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NEAL CONAN, host:

This is Talk of The Nation, I'm Neal Conan in Washington. Last week the Supreme Court cleared the way for the execution of Troy Davis a death row inmate from Georgia convicted in 1991 of the murder of off duty police officer Mark MacPhail in Savana. Davis has always maintained he is not guilty and spoke last year from prison.

Mr. TROY DAVIS (Convict on Death Row): I want my innocence proved one way or another. That's (unintelligible) foremost. I don't want to die especially for a crime I didn't commit. I want to make sure that the MacPhail family has justice, but accurate justice.

CONAN: Seven of nine key prosecution witnesses recanted their original testimony and swear they were pressured to testify by police. Pope Benedict and former President Jimmy Carter are among many who asked for clemency and for Troy Davis' supporters, the case raises basic issues of fairness. Officer MacPhail's family and prosecutors remained convinced of Davis' guilt, every court that has heard his appeal, turned him down.

Later in the program we want to hear from those of you who've traveled oversees and had been asked about this year's presidential campaign, you can send us email now the address is talk@npr.org, but first the Troy Davis case and we're not talking about the pros and cons of the death penalty per se today, we're talking about the process. Is this fair? Our phone number 800-989-8255, email talk@npr.org. You can also join the conversation on our blog at npr.org/blogofthenation. We begin with Jeffrey Rosen, law professor at the George Washington University and legal affairs editor of the New Republic with us here in Studio 3A. Always nice to have you in the program, Jeffrey.

Mr. JEFFREY ROSEN (Professor, George Washington University): Good to be back.

CONAN: It was a dramatic moment - the Supreme Court granted Troy Davis a stay of execution well I think just a couple of hours before he was set to be killed by the state. Do we know why they decided to hear the case at least temporarily?

Mr. ROSEN: The decision to grant the stay wasn't that unusual there was at least enough of a legal issue to force the court to talk about it, but the fact that they then lifted the stay without comment and most important of all with no dissenting opinions suggests that they decided the case wasn't legally close after all. It turns out that the standard for granting new trials even in situations like this is extraordinarily high. The Supreme Court said in 1995 that you have to establish by a fair probability that the trier of fact would have entertained a reasonable doubt about guilt. So, you basically have to be more likely innocent than not, and I think that they concluded given the fact that so many stayed in Federal courts have reviewed this recantation evidence, 29 courts by some evidence, at least two eye witnesses did not recant. There was some other physical evidence supposedly tying him to that crime for all these reasons. There wasn't a fair probability that he was actually innocent and they decided to let it go ahead.

CONAN: How much review might they have given it, do we know?

Mr. ROSEN: Well, they could have ordered a new trial which is indeed what the dissenting justices on the Georgia Supreme Court argued. The dissenting justices said basically the standard is too high. The question isn't - wasn't likely that the evidence was completely fabricated, that's too high a standard, but that basically if there's some possibility that perhaps the guy is innocent in light of evidence that hasn't been adequately reviewed in court, there should be a new trial. They basically said at least test these witnesses, put them on the stand and let the jury decide.

CONAN: Would this court have been just judging the fairness of the trial or would they've been looking at this is a constitutional issue?

Mr. ROSEN: As a constitutional issue and this is very important to the death penalty jurisprudence which seems so counterintuitive. How was it possible that if someone might be innocent, he could be executed? The court has said again and again their job as a constitutional court isn't to review the facts, basically they are just supposed to review the law because if they review the facts then in every death penalty case, someone would come up at the last minute and say here's some new evidence. So, that's why they and their case law and also this is important reading the will of Congress, remember it was in the 1990s that Congress under President Clinton's direction passed a death penalty act that really cut back on the discretion of the Supreme Court and other courts to hear newly discovered evidence in lots of ways. For all these reasons that's why the court sets the bar so high and says there has to be a fair probability of innocence, not just some possibility that the fairness of the trial is in question.

CONAN: This trial was held in 1991, as you suggest this has not exactly been rushed to the execution chamber.

Mr. ROSEN: It hasn't. It's been reviewed by 29 courts by some measure at both the state and federal level. The Supreme Court has already turned down opportunity to review the case a couple of years earlier and the supporters of the execution say much of this newly discovered evidence - the newest affidavits were just put together weeks before the clock was supposed to tick on the final execution suggesting that these people should have come forward earlier if they really had serious doubts.

