obama in traditional tribal (pre-Islamic?) dress  taken during a trip to Africa.  In the face of other ‘evidence’, namely a life history, these are irrational conclusions.

Conservatives have injected several forms of nullification into public policy debates as well.  One popular technique is the ‘slippery slope’ – take a few disconnected ideas, string them together into a hybrid concoction and declare they will inevitably lead to an unwelcome, even outrageous, outcome.  Invoking a straight line down the slippery slope from requiring peer review to assess ‘best medical practices’ and concluding the health care legislation, in doing so,  calls for ‘death panels’ to judge who will live and die is magical thinking.  President Bush strung Iraq, Al Queda and MWD together to win support for invading Iraq.

And each Party is guilty of deliberately taking parts of legislative language out of context, making it seem to be saying altogether different or opposite of what it does. Obama became an advocate for sex education in kindergarten because someone quoting Illinois legislative omitted the ‘not’ at the beginning of the page  which changed  ‘disallowing’  an action to allowing it.

You can put on any talk show and learn all the hair-slitting reasons you are wrong to support immigration reform.  You don’t really have to think, to judge, to analyze and compare.  You just buy into a ready-made argument.  So when you walk into a courtroom and hear hair-slitting definitions of ‘reasonable doubt’ and confusing judicial instructions, many jurors, including these, doubt their own ability to think things through and make a logical, hard choice.  They take the path of least resistance.





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De Tocqueville Betrayed

The media coverage and attention-grabbing shenanigans of the O.J. Simpson trial almost twenty years ago look tame by today’s standards.  America needs a backlash against overindulgent, superficial, self-satisfying media personalities who pass themselves off as ‘journalists’ and claim they deliver ‘what the viewers/readers want.’   In the past, the NYTimes own reporters may have themselves come upon the inconsistencies in the case instead of just reporting six weeks later what the AG’s office discovered.  The excuse that ‘we give people what they want’ just doesn’t wash it anymore.  Commodus, the most infamous of late Roman dictators, gave his people what they ‘wanted’ also: gladiator and human-against-wild beast shows reduced Roman culture to venal, gross distractions while he whittled away the Empire’s defense.

The most serious result of the NY AG’s office inept handling of the DSK will no doubt be its effects on women’s willingness to report rape and their subsequent ability to get over the trauma in one piece.  New York prosecutors are responsible for igniting a media circus around sex and power can set back progress made in the US to put strong anti-rape laws on the book and is of special concern to French women.

“I hope this is going to help the victims to speak,” Ms. Nini {French writer about girls and teens) said. “If D.S.K.,” the initials by which Mr. Strauss-Kahn is known here, “is really guilty, I think this affair {exposing the jerk} is going to help women,” she said. But if he is found not guilty, she said, “there is a risk that women will not be taken seriously anymore….others pointed to interviews with nine female politicians published May 31 in the daily Libération, under the headline, “Sick of the machos.” They described “incredibly gross jokes” in the National Assembly and feeling the need to wear trousers to make a speech.

The scathing remarks by the French about the ‘brutal’ intersection of media, criminal justice, power and publicity that drive these high-profile cases should give Americans a different type of pause.


In an editorial this weekend, Le Monde wrote that “the least one can say is that the vagaries of the American procedure” had “condemned Dominique Strauss-Kahn before even the start of a serious inquiry.” Criticizing the “media-judicial machine,” the paper said the costs to Mr. Strauss-Kahn were heavy, including the loss of his job and his political future. The paper said that with the American system of an elected prosecutor dependent on the voters and the way it functions with the press, with police leaks and “terrible photos illegally transmitted to the press and then also illegally reproduced by certain newspapers — everything was done to place Mr. Strauss-Kahn in a situation of extreme weakness before even the beginning of an inquiry.”

This belies the great 19th-century Frenchman and political philosopher, Alexis De Tocqueville, who definitively captured the American psyche in his famed book, “Democracy in America.”  After declaring his admiration of the ‘most democratic country in the world’ and his faith in the down-to-earth, equitable spirit of the American people over 150 years ago, he’s turning over in his grave today.

Noëlle Lenoir, a former European affairs minister, said many French felt insulted. “People were shocked by the media circus,” she said. “They thought the prosecution was making common cause with the tabloids. So there is a bit of revenge for what is seen as very anti-French behavior.”


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