Atty. Borges: ‘Davis case not death penalty sentence’


But, he supports the death penalty


By Chinta Strausberg


Chicago, IL – With the world still shocked over the execution of Troy Davis, former criminal defense attorney Ernesto D. Borges, Jr. weighed in saying while he too is opposed to Davis’ execution because it raises the key question all juries must abide by—guilty beyond reasonable doubt—he does supports the death penalty in cases of horrific crimes.

Borges, who currently heads the largest bankruptcy consumer firm in America, said his opposition to the execution of Davis, 42, is based on what he read and heard on the news including the recantations of seven of the nine eyewitnesses and especially since there may be someone who actually shot and killed Mark Macphail, a white officer.

“The recanting portion of it is very disturbing and knowing that he was a police officer (who was killed) and knowing there are instances where police officers ban together” including “coercing folks” into making false confessions, “or pressuring witnesses,” leaves room for plenty of doubt, said Borges who believes police tactics like that could have happened in Georgia 20-years ago when the shooting took place.

And that is what troubles Borges the most about the Davis case “the doubt and whether he committed the crime.” He has other concerns. “Another problem I have with it is if there were an argument and some person rushes up on you unexpectedly, it doesn’t show me any premeditation, planning or scheming or with malice. It may have been a simple reaction of someone rushing you. It doesn’t sound like a death penalty case to me,” said Borges.

But, he wanted to make his position crystal clear on capital punishment. “I am a proponent of the death penalty. I believe in the death penalty but I would prefer not just guilt beyond a reasonable doubt. I would like a higher standard in death penalty cases something akin to irrefutable doubt, irrefutable evidence, something where it is just absolutely certain like DNA matches, video tapes where there is no question of a person’s guilt,” Borges said.

And, there are other elements Borges would want to make certain like premeditation or whether it was a willful act. “That is what I would require for the death penalty. I believe in the death penalty,” he stated giving a few examples of his litmus test for this form of punishment.

“When I see someone taking a 3 or 4 year-old girl and raping her, sodomizing her, torturing or dissecting a person, I don’t believe they should live. I don’t believe that taxpayers should pay for their food and housing until their death which could be 60-years from now,” attorney Borges said.

“I believe that they have taken themselves out of the Homo sapiens species. They are no longer part of our humanity. They therefore don’t need to live here.

“I don’t get religion mixed with this, but I think my ethics and my morals are such that I see this on television and read about people who commit these heinous crimes where there is irrefutable evidence that they committed it, then I see no need to keep that person locked away for approximately 50, 60 or 70-years. That to me is inhumane and is cruel and unusual punishment to lock someone in a cell where oft times he or she doesn’t have communication with a human being.

“They are fed electronically or remotely. They have no contact. When released, they will be social misfits, a danger to the rest of our community because they have been isolated and the effects isolation can have with the disconnect to the rest of mankind. I see no need in that,” he pointed out.

“Some people would just assume live out their lives in isolationism but some I would think would want to end their lives rather than to live in a cage without hope of ever being released.”

He said crimes that are premeditated, heinous or of a horrific in nature, willful should result in a death penalty. However, in the Troy Davis case, Borges said, “this was not a death penalty case.  In order to send someone to a death penalty, I would need evidence above and beyond the evidence necessary, which is the standard that is set in today’s courts. If I were the lawmaker, that is what I would require.”

When asked if it bothered him that Georgia Chatham County District Attorney Larry Chisolm is black and could have vacated the death warrant for Davis or that the case was given to U.S. Justice Clarence Thomas, also black, Borges said Chisolm had no legal power to stop the execution and that Thomas’ receiving the case “was just by coincidence” because the state of Georgia fell under his judicial jurisdiction.

Borges said it would have taken five justices to stop the execution and that Justice Thomas alone couldn’t have gotten a stay, but he emphasized, “There is room for doubt” in Davis: and in America when there is doubt there should be an acquittal but certainly not the death penalty given the recantations and the fact that no gun was ever found.

Borges doesn’t believe this should have been a death penalty case but then he raised the issue careers and high stakes politics.

“You have to understand the politics of this,” Borges said referring to Chisolm. “He runs for office….” And, there is the discrimination in the case that also troubles Borges. “There is an element of racism involved,” he said.

In retrospect, Borges said perhaps the parole board should have held an open rather than close door meeting when they considered a request for a clemency.