CONAN: And is there any avenue left for appeal?

Mr. ROSEN: Not to my knowledge. The governor can of course always issue a pardon, but...

CONAN: Or commute the sentence...

Mr. ROSEN: Commute the sentence, forgive me, but the Supreme Court I think is not likely to intervene again unless there's some new legal theory or some dramatic new evidence, but that doesn't seem very likely in this case.

CONAN: And is this unusual that these kinds of last minute maneuvering in death penalty cases?

Mr. ROSEN: Not at all, of course, good lawyers will try to bring whatever evidence they can, but the question of can an innocent man be executed? That obviously has tremendous public resonance, and the remarkable thing is the Supreme Court has not squarely said no. It suggested as much - it's assumed that executing an innocent person will violate the eight amendment ban on cruel and unusual punishment. Several justices have said they believe that, but because the court has not squarely held that, a lot of people are thinking well, this really is a situation where the court should make itself clear.

CONAN: Joining us now is Robert Blecker, he's a law professor at New York Law School and he joins us from our bureau in New York City. Nice to have you on the program today.

Mr. ROBERT BLECKER (Professor, New York Law School): Thank you.

CONAN: And I know that you are a believer in the death penalty, but you have reservations about this particular case.

Mr. BLECKER: Well, of course I'm a believer in the death penalty only for those who deserve it.

CONAN: Of course, I'm not arguing that you're not.

Mr. BLECKER: I have reservations, but I'd like to just clarify something that Professor Rosen just said. He said in effect what the court is demanding is that we are convinced is that the defendant must show it more likely that he's innocent than not. I would take issue with that. What the court is really saying is that it has to be shown more likely than not, that no reasonable juror would have found him guilty beyond a reasonable doubt. Now I now this is a lot of words, and there's a lot of complexity involved, but there is a big difference between what Professor Rosen just said and what I reiterated as the court standard.

Mr. ROSEN: So forgive me, I'd initially read it correctly, a fair probability that the trier effect would have entertained a reasonable doubt of his guilt. That's from a case in 1995 and see that's what I meant to say.

Mr. BLECKER: Correct. Would have entertained a reasonable doubt, so let's be clear about what we're talking about as we talk about fairness. Has the defendant convinced us, the convicted defendant convinced us that it is more likely than not, that a reasonable juror would have a reasonable doubt not more likely than not that he's innocent, but more likely than not that a reasonable juror would have a reasonable doubt. That's a much lower threshold than requiring him to prove it more likely than not that he's innocent, a much lower threshold.

CONAN: And do you think the Troy Davis case meets that threshold?

Mr. BLECKER: Given all the evidence that has come to light and discounting it for its implausibility and for the fact that when witnesses recant they often lie, I think that it doesn't meet it in terms of a new trial, but I have problems as you identified. I have problems with the case, I have personal problems with the case although the legal standards were followed and Professor Rosen is quite right and they are quite complex. My problem is that I morally require something higher than proof beyond a reasonable doubt before we put someone to death. I would require proof to a moral certainty that he deserves it and no residual doubt that he did it.

No lingering doubt and if you take all the evidence and I'm not an expert in this case, I have not - of course I have not interviewed the witnesses, the trial transcript is voluminous, it's been through court after court after court as has been said. But my sense of it and so far as I've reviewed it and if you take into account all the witnesses changed statements is that if I were a juror, I would have a lingering doubt as to his guilt. I would probably convict because I would be convinced beyond a reasonable doubt but I would not sentence him to die because I would have a lingering doubt as to whether he did it. And thus in my view, that's my problem with it. I couldn't execute him as a juror.

CONAN: But you're talking about a standard which as far as I know does not really exist for the sentencing phase of this case.

Mr. BLECKER: That's correct although the descent - Professor Rosen correctly points to the key opinion which was the Georgia Supreme Court's opinion in which they divided four-three over whether he should get a new trial. And the majority as Professor Rosen said and I think rightly, the majority came up with what I think is a ridiculous standard. They said in essence, in order to set aside a verdict there can be quote, no doubt of any kind that the state's witness testimony in every material part is purest fabrication.

