Justice Delayed Long Enough For Mark MacPhail

September 15, 2011 13:00 pm

by Charlie · 31 comments

Today’s Courier Herald Column:

Mark MacPhail was the kind of guy most would like to be. A young father of a two year old daughter and seven week old son, the former Army Ranger was working two jobs to support his wife and family. A member of the Savannah police force, MacPhail was working his other job as a security guard in a bus station when he responded to a cry for help outside. That August day in 1989 was Mark MacPhail’s last, as a gunman shot him once under his protective vest, and again as he fell.

Mark MacPhail’s name is not on the news much these days, as it is now 22 years since his murder. The case is more commonly now called the “Troy Davis case”, as it is Davis, convicted of MacPhail’s murder, who sits on Georgia’s death row. Davis’ current execution date is set for next week, on September 21st.

The plight of Davis has garnered national attention, with many disparate groups painting him as a victim. His attorneys and death penalty opponents have waged a decades-long media campaign to assert that Davis is innocent, in jail because of mistaken identity. Claims have been made of witnesses changing stories and jurors having second thoughts. The reality is that most of the claims of witnesses recanting are from witnesses who acknowledged that they never read the police prepared sworn statements which they signed, despite the fact that they also gave testimony to the material in the statements saying the information was true and correct.

Davis’ pending execution has drawn the attention of disparate leaders such as former President Jimmy Carter and former Republican Congressman and Libertarian Presidential Nominee Bob Barr. National media is beginning a drumbeat that Georgia is about to execute an innocent man.

Troy Davis was convicted by a jury of his peers. He is a murderer. He killed a police officer. In the eyes of the law, these have now been determined as fact.

The issue of new and/or recanted testimonies has been appealed to the Georgia Supreme Court and the United States Supreme Court. It should be noted when the Georgia Supreme Court last heard Davis’ appeal in 2008, the court had not yet begun its current slight shift toward conservatism.

Allowing witnesses to change testimony or jurors to admit to second thoughts twenty years after trial is not a precedent which our justice system needs to set. Jurors on death penalty trials already understand the gravity of the vote for which they cast, and know it is something they will have to live with for the rest of their lives. Knowing that they will be pursued for decades by defense attorneys and those who wish to use them to attempt to end the death penalty is not part of the jury duty bargain, nor should it be allowed to become one.

Likewise, witnesses are cross examined during trial by the defense. It is standard operating procedure to claim that the few who ever make it to a death sentence received a sub-standard defense, thus essentially asking the courts for a do-over. The trial procedures have been reviewed by both the Georgia and U.S. Supreme Courts, with each allowing his trial and verdict to stand.

It is natural, and very human, to feel compassion for Troy Davis. It is noble to pursue the ideal that it is better that a guilty man go free than an innocent man be put to death. If there is to be a meaningful concept of justice, however, there must also be a balance between the prosecution and the defense. In our system, every tie goes to the defense, whereas a death penalty verdict must be unanimous.

This case, scheduled to end Wednesday night, is not the Troy Davis case. It is the Mark MacPhail case. It is about justice for him, his wife, and two children who have little to no memories of a man who served his country and his city with distinction. It is also about jurors who sat in judgment and voted that a man should die because of his actions to take the life of Mark MacPhail, and those who will sit on future juries forced to make similar difficult decisions.

There should be no celebration next Wednesday should this case finally be closed with the execution of Troy Davis. His death will not bring Mark back. It will not provide Mark MacPhail Jr with memories of a childhood that were stolen from him. It will, however, provide some degree of closure, and a very belated sense of Justice.

Scott65 September 15, 2011 at 2:36 pm

Everything I have read, and know, and believe leads me to be horrified by what you’ve written. The witnesses were coerced…not something all too uncommon in S. Georgia at that time. Also, there is that little detail about a confession of someone else to the killing. I have all the sympathy in the world for the victim, but I dont think there is anyone that can say with 100% certainty that this man is guilty of the crime, and if you cant say that he should not be executed. I am not saying he should be freed yet, but there is certainly reasonable doubt. I dont want Davis’s blood on my hands as a resident of Georgia if he is not guilty. You should be ashamed writing this piece, and may God have mercy on you if you are wrong

OleDirtyBarrister September 15, 2011 at 6:35 pm

Then you have not read and do not know enough. Read the link to Spencer Lawton’s op-ed and get the other half, which the MSM, including the AJC, and the death penalty opponent mouthpieces conveniently ignore. Material facts like Davis shot another man earlier in the evening and left the scene, and after leaving and fighting with others, the officer responded to a disturbance call. Davis was convicted of that crime. Physical evidence allowed prosecutors to link Davis in both shootings and put together his course of crime that evening.

