Sep 2, 2010
Troy Anthony Davis and the Death Penalty
Troy Davis is a man on death row in the state of Georgia in the United States who has come to represent all that is wrong with capital punishment. Davis has endured three execution dates despite the fact that most of the prosecution witnesses have recanted their testimony since he was convicted in 1991. His case throws into sharp relief the problems with capital punishment, but also on a broader level, raises fundamental questions common to all criminal justice systems about miscarriages of justice and judicial responsibility. In March of this year, Davis’ sister Martina Correia received the Sean McBride Award for Outstanding Contribution to Human Rights from Amnesty International’s Irish section.
This post sets out the history of the Davis case and briefly discusses the latest ruling on August 24th by a federal judge, in which his appeal (a petition for a writ of habeas corpus) was once again rejected.
Background
In 1991 Davis was convicted of the murder of off-duty police officer Mark Allen MacPhail in Savannah, Georgia in 1989. There was no physical or forensic evidence linking Davis to the crime and the murder weapon was never found. Seven of the nine witnesses whose testimony was used to convict Davis, later recanted, many of them saying that they were pressurised by the police into saying that Davis was the murderer.
Evidentiary Hearing
On 24 August US District Court Judge William T. Moore Jr ruled (in a 174-page order, available in two parts, here and here) that Davis had failed to prove his innocence during an extraordinary evidentiary hearing held in June. That hearing was mandated by the U.S. Supreme Court in decision delivered in August 2009. The Amnesty Report on the Supreme Court’s decision is here. The final briefs filed by Amnesty International after the evidentiary hearing are here.
According to Amnesty International representatives who attended the evidentiary hearing in June:
Four witnesses admitted in court that they lied at trial when they implicated Troy Davis and that they did not know who shot Officer Mark MacPhail.
· Four witnesses implicated another man as the one who killed the officer – including a man who says he saw the shooting and could clearly identify the alternative suspect, who is a family member.
· Three original state witnesses described police coercion during questioning, including one man who was 16 years old at the time of the murder and was questioned by several police officers without his parents or other adults present.
The key question for Judge Moore was whether Davis could show “by clear and convincing evidence that no reasonable juror would have convicted him in the light of the new evidence ” that has emerged since his 1991 trial. While Judge Moore admitted that this was “an extraordinarily high standard” and that the state’s case against Davis was “not ironclad”, he concluded that Davis is not innocent. Judge Moore considered only one of the recantations to be credible. He held that while the new evidence presented by Davis “casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors.”
Anne Emanuel, legal analyst for Amnesty International USA stated after the hearing:
Given the evidence that emerged from the two-day hearing it is clear that the State’s case against Troy Davis is thin and tainted. Today’s hearing underscores the deepening doubt that has plagued this case.
‘It is difficult to imagine that a jury would convict Davis today after hearing four of the witnesses who convicted Davis 19 years ago testify in open court before a judge that they lied. One eyewitness testified for the first time that he saw his relative, the alternative suspect, Sylvester “Redd” Coles, shoot police officer Mark Allen MacPhail in 1989.’
In light of the serious evidential problems at the heart of this case, it is shocking to think that the State of Georgia may execute a man where he has failed to conclusively prove his innocence. Judge Moore’s ruling leaves no room for doubt, even though Georgia is a state where a unanimous jury verdict is required to pass a death sentence. The imposition of such a high threshold would seem to be at odds with the burden and standard of proof that the State must carry, and the right to life.
The one positive holding in this case, from a due process perspective, is that Judge Moore ruled that the execution of an innocent person would violate the 8th Amendment to U.S. Constitution, which prohibits cruel and unusual punishments.
International Criticism
People from all over the world, including Pope Benedict XVI, Desmond Tutu and former US president Jimmy Carter have taken up Davis’ plea for clemency. His family has also campaigned tirelessly on his behalf – Davis’ sister spoke at Trinity College, Dublin, In March. Her interview with Pat Kenny is here. Harvard Law Professor Charles Ogletree has added his voice to appeal for clemency , highlighting the role played by race in the US criminal justice system:
It is difficult to ignore the racial contrasts offered in the Davis case, just as it is to ignore the glaring racial disparities surrounding the case. While African Americans make up less than a third (29.2 percent) of Georgia’s total population, they are highly overrepresented in the state’s justice system. Blacks make up 61.3 percent of Georgia’s prison population and 45.7 percent of death row. These disparities are certainly not unique to Georgia, but characterize national trends.