Now that's a standard that is almost impossible to meet. And the dissent disagree with it and in my view rightly so and then right at the end of their opinion, what they said is that the collective effect of all the new testimony if they were a hearing and if the trial court found it to be credible might show either that there was a - or that a new jury would find a reasonable doubt or is guilt. And then the last part of the sentence is keep - or at least sufficient residual doubt to decline to impose the death penalty. So the three dissenting justices of the Georgia Supreme Court in effect signaled that for them, the question of residual doubt was significant. And reading between the lines, I would say that for them they think that a reasonable juror as I think, that a reasonable juror given all this evidence would probably have a residual doubt about his guilt.

CONAN: So, let me ask you sort of a hypothetical question and that is if in controversial cases, like this one we proceed to execution, does it undermine support for the death penalty?

Mr. BLECKER: Well, it will undermine support for the death penalty once it's conclusively shown that we've in fact executed an innocent person in the modern era. I believe we have. I have no idea who it is, it's never been demonstrated that we have, it seems highly probable that we have. Now, Troy Davis is - if he's to be executed and he probably will be next Monday, Professor Rosen points out that the governor can't pardon but the governor has more or less given that power to the parole board.

CONAN: Which has reviewed the case already.

Mr. BLECKER: In detail and did consider the testimony and did hear from those witnesses that the defense attorneys wanted to present to them and decided not to issue clemency. So, it's unlikely that the governor will step in since the parole board has not. Now, he asked me will it undermine confidence. If it's later shown that Troy Davis was factually innocent, of course it will, if it's later shown that anybody who was executed, well, it will but to say that it undermines confidence is not to say - is not the same as to say that it gives us sufficient reason to abolish the death penalty.

CONAN: Jeffrey, I wanted to hear you on this.

Professor ROSEN: Well, now of course it's not obvious that the Roberts' Court would even take the rather rigorous feud that we've been discussing, this is - these are old cases and conservative justices have said that even that fair probability standard that we talked about is too generous but basically it undermines confidence that the death penalty of these things are delayed and no reasonable juror should be able to vote for a death in order to get a new trial. So this is a contested issue, and certainly these cases are very, very contentious.

CONAN: We're talking about the case of Troy Davis. He's exhausted his appeals on the way to execution in Georgia. The prosecutor in the case had been barred from talking about any details in public as long as the case was on appeal, now he's free to speak. He'll join us next. Stay with us. I'm Neal Conan, it's the Talk of the Nation from NPR News.

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CONAN: This is Talk of the Nation, I'm Neal Conan in Washington. We're discussing the case of Troy Davis, 17 years ago sentenced to death for the murder of an off-duty police officer in Georgia. He has since exhausted his appeals but gathered the support of many who argued the process was not fair. Now, the Supreme Court rejected Davis' final appeal. The district attorney overseeing the case is able to discuss details publicly, he'll join us in just a moment.

Right now, our guests are Jeffrey Rosen, law professor at the George Washington University, Legal affairs editor of The New Republic also Robert Blecker, a law professor at New York Law School. We want to hear from you again. Not a discussion about the death penalty per se, another conversation for another time. Today, we're focused on the process in this case, is this fair? 800-989-8255, email talk@npr.org, you can also join the conversation on our blog at npr.org/blogofthenation. Let's begin with Jim. And Jim is with us from Birch Run in Michigan.

JIM (Caller): Yeah. This is pretty good, it is the process and that's the problem, we go through all of these processes as in all of this litigation over and back and forth, we haven't affected nothing in this system. Why do we do this? Why don't we just put the guys in prison for the rest of their life and I am personally not against the death penalty. But where are we going? We're doing nothing, we're accomplishing nothing but wasted money and time.

CONAN: And enriching lawyers. Robert Blecker?

Mr. BLECKER: Yes, were it that easy. The public view of what it's like to spend a life in prison is different from the actual reality as someone who has spent thousands of hours in maximum security prisons and on death rows in six states. I can tell you that in some ways, I was appalled by the quality of life day to day when I watched lifers, convicted murderers playing softball with line base pads and umpires when I watched them playing pool on reconditioned pool tables, when I watched them live a life that some people would only envy, the retributive part of me that the man's justice is dissatisfied.

