Troy Davis Case - A series of articles
Most recent is here. Scroll down for previous stories:
By Richard Fausset
August 18, 2009
Los Angeles Times
http://www.latimes.com/news/nationworld/nation/la-na-execution18-2009aug18,0,5637444.story
In an extremely rare move, the Supreme Court today granted a new evidentiary
hearing for Troy Anthony Davis, the Georgia death row inmate convicted of
killing an off-duty Savannah, Ga., police officer in 1989.
Davis, 40, has exhausted his appeals in the state court system and is awaiting
execution, despite the fact that seven of the key witnesses in his trial have
since recanted their testimony.
Davis' case has gained worldwide attention. A number of public figures --
including former President Carter, Pope Benedict XVI and Bishop Desmond Tutu of
South Africa -- have called for him to have a new day in court.
In today's order, written by Justice John Paul Stevens, the high court
instructed a federal district court to hear such testimony and determine whether
evidence that "could not have been obtained at the time of trial" clearly
establishes Davis' innocence.
"The substantial risk of putting an innocent man to death clearly provides an
adequate justification for holding an evidentiary hearing," Stevens wrote in the
order, with Justices Stephen G. Breyer and Ruth Bader Ginsburg concurring.
Davis' sister, Martina Correia, said she was "more shocked than elated" by an
order that even Davis' attorneys had considered the legal equivalent of a Hail
Mary pass. "Lawyers are kind of like doctors -- they've got to give you the
gloom and doom first," said Correia in a phone interview. "... But if I'd felt
that way, I couldn't have kept fighting for this for so long."
Correia said that she was unable to contact Davis because he was in the prison
hospital recovering from an injury received while playing basketball. She was
unsure if he had heard of the Supreme Court's order.
Dissenting from today's order were Justices Anthony Scalia and Clarence Thomas.
Scalia, the author of the dissent, called Davis' case a "sure loser," and argued
that the essence of his appeal had already been considered and rejected by a
number of bodies, including the Georgia Supreme Court and state parole board.
Scalia noted that the high court had not sent a state prisoner's case back to a
district court for adjudication in nearly 50 years. He said the district court
was barred from granting relief to Davis by the Anti-terrorism and Effective
Death Penalty Act. The 1996 law, passed in the wake of the Oklahoma City
domestic terror bombing, limits the ability of inmates to seek relief from the
federal courts using writs of habeas corpus, which challenge unlawful detention.
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Some say Davis, a black man, was wrongly convicted of killing an off-duty white police officer. They are pressing the county's first black D.A. to intervene, a politically dicey prospect.
By
Richard Fausset
Los
Angeles Times
June 3, 2009
http://www.latimes.com/news/nationworld/nation/la-na-savannah3-2009jun03,0,1341968.story
Reporting from Savannah, Ga. — Larry Chisolm, the first black district attorney
in Chatham County, Ga., was sitting in his modern, sixth-floor office,
tolerating an interview but declining to speak about the problem that he may
have to address soon -- the one that could come to define and complicate the
rest of his young political career.
It is a problem he inherited. The problem of death row inmate Troy Davis.
Behind Chisolm, a window framed the western flank of this old Southern city, the
county seat, offering a clear view of the bus station parking lot where Davis, a
black man, allegedly killed an off-duty white police officer in 1989.
In recent years, recantations from key witnesses -- and Davis' inability to win
a new trial -- have made the case an international cause celebre, sparking
European street demonstrations and calls for a new day in court from former
President Carter, a Democrat, and former U.S. Rep. Bob Barr, a Republican.
But now, as Davis' execution looks increasingly likely, the advocates for a new
case are turning their attention to Savannah's newly elected prosecutor. The
local NAACP chapter is imploring Chisolm to get involved. Carter sent him a
letter recently, as did the Congressional Black Caucus.
"It is up to principled leaders like you to take the actions necessary to ensure
that flaws are corrected, that wrongs are righted, and that justice prevails
over injustice," said the caucus' letter, whose signatories included a Georgia
civil rights icon, Democratic Rep. John Lewis.
If Chisolm -- a trim, fastidious 49-year-old with a quiet, measured voice -- was
feeling the pressure on a hot Thursday afternoon, he didn't let on.
As to whether he has the power to intervene, he said, smiling, "When you find
that out would you let me know?"
Some of Davis' supporters say that Chisolm indeed has the ability to intervene
-- and they predict that he will have to make a decision soon. Though Davis has
a petition pending before the U.S. Supreme Court, his lawyer, Jason Ewart,
admits the filing is "a longshot." An execution date has not been set; the high
court could rule on the petition as early as this month.
If, as expected, the petition is denied, observers say that could leave Chisolm
with a vexing choice.