The injustice of executing a man when there is a doubt over the validity of his conviction is even more stark in light of recent research findings. A study by Carol Steiker (Harvard Law School) and her brother Jordan Steiker (University of Texas at Austin Law School) on the effectiveness of the death penalty provisions of the American Law Institute’s Model Penal Code found that there are too many obstacles, both structural and institutional, to administering the death penalty in an objectively impartial and non-arbitrary way. (The report is available here at Annex B). The death penalty provisions of the Model Penal Code had provided the blue print for death penalty laws in the US over the last 35 years. The Steikers’ findings prompted the ALI to vote last autumn to withdraw the capital punishment section of its Model Penal Code, in a move that the New York Times called “a tectonic shift in legal theory”. Read Prof Carol Steiker’s discussion of the study here.
Davis has one final avenue of appeal open to him before the State of Georgia can proceed with his execution. The Amnesty International petition to appeal for clemency is here.
Based upon the evidence presented in this last hearing, it was clear the court would rule against Davis. This shouldn’t have come as a surprise to anyone that knew the facts of the case.
Anti death penalty folks, were, of course, fed a bunch of nonsense by their leadership and they simply accepted it.
As I wrote 6/25/10
Innocence claims will offer no reprieve for Troy Davis
Based upon the media reports, alone, of the two day hearing of June 2010, just as I suspect Davis’ attorneys have known all along, the appellate case cannot prevail in overturning the findings that Troy Davis is guilty of the murder of Police Officer Mark Allen MacPhail.
What happened in the two day hearing was very ordinary, if you are aware of anti death penalty nonsense. (1)
Sylvester “Redd” Coles’ “Confessions”
The blockbuster witnesses who were going to testify that the “real murderer” Sylvester “Redd” Coles had confessed to them were not allowed to testify, because Davis’ attorneys refused to call Coles to testify, thereby rendering these witnesses in possession of hearsay evidence and, therefore, not able to testify.
Well, Judge Moore did allow, wrongly, one of them, Anthony Hargrove, to testify. The judge “said that unless Coles is called to the stand, he might give (Hargrove’s) hearsay testimony “no weight whatsoever.”
Of course, Davis’ attorneys didn’t call Coles. Davis’ attorneys made sure Hargrove’s testimony as well as the other “confession” witnesses will have no weight.
This will become part of the anti death penalty PR machine – the anti death penalty folks will blame the system for not allowing the “truth” to come out, by muzzling these witnesses, even though Davis’ attorneys had to do this intentionally, knowing that the witnesses couldn’t be heard, because of the hearsay rule.
The defense couldn’t call Coles, because he would have been a strong witness to rebut his alleged confessions, therefore making things worse for Davis. I seems obvious that the defense made a statement as to how fragile and unreliable these “confession” witnesses were that Davis’ attorneys refused to call Coles.
Hargrove being wrongly allowed to testify must have been a surprise.
“Recantation” Witnesses
The additional problem for Davis is this: There are solid witnesses against Davis who did not recant.
The recantation witnesses claims that the police pressured or threatened them into falsely testifying make no sense.
First, there were enough witnesses against Davis – the state had a solid case – therefore there was no reason to put lying witnesses on the stand. Even if we presume that some were pressured and threatened into false statements, both police and prosecutors knew, before trial, that they need not risk putting any such perjuring witnesses on the stand. They had enough evidence without them.
Why risk perjured testimony when you don’t need it? They wouldn’t have.
Secondly, the non recantation witnesses, the police investigators, and prosecutors have been consistent from the beginning of the case – those witnesses haven’t recanted, and police and prosecutors have testified that there were no threats or pressure for false testimony and those consistent, non recanting witnesses gave truthful statements without pressure or threats.
Thirdly, there is no evidence that the investigating officers or the prosecutors had ever been involved in such illegal activities before and the non recantation witnesses give more weight to the position that police and prosecutors did not pressure or threaten for false testimony and to the proposition that the recantations were the lies.
Judges are very aware of false testimony and how pressure can be applied to produce it, by community activists, such as anti death penalty folks.
Judges are aware that pressure is a two sided coin and they must consider both sides of it and how that may effect credibility. In a case such as this, the evidence is such that Davis cannot prevail.
Credibility – this says it all.
“(Troy) Davis’ legal team also summoned Benjamin Gordon, who testified that he saw Sylvester “Redd” Coles shoot and kill the officer.” (2)
Gordon, who is incarcerated and has at least six prior felony convictions, said he never came forward because he did not trust the police and feared what Coles might do to him or his family in retaliation.