You know, you will never see the light of day, well if they'll never see the light of the day, why does the commissary sell suntan lotion with an SPF factor of 30? So to say, simply abolish the death penalty does not adequately raise the question of justice which is what is the alternative? It's not just that one spends one's life, it's how one spends one's life. And it's nobody's job to punish. If you look at the Department of Corrections missions statements, not one in the United States ever mentions the word punishment. And for a host of reasons we can go into, the officers ranking and line officers do not see it as any part of their job to punish. So, the alternative to the death penalty is justice involved in the question of justice as the death penalty itself. What is the quality of life for lifers?

CONAN: Jeffrey?

Professor ROSEN: I think the caller's question gets back to this issue we were just discussing of whether the public support for the legitimacy of the death penalty is a self-undermined by these extensive procedures and I agree with those who say, it's fine to have it and to have this high standards for reexamining verdicts but that means at the very least, you have to have opportunities to present evidence of actual innocence and that's why the Supreme Court needs to say clearly that it is cruel and unusual to execute an innocent person and that's why groups like the innocent project insist the DNA evidence of innocence in death penalty cases should be treated differently than another cases. The Supreme Court has sort of contentiously dismissed the so called death as different idea. But of course, it's different and we really do need to ensure that innocent people are not executed.

Mr. BLECKER: By the way, I agree with Professor Rosen on that. I think the Supreme Court should announce that the eight amendment absolutely prohibits as cruel and unusual punishment, the execution of somebody who is factually innocent.

CONAN: Jim, thanks very much for the phone call.

JIM: Thank you, sir.

CONAN: Bye-bye. And we'd like to thank Robert Blecker for his time today, appreciate it.

Mr. BLECKER: Thank you.

CONAN: Robert Blecker, law professor at New York Law School, he was the subject of the documentary Robert Blecker Wants Me Dead in which he chronicles his unusual relationship with Daryl Holton, recently executed by the state of Tennesse, and he joined us from bureau in New York City. And let's welcome now Spencer Lawton Jr., the Chatham County district attorney, with us by phone from his office in Savannah, Georgia. Nice to have you on the program today, sir

Mr. SPENCER LAWTON JR. (District Attorney, Chatham County, Georgia): Thank you very much.

CONAN: And you wrote in the Atlanta Journal-Constitution this morning that many people are concerned that an innocent man is about to be put to death, I am not likewise concerned however. Now, tell us why.

Mr. LAWTON JR.: Well, I take as my point of departure, frankly first the assumption that the trial was fair as I believe it to have been. And then I turned my attention to the post conviction activities both in court and out. My particular attention is riveted by what has been an international firestorm of public relations campaigning. On the part of people who generally speaking, I think it's fair to say are opposed to the death penalty regardless of the guilt or innocence of the accused. And I think you referred earlier to the question whether - I think the way you put it was whether if an innocent person were put to death, it would have erode the public's confidence and death penalty juror's prudence. I hope I have that correct.

CONAN: Yeah.

Mr. LAWTON JR.: The - I certainly think it would. And indeed, I think it should. The - but if I may interject just this sort of slightly different view, I have so much enjoyed by the way the discussion that's preceded me, I feel a little in over my head, that's been very fascinating.

CONAN: I suspect not.

Mr. LAWTON JR.: The - but I feel that we're not here debating or at least from my perspective as prosecutor in the case, debating how many angels can dance on the head of residual doubt. I think that a great deal of damage has already been done to the public confidence in the criminal justice system though I have only anecdotal evidence toward it because of this public relations campaign has gone on during a time when I representing the state have been unable to speak to the merits of the case. And so, many people with only that information provided to them by what I might characterize I hope fairly as sometimes zealous opponent of the death penalty.

For what it's worth, I'm not criticizing their opposition to the death penalty, I am myself confessedly at the very least ambivalent about it. But my point here is that we have- as a civilized society, we substituted the rule of law for mob rule. I think any of us would be outraged if while a court was trying to adjudicate guilt or innocence. A mob gathered out said, the court house chanting and demanding vengeance, we would be utterly appalled if the same - well, it would have to be a different mob, were to gather outside the courthouse chanting and demanding innocence, I think we would similarly be appalled and the reason for that obviously is that we expect the court to go forward with it to adjudication in accordance with the rule of law.