Why is the defense is ignoring the conviction in the first shooting if it was truly a case of “mistaken identity.”? Does his proper identification in the first shooting make him less sympathetic and easier for the people in the court of public opinion to conclude that he probably shot the officer too?

If Davis were correctly identified in the first shooting by people who were there an knew him, doesn’t it make it less likely that people would believe he was misidentified in the second? Particularly when there is physical evidence linking him to both?

Davis’ problem is that there was enough physical evidence to prove his guilt beyond a reasonable doubt even without the testimony of those jurors who have admitted that they are liars. In other words, if the jury had disbelieved every single one of them, there was still enough to convict him.

Viewing this on a greater, systemic basis, does it make sense to give him a redo and try him again if the physical evidence would command a guilty verdict even if the state omitted the testimony of the witnesses who are now swearing that they are telling the truth about lying the first time around? No it doesn’t. The legal system does not undertake futile acts.

jm September 16, 2011 at 8:22 am

All of the crimes from that day were lumped together in one case. Cooper says he doesn’t think Davis shot him. Yes, the bullets were linked, but Davis has not been linked to the bullets – therefore still no physical evidence linking him to the crime.

Comfortably Southside September 16, 2011 at 12:21 am

@Scott,

You have been watching to much TV. Rest in Peace Mark McPhail.

griftdrift September 15, 2011 at 2:41 pm

He received an evidentiary hearing at the appellate level. Something that has not been done in 50 years. The judge could not find reasonable doubt. It is done.

All the bloody and insulting rhetoric in the world will not change this fact.

OleDirtyBarrister September 15, 2011 at 6:25 pm

Reasonable doubt is not the standard on that type of hearing. After a conviction, there is no presumption of innocence, and deference is shown to a jury verdict. The convicted felon must prove innocence by clear and convincing evidence.

griftdrift September 15, 2011 at 6:41 pm

I understand that. But the judge pointed it out in the ruling that their was not sufficient doubt. You being an a$$ to people who agree with your side doesn’t really help. Not that I believe you give a flip.

Theresa September 15, 2011 at 2:41 pm

As the significant other of a law enforcement officer, as a person who has mixed feelings about the death penalty, and as someone who supports the MacPhail family, I am incredibly grateful for this article.

Charlie is right. This is about justice. We live in a country where our justice system allows for a jury of peers to try those convicted of crimes. What freedom we have in that! Our system is far from perfect, but I challenge you to find a country that does it better. The jury heard the case, deliberated for over seven hours and then gave their verdict.

Also, take a look at this article from 2008: http://savannahnow.com/troy-davis/2008-10-18/lawton-troy-davis-verdict-correct

Thank you, Charlie, for supporting Law Enforcement and the American Justice System.

OleDirtyBarrister September 15, 2011 at 6:39 pm

Everyone needs to read Lawton’s op-ed. The AJC and media at large are not presenting all the facts and are carrying the water for the anti death penalty folks.

BabyCorvid September 15, 2011 at 4:22 pm

Finally – justice for Mark MacPhail. May he rest in peace.

CobbGOPer September 15, 2011 at 4:23 pm

I think we should eliminate the death penalty. It’s not like it’s a deterrent anyway; murders still occur every single day in every part of this country. It is simply our continuing refusal to let go of the misguided concept of an “eye for an eye.” Life in prison is just as effective in removing a violent murderer from the streets. And surprisingly, cheaper.

Gary Cooper September 15, 2011 at 9:40 pm

Life in prison would be just as effective, except not everyone fulfills that sentence. Some of these criminals are actually up for parole after many years and the victims families have to re-live the horror of the original crime and plead the parole board for justice to continue to be served and at times these losers are still let go. The death penalty could still be a deterrent, but unlike generations ago, death penalty cases are fewer and it takes a considerably long time for justice to be carried out.

Toxic Avenger September 15, 2011 at 5:02 pm

I’m a proponent of the death penalty. An avid one, at that.

But the purpose of the death penalty is to resolve a case in which there is no possible way there could be error. A case that is so egregious as to merit the death of the one who committed it.

Troy Davis may well be guilty. But the fact remains: 7 of 9 witnesses have recanted their testimony in full, some of them even saying that the police coerced them into making their testimony. This throws doubt to the whole case.

Look, very few people are calling for the immediate release of Troy Davis. Because, as many have pointed out correctly, he was found guilty in a court of law. But the fact remains– can we as a society condone the governmental killing of a man whose guilt was predicated on testimony that has since been recanted?

griftdrift September 15, 2011 at 5:10 pm

“This throws doubt to the whole case.”