“Is there any doubt in your mind that Redd Coles fired that shot?” Horton asked. “No, sir,” Gordon replied.
Davis’ legal team has long maintained that Coles, who was at the scene and came forward after (Police Officer) MacPhail’s slaying and implicated Davis to police, was the actual triggerman. Coles has denied shooting MacPhail.
Beth Attaway Burton, the state’s lead attorney, got Gordon to acknowledge he never said he saw Coles shoot MacPhail in interviews with police “or in sworn statements he gave Davis’ legal team in 2003 and 2008.”
“What made you change your story today?” Burton asked.
“It’s the truth,” Gordon said. ”
I think the judge will have to weigh Gordon’s credibility similarly to that of Davis’ other supportive witnesses – ZERO.
—————————–
Note: We will hear protests that Davis’ attorneys tried to subpoena Coles the day before the hearing, but couldn’t locate him. The judge didn’t buy it saying that there was no excuse based upon them having much time to prepare for the hearing. It’s clear they didn’t want Coles. When Davis loses this appeal, he will then appeal to a higher court, which will uphold the denial.
(1) 3 of many
“The Innocent Executed: Deception & Death Penalty Opponents”
http(COLON)//homicidesurvivors.com/2009/10/08/the-innocent-executed-deception–death-penalty-opponents–draft.aspx
The 130 (now 139) death row “innocents” scam
http(COLON)//homicidesurvivors.com/2009/03/04/fact-checking-issues-on-innocence-and-the-death-penalty.aspx
“Cameron Todd Willingham: Another Media Meltdown”, A Collection of Articles
http(COLON)//homicidesurvivors.com/categories/Cameron%20Todd%20Willingham.aspx
(2) All quotes from this article:
“Witnesses back off testimony against Troy Davis”, The Atlanta Journal-Constitution, June 23, 2010 www(DOT)ajc.com/news/atlanta/witnesses-back-off-testimony-555778.html?cxntlid=daylf_artr
Other references:
Troy Davis: Both sides need to be told
Dudley Sharp, contact info below
Anyone interested in justice will demand a fair, thorough look at both sides of this or any case. Here is the side that the pro Troy Davis faction is, intentionally, not presenting.
(1) Davis v Georgia, Georgia Supreme Court, 3/17/08
Full ruling www(DOT)gasupreme.us/pdf/s07a1758.pdf
Summary www(DOT)gasupreme.us/op_summaries/mar_17.pdf
” . . . the majority finds that ‘most of the witnesses to the crime who have allegedly recanted have merely stated that they now do not feel able to identify the shooter.’ “One of the affidavits ‘might actually be read so as to confirm trial testimony that Davis was the shooter.’ ”
The murder occurred in 1989.
(2) “THE PAROLE BOARD’S CONSIDERATION OF THE TROY ANTHONY DAVIS CASE” , 9/22/08, www(DOT)pap.state.ga.us/opencms/opencms/
“After an exhaustive review of all available information regarding the Troy Davis case and after considering all possible reasons for granting clemency, the Board has determined that clemency is not warranted.”
“The Board has now spent more than a year studying and considering this case. As a part of its proceedings, the Board gave Davisâ?? attorneys an opportunity to present every witness they desired to support their allegation that there is doubt as to Davisâ?? guilt. The Board heard each of these witnesses and questioned them closely. In addition, the Board has studied the voluminous trial transcript, the police investigation report and the initial statements of all witnesses. The Board has also had certain physical evidence retested and Davis interviewed.”
(3) A detailed review of the extraordinary consideration that Davis was given for all of his claims,
by Chatham County District Attorney Spencer Lawton http(COLON)//tinyurl.com/46c73l
Troy Davis’ claims are undermined, revealing the dishonesty of the Davis advocates . Look, particularly, at pages 4-7, which show the reasoned, thoughtful and generous reviews of Davis’ claims, as well a how despicable the one sided cynical pro Troy Davis effort is.
(4) Officer Mark Allen MacPhail: The family of murdered Officer MacPhail fully believes that Troy Davis murdered their loved one and that the evidence is supportive of that opinion. www(DOT)fop9.net/markmacphail/debunkingthemyths.cfm
Not simply an emotional and understandable plea for justice, but a detailed factual review of the case.