CONAN: And you suggest that in a way, that's what's been happening in this case. Let me just ask you…

Mr. LAWTON JR.: I do suggest exactly that. And if - I don't mean to interrupt but if there are two points particularly on which I don't think so - one is, and this is what I think is the nub of the issue, when you strip the scholarship out of it which is I say I have so much enjoyed, the issue of the recantations, I think we're dealing with a general perception in an enormous swath of the public is interested in this, that it's impossible for this many people to have recanted and something not be done about it.

CONAN: Yes.

Mr. LAWTON JR.: You see what I'm saying?

CONAN: Yeah. Seven out of nine of the key witnesses, yeah.

Mr. LAWTON JR.: Well, my observation on that, a couple of things. I'll start with the idea that seven out of nine is into it is really persuasive, to me it's not. To me, an 80 percent recantation rate, some 12 to 17 years after the conviction is suggestive of some sort of frankly of manipulation.

CONAN: And this being done then by those same opponents of the death penalty, you mentioned earlier?

Mr. LAWTON JR.: I really can't say by whom but it's just - it's a - I think I've said in the feature referred to earlier, it is at least an uncanny coincidence.

CONAN: That piece. By the way, you can find a link to it on our website at npr.org/blogofthenation. But, please go ahead if you wouldn't spend too long.

Mr. LAWTON JR.: Well, thank you. The - referring back to matter of the rule of law, we've got rules which govern the admissibility and probity of newly discovered evidence in obtaining a new trial. In Georgia, that standard is governed by a case called Timberlake which sets out six conditions for - basically to establish the veracity and genuineness of the so-called new evidence. Not one of the affidavits on which the defense is building its main case here or that the - his advocates generally emphasized not one of them meets those conditions, not one. One of the conditions for an example, is that the newly discovered evidence can't be found now through a want of diligence earlier. In other words, well, you're taking the point.

CONAN: Yeah.

Mr. LAWTON JR: But in this case, again, the affidavits of the recantation at issue were finally obtained over the course of years. Finally, they were mostly gathered together at about 12 years after the conviction. The most simple and direct method that the criminal justice system provides for the introduction, the advancement of new evidence in order to get a new trial is simply motion for a new trial, nothing surprising about that. Well, instead of filing a motion for a new trial in the trial court, which is where you would do it, they sat on these affidavits for about five years and didn't offer them. I think this was previously mentioned before. Previously mentioned, didn't offer them until eight days before the first scheduled execution last summer.

CONAN: Let me interrupt, I know you got more to say but I wanted to bring some listeners...

Mr. LAWTON: Yeah, sure.

CONAN: Into the conversation. Let's get Peter on the line. Peter is calling us from Wenonah in New Jersey.

PETER (Caller): Hi, thank you for accepting my call.

CONAN: Go ahead please.

PETER: I'm a forensic pathologist, and I have participated from time to time as a volunteer in the Innocence Project. I would like to say very simply the following. We have seen in over a hundred cases, many of them death penalty cases in which juries have heard the system was broken. Objective scientific evidence has shown that these people were innocent. Until we resolve that problem, those cases in which DNA is not available, we must give the same critique to those juries, as we have demonstrated with DNA evidence. And until that is fixed, I do not believe that we should convict anyone to the death penalty.

Mr. LAWTON JR: I don't agree.

PETER: To the death penalty.

Mr. LAWTON JR: No, I'm sorry.

PETER: Unless there is absolutely no doubt, I like the term that was used by your prior representatives here, I forgot the exact terms and moral.

CONAN: Lingering doubt, yeah, residual doubt. But Spencer Lawton, briefly, you disagree.

Mr. LAWTON JR: With respect, I don't agree. The fact that scientific forensic evidence, DNA for an example, can and sometimes does establish actual innocence, that's not a reason to believe that we ought to treat contradictions in witness testimony as having the same certainty. The gentleman seems to suggest that we ought to treat any question about any evidence as we would treat affirmative evidence, DNA evidence of innocence and that is just to my way of thinking that.

PETER: May I respond to that?

CONAN: In just a moment, if you would. We're talking about the case of the death penalty of the execution now set for next week in Georgia. You're listening to talk of the nation from NPR News. And Peter briefly, if you would.