A judge disagreed.

Toxic Avenger September 15, 2011 at 5:29 pm

Common sense doesn’t. The death penalty is not one with which to mess around. That’s my point. I never said he doesn’t deserve life in prison. But to sentence a man to death when year after year, the case surrounding his “guilt” crumbles and falls? That’s not what the death penalty is for.

If you know nothing about the law, know this: “a judge” is not always right.

griftdrift September 15, 2011 at 5:32 pm

Never said a “judge” was always right. That’s twice that argument has been used in the last 15 minutes. But at some point the process has to be concluded. In this case, the process was taken to extraordinary means and still reached the same conclusion.

CobbGOPer September 15, 2011 at 6:39 pm

But we all know the legal system won’t do everything it possibly can to cover up a mistake, right? Right?

joe September 15, 2011 at 6:47 pm

If you think that Davis deserves life in prison, then you must think he is guilty. If he were innocent, he would deserve no punishment.

He is guilty. His appeals have run out. It is time.

Gary Cooper September 15, 2011 at 9:42 pm

And not just one judge, but several panels of judges too.

KD_fiscal conservative September 15, 2011 at 5:48 pm

The way I see it, painlessly executing someone via “the shot” isn’t justice anyway. That simply takes them out of the mental anguish that is incarceration. Confining murders to prison w/o the possibility of parole, and letting them know they will die there is a much worse punishment, “putting them down” is giving them the easy way out.

OleDirtyBarrister September 15, 2011 at 6:23 pm

Charlie:

I don’t think much of your commentary because all you did was speak about concepts and platitudes. To make an effective commentary, it should deliver what the AJC, the rest of the liberal media, and the death penalty opponents would not, and that is a critical examination of the facts that support the conviction irrespective of the witness’ testimony.

The AJC and others carrying the water on this case don’t start the story or even expound on it in the middle or end with the fact that Davis shot another man earlier in the evening and was convicted for that. Nor do they address the physical evidence by which they linked Davis to both shootings, such as shell casings and blood spatter. the lady above posted a link to the Spencer Lawton op-ed that gets into that.

The bottom line is, there was sufficient evidence in the case to support a conviction without the testimony of the witnesses that now swear that they are telling the truth when they say they were lying 20 years ago. The water carriers insist that these admitted liars should be believed now, 20 years after the fact, not when they were testifying under oath and subject to cross examination.

I think that it would be pretty funny if Davis finally admits at the threshold of his execution that he did it and asks for forgiveness. What will all the libs have to say then?

Cassandra September 15, 2011 at 9:25 pm

Charlie,

One point of view really resonates with me – You mentioned Mr. Mark MacPhail six times in the headline and lead. To me, the power of your story is about Mark McPhail’s life and the family who lives with his memory.

Though the legal points and the death penalty are important to the killer, memorializing Mark McPhail’s life is paramount. For whatever reason, virtually every major capital case becomes known by the killer’s name – Wayne Williams, OJ, Susan Smith, etc. We can see and hear the accused, so we can identify with them.

Soon the man accused of killing Mark McPhail will die by the legal reckoning of those we entrust with life and death decisions – a judge and a jury.

May God have mercy on them all.

jm September 16, 2011 at 1:16 am

1. Better a guilty man go free than an innocent man be executed. And in this case, no one is asking that Troy Davis go free.

2. How many of you truly understand our justice system? By many of your posts, it seems very few. A trial is NOT a case where all the evidence is laid out and the truth is revealed. A trial is a battle between two legal minds who try to convince 12 people where the truth may lie. They don’t always find the truth, and those 12 people get it wrong sometimes:

Michael Anthony Green
http://www.foxnews.com/us/2010/07/30/texas-man-walks-free-serving-years-rape-didnt-commit/
A Texas man who has spent the last 27 years imprisoned for a rape he didn’t commit is free.

Cornelius Dupree Jr.
http://news.blogs.cnn.com/2011/01/04/innocent-man-jailed-since-1979-likely-to-be-freed/
Innocent man jailed in Texas since 1979 now free
A Texas man imprisoned 30 years ago on aggravated robbery charges had his conviction overturned on Tuesday after DNA evidence exonerated him.

http://www.wktv.com/news/local/37333924.html
Steven Barnes fully exonerated for 1985 rape and murder charges

Chad Heins grinned victoriously as he emerged from the Duval County jail Tuesday afternoon, hugged his lawyers one by one, then stepped outside as a free man for the first time in 13 years.
http://jacksonville.com/tu-online/stories/120507/met_222873110.shtml

http://www.fox2now.com/ktvi-foxfiles-innocent-man-021809,0,6905333.story
Josh Kezer Released After Serving 16 Years For a Murder He Didn’t Commit

James Bain was finally set free on Thursday and used a cell phone for the first time. He called his mother to tell her he was out after 35 years behind bars for a crime he did not commit.
http://www.deccanherald.com/content/42024/innocent-man-spends-decades-jail.html

There are more than 250 cases where innocent people have been held, many for decades, some of them on death row with execution dates. And those people have been freed. Troy Davis could be innocent, and that’s why people are asking that his life be spared. But there isn’t enough evidence out there to say he should be freed, either. The truth lies somewhere, and until we know it for certain, a man’s life should not be in jeopardy.

