There’s little to say that hasn’t or won’t be said about the murder of Troy Anthony Davis last night in Jackson, GA. I watched the live coverage on Democracy Now!, the only news organization at the scene of the execution. Amy Goodman and crew extended their broadcast into a sixth hour, as the execution scheduled for around 7:00 EST was inexplicably postponed, leaving family and friends and a few hundred other activists who turned out to support Troy simultaneously hopeful and in the dark about what was going on. I watched and listened as Goodman held the mic for his sister, his nephew, for Big Boi and Al Sharpton, Ben Jealous and other NAACP representatives, for local clergy and activists from near and far. It was heart-wrenching: Amy was speaking to Ben Jealous and Larry Cox of Amnesty International. Ben was saying “Let’s hold out hope until this last minute; always hold out hope…” as muffled cheers began to spread. The crowd erupted as the word spread that a stay had been granted. Ben bows his head and pauses amidst the cheers, resuming a moment later: “I was saying we came prepared for a miracle…” Larry Cox responds by mumbling a comment about someone — himself? all of us? — “needing to get religious.” The young chairman of the NAACP board introduces herself, beaming: “We just heard that he’s been granted a stay. And we serve a God who is able! and we’re so grateful right now… We thank God for it. We believe in America, we believe in the justice system….”
I had missed that particular scene the night before. Re-watching it on DN!’s morning-after broadcast, already aware of the tragic undoing of this miracle — the encroaching silence that would fall upon the crowd minutes later — I burst into tears uncontrollably upon listening to the chairwoman’s outburst of praise. The cruel discrepancy was that Justice Clarence Thomas had, in fact, merely taken the issue before the Supreme Court, who would decide whether or not a brief “reprieve” — not quite as significant as another “stay” (this one would’ve been the fourth stay for Troy) — would be granted to halt the execution for up to a week. A couple of hours later, blue lights began to appear and the “storm-trooper” police huddled closer to the crowd. You could sense what was the case, as a more well-founded word began to spread through the crowd, the cell phones, and over the air. The family left the scene; Ben spoke softly amidst the crowd, gathered behind the yellow rope that Amy and crew could not pass. The killing had begun.
I only want to raise one overarching question about the moral and theological rationale of this event. How should we understand the tension — if any indeed exists — between the the two most widespread slogans used by supporters of Davis: (1) “I am Troy Davis.”, and (2) “Too Much Doubt!”? Both were used by Troy’s supporters. The somewhat cold (perhaps simply hardened, jaded) tone of Rev. Al Sharpton, when speaking with DN!, came through in a litany of variations on the second mantra. The good Reverend was mercifully, dutifully on the scene; but his dominant tone and language was Legalese. He spoke insightfully about racism as a systemic problem, how all the sicknesses of a society are manifest in its justice system; yet he sounded like a politician appealing to politicians. With integrity, yes; in the name of human decency and fairness, no doubt. And thank God for that. But Sharpton’s “Too Much Doubt” speech was an appeal to the authorities on their own terms; it was a critique of the failings of the system by its own standards. As such, it was totally warranted and necessary. There is no doubt whatsoever that there was in fact far, far “too much doubt” for any American legal body to conscientiously carry out Troy’s 22-year old death-sentence, even by the standards of its own legal conventions — that abstract, contingent, necessarily-in-flux body of minimal conditions, both circumstantial and “hard” evidence, which the Dept. of Justice trusts to ensure a court system of due process, fair trial and just sentencing. .
In this case, however, there was no “hard” evidence. This is obviously one of the most basic reasons to question, if not outright reject, the death penalty itself: a basic admission that all human beings– and thus all systems and procedures over which they preside — are fragile and limited, inevitably reflecting our hidden and not-so-hidden prejudices and interests and desires and loves. Forensic evidence and DNA testing have done much to improve and, depending on the case, de/legitimate circumstantial human testimony. But bare facts, evidence itself, does not speak — it invites perception and narration; it opens up and gives itself over to human knowledge and attestation. And when the evidence fails — when it’s inconclusive, or too dense to “objectively” perceive and narrate; that is, when we cannot deem it satisfactory; when the cool observation of brute facts alone ceases, for whatever reason, to ease our conscience — then, everything hangs on witness. Lives are then spared or taken, not because of any neutral system or procedure, but precisely because one or another display of fragile human witness, some or another form of humanly attested love and investment and hope and rage, wins the day in court. Yet if this is true, if witness rather than evidence really carries the day, even in our bio-technological age, it is not partially so: the complex history of human witness — the manifold witness of humanity’s particular loves, hopes and fears — simply is the complex history of human justice. Particular, historically contingent constellations of human witness — the history of the particular gods our loves, hopes and fears attest– constitute the spiritual engine driving any given system of justice.