PETER: Yes, I am not referring to witness statements. I'm referring to the process. And I believe that if we're relying on juries, we must until we improve the system, we can provide life imprisonment. I do not believe that we should execute anyone if we can show where there is scientific evidence, how often juries have erred.

Mr. LAWTON JR: I see, perhaps I misunderstood that.

CONAN: I just want to rig Jeffrey on this.

Mr. ROSEN: Well it's a very good point. I have to say, even at this point, in this fascinating conversation. I'm not sure - not sure whether I have a fair probability that a jury would have been - entertain reasonable doubt, if they've known about this recantations. I guess, I'm still unsure about whether the two witness testimonies by themselves were enough to convict. Whether there actually was physical evidence presented to the jurors, I know, after the fact - it was claimed that there some physical evidence. But I do agree with the caller that as with DNA evidence, you don't want there to be any real doubt when you're executing an innocent person, and even the Supreme Court standard is too high and Congress should change it. Also, I would like to hear right now why it is that we should not have doubt in confidence of this verdict?

CONAN: Peter, thanks very much for the phone call. Appreciate it.

PETER: You're welcome. Thank you for having me.

CONAN: And I'd like to thank Spencer Lawton for his time today. It's been interesting to speak with you. And again, I recommend people go to our website to read the piece from the newspaper there.

Mr. LAWTON JR: Thank you very much, I appreciate being with you.

CONAN: Spencer Lawton Jr. the Chatham County district attorney believes that Troy Davis's verdict is correct. And Jeffrey Rosen, before we let you go - the Supreme Court did consider another death penalty case from Georgia. There were some dissenting opinions about that which raised some interesting issues about other cases in the future.

Mr. ROSEN: Yes, indeed. It was very interesting. This is Walker(ph) in Georgia, on Monday the Supreme Court turned down the appeal. But there's a very interesting discussion between Justice Stevens and Justice Clarence Thomas. Stevens agreed the court shouldn't approve the case but he said state courts should compare these cases where you get the death penalty to other cases where death penalties are not imposed, to make sure that the death penalty is not being imposed arbitrarily. Justice Thomas disagreed, he said, you don't need proportionality review. The constitution doesn't require that. Obviously what's going on here is a question of whether race is a factor in leading the death penalty to be disproportionately imposed.

The Supreme Court famously ducked that question a couple of decades ago and then maybe on the verge of reexamining it. But for me, this Walker in Georgia discussion on Monday gives me a little more confidence in Troy Davis because, we had the liberal justices, justices like Justice Stevens had serious doubt that an innocent man was being executed, they would have said so. They're not quiet as this case today shows. So I have to believe that they weren't merely making a procedure of ruling but were not actually convinced that these recantations raised serious doubt about guilt.

CONAN: And interesting Justice John Paul Stevens, the question he was raising was the number of times when people are sentenced to death because the victim of the crime was white rather than necessarily that the perpetuator was of another race.

Mr. ROSEN: That's precisely right, and there was an extensive study presented to the Supreme Court, I think in the 1980s where it was suggested that when victims are white, the death penalty is disproportionately imposed. The court refused to take that issue up, its docked it. Many people think, including Barack Obama actually as it happens - that this discriminatory imposition of the death penalty is the lingering shame of the American justice system. And Justice Stevens attempt to resurrect that case on Monday, suggests the court may be asked to see it again. And especially if they are new justices, this may be one of the great issues confronting the case. So it may come in a couple of years.

CONAN: Jeffrey Rosen, it's always nice to have you on the program.

Mr. ROSEN: Thank you.

CONANA: Jeffrey Rosen, law professor at the George Washington University, his most recent book to Supreme Court, The Personalities and Rivalries that Defined America. He was with us here in 3A. At this moment Troy Davis sentenced to be executed next week, the last court of appeal is the governor, Sonny Purdue, who called the issue a commutation or a pardon if he so desires but as we've heard, probably not likely. Coming up next on Talk of The Nation, exporting the US election for president, if you traveled overseas lately, were you dragged into a discussion about US politics? Tell us your story, 800-989-8255. Stay with us, I'm Neal Conan, Talk of The Nation, NPR News.

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