The fate of Troy Davis’s soul lies with actions that may be known only to him and his maker. But the reality is, if the prosecutor is wrong, if the jury was wrong, if the witnesses were wrong, if the police were wrong, if the parole board and the governor are wrong, it isn’t just Troy Davis’s soul that is in jeopardy.

Calypso September 16, 2011 at 10:20 am

You forgot to mention the O.J. case.

jiminga September 16, 2011 at 10:22 am

That’s a lot of “ifs”. If pigs could fly…….

Seriously, if the appelate court, the GA Supreme Court and the US Supreme court all failed to overturn the conviction, who are we, who only know what we have read, to disagree with the fully tested result of our justice system. And to add support for that system, it took 20 years for the final decision to be handed down.

Enough is enough…may Satan welcome Davis at the appointed time.

griftdrift September 16, 2011 at 11:24 am

My favorite part of people who appear to be saying keep retrying the case until we get the result they desire, is the way they avoid condescension with those who disagree.

“How many of you truly understand our justice system? By many of your posts, it seems very few”

But please. Do go on.

Dave September 16, 2011 at 9:08 am

The only reason life in prison is so-called “cheaper” is because of death penalty opponents filing every appeal known to God and dragging the damn sentence out for years. The guy who killed President McKinley back in the day was executed a month or so after being found guilty. Sounds good to me. This guy was found guilty of killing MacPhail and should be executed, today if possible. and with all due respect, there is cause for celebration when scum like him is removed from the Earth. He’ll never kill an innocent person again. Break out the noisemakers!

chamblee54 September 16, 2011 at 12:51 pm

I have written about Troy Davis five times at my blog. http://chamblee54.wordpress.com/2011/09/14/the-date-for-troy-davis/ (Links to four posts are in that post.) When I first heard about the case, I thought he was innocent. After going through some of the mountains of material available, I am not sure.
Mr. Davis was at the scene. The only question is whether he pulled the trigger.
There is a serious mistake in the Lawton editorial. Mr. Coles had an attorney with him when he went to the Police after the killing. The police bought his story totally. There was no investigation into Mr. Coles.
I also question Mr. Lawton’s claim about the “testimony” of Mark MacPhail.
While I am not convinced of the innocence of Mr. Davis, I am not convinced of his guilt either. The Savannah newspapers announced that Mr. Davis was the killer within days after the killing. Apparently, they believed Mr. Coles as well. The Savannah police were under pressure to find a killer, and were happy to pin the deed on Mr. Davis. The fact that Mr. Coles is might be getting a free ride does not seem to bother them.
chamblee54

ZazaPachulia September 16, 2011 at 2:59 pm

We Roman Catholics do not believe in the death penalty. Like abortion, it is un-Christian.

Contrary to Charlie’s commentary, the only thing that makes Mark MacPhail’s tragic demise the “Troy Davis Case” is the fact that people in this supposed Christian country still demand the worst kind of vengeance. If Georgia didn’t have the death penalty, none of us would know who Troy Davis is.

I know we Catholics are pretty rare this side of Savannah, but we’re not the only ones who disagree with capital punishment (at least on Sundays)

From Wikipedia:
The United Methodist Church, along with other Methodist churches, also condemns capital punishment, saying that it cannot accept retribution or social vengeance as a reason for taking human life. The Church also holds that the death penalty falls unfairly and unequally upon marginalized persons including the poor, the uneducated, ethnic and religious minorities, and persons with mental and emotional illnesses. The General Conference of the United Methodist Church calls for its bishops to uphold opposition to capital punishment and for governments to enact an immediate moratorium on carrying out the death penalty sentence.

KD_fiscal conservative September 16, 2011 at 3:23 pm

Zaza brings up a good point. While I have my own opinions about the death penalty, I never did understand why certain “Christians” are vehemently for it while telling everyone they are “pro-life.”

Calypso September 16, 2011 at 3:25 pm

Come now, KD, surely you’re just trolling with that comment.

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