Asked if in the future Troy Davis were found to be innocent should those responsible for convicting him be held accountable, Borges said, “Unfortunately, they have immunity. Judges, prosecutors, police officers have immunity. You can’t come after a prosecutor unless you find some kind of criminal act like hiding evidence.

“If a prosecutor prosecutes somebody, you can’t go after a jury. There’s immunity from prosecution criminally and civil. If a prosecutor makes a mistake, the judge makes the mistake, you can sue the state, but you can’t go after those individuals….”

Besides adding another star to their political careers, Borges said prosecutors are very selective about who they prosecute.

Borges’ concerns about the death penalty mirrors those raised in the report entitled “Struck by Lightening” See:

According to the report, four states have since abolished the death penalty within the last four-years while nationally executions and death sentences were cut by 50 percent since 2000. “A review of state death penalty practices exposes a system in which an unpredictable few cases result in executions from among thousands of eligible cases,” the report stated.

“Race, geography and the size of a county’s budget play a major role in who receives the ultimate punishment. Many cases thought to embody the worst crimes and defendants are overturned on appeal and then assessed very differently the second time around at retrial.

“Even these reversals depend significantly on the quality of the lawyers assigned and on who appointed the appellate judges reviewing the cases. In such a haphazard process, the rationales of deterrence and retribution make little sense.

“In 1976, the newly reformed death penalty was allowed to resume. However, it has proved unworkable in practice. Keeping it in place, or attempting still more reform, would be enormously expensive, with little chance of improvement.

“The constitution requires fairness not just in lofty words, but also in daily practice. On that score, the death penalty has missed the mark,” the report concluded. See page 3 of this report.

Listen to other voices from this report on the death penalty by prominent judges and including Senator Dick Durbin (D-IL)

The System of Selection

“The system is too fraught with variables to survive. Whether or not one receives the death penalty depends upon the discretion of the prosecutor who initiates the proceeding, the competence of counsel who represents the defendant, the race of the victim, the race of the defendant, the make-up of the jury, the attitude of the judge, and the attitude and make-up of the appellate courts that review the verdict.”

-Judge H. Lee Sarokin, U.S. Court of Appeals, Third Circuit (ret.)

“There are many people who commit heinous crimes, and I’d be the first to stand up with emotion and say they should lose their lives. But when I look at the unfairness of it, the fact that the poor and people of color are most often the victims when it comes to the death penalty, and how many cases we’ve gotten wrong now that we have DNA evidence to back us up, I mean, it just tells me life imprisonment is penalty enough.”

-Sen. Dick Durbin (IL)24

“I have been a judge on this Court for more than twenty-five years . . . After all these years, however, only one conclusion is possible: the death penalty in this country is arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair.”

-Judge Boyce Martin, U.S. Court of Appeals, Sixth Circuit

“When Gary Ridgway, the worst mass murderer in this state’s history, escapes the death penalty, serious flaws become apparent. The Ridgway case does not ‘stand alone,’ as characterized by the majority, but instead is symptomatic of a system where all mass murderers have, to date, escaped the death penalty . . .. The death penalty is like lightning, randomly striking some defendants and not others.”

-Justice Charles Johnson, Washington Supreme Court33

“There’s indifference to excluding people on the basis of race, and prosecutors are doing it with impunity. Unless you’re in the courtroom, unless you’re a lawyer working on these issues, you’re not going to know whether your local prosecutor consistently bars people of color.”

-Bryan Stevenson, Equal Justice Initiative

“A recent study of the Equal Justice Initiative (EJI), a human rights and legal services organization in Alabama, found the practice of excluding blacks and other racial minorities from juries remains widespread and largely unchecked, especially in the South. “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy” revealed that Alabama courts have found racially discriminatory jury selection in 25 death penalty cases since 1987, and in some counties 75% of black jury pool members in capital cases were excluded.89

“And, since 1976 when the death penalty was resurrected, the report stated, “Thirty-five years later a strong body of empirical evidence confirms that race, geography, money, politics, and other arbitrary factors exert a powerful influence on determining who is sentenced to death. This is the conclusion not only of experts, but increasingly that of the general public as well. Unfairness ranks near the top of the American public’s concerns about the death penalty”

So, why are we still supporting state-sponsored murders by injection or like recently in Utah death by a firing squad?

Chinta Strausberg is a Journalist of more than 33-years, a former political reporter and a current PCC Network talk show host.