(5) “Death and Dying”, by Cliff Green, LIKE THE DEW, 7/22/09,
http(COLON)//likethedew.com/2009/07/22/death-and-dying/
Thanks for the comment. I think the main criticism of the judgment is that it imposes an impossibly high standard on Davis, who in effect has to conclusively show his innocence in order to be successful. The cost of failing to reach this “extraordinarily high standard” is his life.
To say that the prosecution had a solid case is surprising given the complete lack of physical and forensic evidence connecting Davis to the murder. In a case based on eye witness testimony (which in itself is infamously fallible as a category of evidence- see the research by Elizabeth Loftus at UCal Irvine), recantations by so many witnesses is extremely worrying.
Furthermore, the fact that the police and the prosecution and two other witnesses did not recant does not mean that the recantation witnesses are lying.
The point is should Davis put to death when serious fundamental questions have been raised and continue to be raised about his conviction.
Ms. Ring:
You are in error.
All of the fact finders in this case, from his orginal trial, until today, disagree with your assesment.
That is why I linked a number of reviews. Please read them.
Folks are most often fooled and confused by the anti death penalty distortion of these cases.
Please review, as well:
The false innocence claims by anti death penalty activists are legendary. Some examples:
“The Innocent Executed: Deception & Death Penalty Opponents”
http(COLON)//homicidesurvivors.com/2009/10/08/the-innocent-executed-deception–death-penalty-opponents–draft.aspx
The 130 (now 139) death row “innocents” scam
http(COLON)//homicidesurvivors.com/2009/03/04/fact-checking-issues-on-innocence-and-the-death-penalty.aspx
“A Death Penalty Red Herring: The Inanity and Hypocrisy of Perfection”, Lester Jackson Ph.D.,
www(DOT).com/article.aspx?id=102909A
“The Exonerated: Are Any Actually Innocent?”
http(COLON)//homicidesurvivors.com/2006/08/21/the-exonerated-are-any-actually-innocent—new-mexico.aspx
Sister Helen Prejean & the death penalty: A Critical Review”
http(COLON)//homicidesurvivors.com/2009/05/04/sister-helen-prejean–the-death-penalty-a-critical-review.aspx
“At the Death House Door” Can Rev. Carroll Pickett be trusted?”
http(COLON)//homicidesurvivors.com/2009/01/30/fact-checking-is-very-welcome.aspx
“Cameron Todd Willingham: Another Media Meltdown”, A Collection of Articles
http(COLON)//homicidesurvivors.com/categories/Cameron%20Todd%20Willingham.aspx
Whoa, whoa, whoa. Hold on there, chief. You erroneously say there are witnesses against Troy who didn’t recant. As you know, that’s not true.
There are two people who did not recant against Troy: Redd Coles, who multiple eye witnesses have testified is the actual murderer of Officer MacPhail, and a former serviceman who was on leave and at the Burger King the night of MacPhail’s murder. His testimony at Troy’s first trial was that he recognized Troy and that answer was wrongly used as identification of Troy as MacPhail’s murderer. He has said that he recognized Troy from all the pre-trial publicity (the wanted posters put up asserting he was guilty before he was arrested, which prejudiced the community and was the reason the Davis legal team has repeatedly asked for a change of venue). So you are right about your observation that the state wouldn’t have had to manufacture false witnesses if they bad legitimate ones, which they clearly didn’t. Anyone can read the court transcripts and see that.
The Davis legal team, having been charged with doing so, chose to try to prove Troy’s innocence at the June, 2010, hearing – NOT waste Judge Moore’s time by trying to prove the state’s case wrong, which the act of putting Coles on the stand would have been doing. It also would have been practically fruitless, since the now reputedly reformed Coles, not wishing to repeat his perjury for which he can legally be held responsible, would have without question taken the fifth and refused to incriminate himself, leading exactly to the situation you describe anyway – witnesses whose testimony is deemed hearsay. They had a limited time to prove troy innocent, and given that Judge Moore allowed hearsay testimony previously that was used to convict Troy (Anthony’s false “Troy told me he did it”), they were uncertain whether or not Judge Moore would show the same type of leniency when it came to clearing Troy. Well, perhaps that was foolish, but what other choice did they have? They were just following Judge Moore’s orders.
Thank you.
Also – Redd Coles has been arrested nearly 20 times and NEVER convicted. To say that he has a cozy relationship with Savannah police is an understatement. He appears to have been the Whitey Bulger of Savannah, currently residing on the FBI’s most secret witness protection plan, the 10 Most Wanted list.