Troy Davis’s case exemplifies how the most serious failings of our modern systems of criminal justice, particularly the American Dept. of Justice, consist in the routine dehumanization of those involved in criminal cases. Alleged or suspected criminals and victims alike are dehumanized as our legal authorities and representatives (judge and jury alike) profess an unshakeable faith in the “evidential” basis of our contrived procedures and systems. Conversely, legal dehumanization occurs as the actual centrality of human witness is denied, relativized or altogether ignored. This denial allows us to claim for ourselves a venerable ideal of neutrality and ever-increasing objectivity in our judgments; it simultaneously requires the ideological refusal of any existing ideological contamination of our system. In the same way that for the British government to take an honest look at the material conditions of the London riots would have exposed elements of criminality in the UK’s governing class, for the Georgia parole board to finally “give in” and reverse its 1989 decision in Troy’s case would amount to an admission of their system’s flawed inhumanity.Thus Law prof. Eric Freedman says that what’s really behind a court’s unwillingness to reverse its decision in a case like this — where the original (circumstantial) evidence; that is, 7 of the 9 “eyewitnesses” who testified against Davis, completely falls apart over time — is not the scientific solidity of the alleged basis of the ruling (“evidence”), but the court’s and the family of the victim’s “desire for finality.” Once a ruling has been passed, despite what comes to light afterwards, it is not the judge but the judged that bear the burden of proof. The crucial thing to see is that this is the case not because the original decision was actually based on incontrovertible evidence — if that were it, the courts would have no fear of contradiction — but because the system requires faith in the finality of the witness it gave. Douglas Berman, another law prof., said it clearly: “‘Many of the people asserting confidence in [Davis’s] guilt are much more expressing confidence in our legal system and our jury system…That’s why the shouting gets so loud — because what is nominally a factual issue of his guilt is really a dispute over how that issue gets resolved,’ and by whom.”
This is true both for legal bodies that cannot admit past or present bias, as well as for the grieving families of victims, whose grief only admits the resolute promise of personal satisfaction, rather than the much messier truth and dim hope of justice for all. No one should make light of the grief of the MacPhail family, but sadly, their mourning bore witness not simply to the fragility of human love and inexplicably violent loss; their pain was also expressed according to the logic of the justice system through which it sought resolution: their grief sought release by finding an incontrovertible “criminal”, an inhumane Victimizer, and so it required faith in the incontrovertibility and finality of the justice system’s decision-making process. (Those familiar with the literature will recognize Girard’s scapegoat hypothesis at work here.) Neither the MacPhail family nor the courts to which they entrusted the resolution of their grief could admit the fragility and broken humanity of the witness against Troy Davis. All that was needed was enough “evidence” — i.e., enough convincing human testimony — to allow the Judge(s) psychic resolution, enough to declare guilt and innocence and so to deliver to the “Victims” (defined singly as the MacPhails, the bio-logical family of the killed) an opposing “Victimizer.” My point here is that in the current system, in any system where the death penalty is practiced and thus rationalized, evidence (which we must believe to be incontrovertible) and witness (which is by necessity provisional) must be diametrically opposed. Similarly, for the MacPhails, Troy Davis could not be both Victim and Victimizer. The very form of their faith, the justice in which their loss found resolution, would not allow the fragility of the witnesses against Troy-Davis-as-Victimizer to be exposed. The post-execution NYT piece reads:
“…But for the family of the slain officer and others who believed that two decades’ worth of legal appeals and Supreme Court intervention was more than enough to ensure justice, it was not an issue of race but of law…. Inside the prison, Officer MacPhail’s widow, Joan MacPhail-Harris, said calling Mr. Davis a victim was ludicrous…. “We have lived this for 22 years,” she said on Monday. “We are victims.”… She added: “We have laws in this land so that there is not chaos. We are not killing Troy because we want to.”
So much for “too much doubt.” The point is, even when that mantra is necessary and useful — that is, when we are tactically appealing to our given legal representatives, on their own terms — a system of justice where the death penalty is even an option, our given systems of contrived neutrality and the satisfication brought through the “finality” of our own witness, cannot admit that legitimate doubt exists, because to do so would expose the vulnerability of our faith in the system itself. To make “too much doubt” the basis of one’s critique of our systems of justice, even though it casts its critique in the terms within which the system claims to operate (“reasonable doubt” and incontrovertible “evidence”), only accomplishes an internal critical gesture. At its best, as with Rev. Sharpton on Wednesday, it dutifully exposes the hidden hypocrisy attending our past and present attempts to deny the fragile humanity of our quest for justice. Those who spoke out for Troy Davis simply because there was “too much doubt” attested a truth; they testified that to carry out the sentence lawfully decreed against him would be to go on with “too much faith” in ourselves and our current legal framework. Even many who are “pro-death-penalty”, or simply unopposed to it in cases where the evidence is “overwhelming,” could speak out for the dignity of Troy’s life on the basis of this critical affirmation of the given system.
To conclude, I simply want to suggest that the first mantra — “I am Troy Davis” — embodies a much deeper critique of the legal powers and authorities operative in GA last night. It is deeper because it not only exposes the limits of the given system; it strikes at its heart by attesting a different form of faith, by calling on a different kind of justice than that which the system of incontrovertible evidence and which any form of human witness “finalized” by the death penalty can give. Rather than criticizing that system for its failure to be itself — rather than simply (but necessarily) denouncing the rulers for their inability to produce a pure Victim, for their lethal fantasy that that they decree from a place beyond the sphere of victimization; rather than all that, for the masses who read Troy’s letter to his supporters to take up his own concluding declaration — I AM TROY DAVIS, and I AM FREE! — and to make his affirmation of freedom their own, is to attest that a justice capable of including, indeed requiring, the fragility of human witness is not only possible, but already exists. To his dying breath — with which he expressed sorrow for the MacPhail’s’ loss, reiterated his innocence, encouraged the MacPhails and his supporters to keep searching for truth and justice, and told his executioners “May God have mercy on your souls” — Troy Davis attested a freedom that exceeded the godless self-justifications that possessed that GA parole board; that victims’ family; that Supreme Court meeting. Those first black teenagers who stood in front of their school, declaring his situation their situation, attested a justice that knows such freedom; as did his sister Martina, who connected Troy’s plight to all on death row, and to the widespread atrocities of our prison system.