He could ask the state parole board to postpone the execution and open a new
investigation, as Davis' attorneys have requested. That would be a bold move for
a rookie elected official: Both the Georgia Supreme Court and the U.S. 11th
Circuit Court of Appeals denied Davis a new trial, in part because courts view
recantations as inherently suspect.
Reopening the case could also risk alienating white and conservative voters and
complicate Chisolm's relationship with the police force. But if Chisolm fails to
intervene, "that would be very unpopular to a lot of black folk," said the Rev.
Matthew Southall Brown, a longtime black leader in Savannah.
"All eyes are on him to see what he's going to do, and how he's going to handle
this thing," said Brown, 77, the pastor emeritus of St. John Baptist Church.
"It's a Catch-22 for him. . . . You're damned if you do, and damned if you
don't."
Though it has earned global attention, it is difficult to gauge how potent the
Davis case is here. Savannah is an old-fashioned place that prizes gentility and
manners, and even local activists say it's no hotbed of public demonstration.
Moreover, the Davis saga has played out at a near-glacial pace. It was nearly
two decades ago when Officer Mark MacPhail rushed across the dark parking lot to
aid an African American homeless man who was being pistol-whipped by another
man. Someone fatally shot MacPhail before he could help.
In court, nine witnesses testified against Davis. But seven of those witnesses
began recanting their testimony in 2000 -- nine years after the trial. New
witnesses have emerged who assert that a man other than Davis was the shooter,
according to court filings from Davis' attorneys.
Prince A. Jackson Jr., head of the Savannah branch of the National Assn. for the
Advancement of Colored People, said that his group didn't get involved early on
because the case against Davis seemed so strong: "It was almost open and shut,"
he said.
But the group has changed course over time. In hindsight, Jackson now says, the
case was a "rush to judgment," brought on in part by the fact that the officer
was white.
Over the years, former Dist. Atty. Spencer Lawton Jr. -- who was portrayed
unfavorably by author John Berendt in the nonfiction murder mystery "Midnight in
the Garden of Good and Evil" -- stood by his prosecution of Davis. Chisolm
worked in his office as an assistant prosecutor from 1987 to 2006, but was not
involved in the Davis case.
When Lawton announced he would retire in 2008, Chisolm decided to run on the
Democratic ticket, even though Lawton, a 28-year veteran of the office, had
handpicked Republican David Lock, his chief assistant, to be his successor.
Chisolm won the race over Lock in November with 54% of the vote, thanks in part
to large black turnout for Barack Obama.
The achievement of the hometown lawyer generated pride among blacks in this Old
South city. Chisolm's father was a maintenance man at Savannah State University,
the local black college. Chisolm left Savannah for Duke University, where he
attended law school.
He returned home to a city where many black residents continue live in dire
conditions amid charming, tourist-friendly historic squares. According to the
2000 census, 34% of black children in the Savannah metropolitan area live in
poverty.
"It gave hope to all the other young African Americans who have ambitions and
want to move up the ladder," Jackson said.
Even as he pressures Chisolm to intervene in the Davis case, Jackson, like the
Rev. Brown, admits that the new D.A. is "between a rock and a hard place."
In the interview, Chisolm spoke generally about the death penalty, saying he
supports it because it is Georgia law. He said he sought it twice as an
assistant D.A., with both cases ending in life sentences.
Chisolm said he wouldn't speak about the Davis case until all appeals were
exhausted. And yet he did offer one comment: He noted that Officer MacPhail died
coming to the aid of an African American.
"He put his life at risk to try to save the life of a black man," he said. "And
that's a story in and of itself in terms of race, and where Savannah is in terms
of race relations."
Supreme Court clears way for Georgia execution
The final appeal from Troy Davis, convicted of killing a police office in 1989, is turned away without comment. Davis' lawyers say 7 of 9 witnesses against him have since recanted.
By David G. Savage
Los Angeles Times
October 14, 2008
WASHINGTON — The Supreme Court today cleared the way for the execution of a
Georgia man who claimed he was wrongly convicted of shooting a police officer in
a dark parking lot in Savannah.
The justices turned away Troy Davis' final appeal in a one-line order without
comment or dissent.
His lawyers said seven of the nine witnesses who pointed to Davis at his trial
have since recanted their testimony. They said his case raised the "great
constitutional" question of whether an innocent man can be put to death.
Apparently, the justices did not agree. They did not explain why.
Davis had been scheduled to die Sept. 23, but the high court issued a stay so it
could consider his appeal.
One possible explanation for today's action is that the justices have studied
the record and concluded that Davis was properly convicted. A state appeals
court, the Georgia Supreme Court, a federal district judge, the U.S. court of
appeals in Atlanta and the Georgia Board of Pardons reviewed Davis' case --
including the recanted statement from the witnesses -- and ultimately upheld his
guilt.
But the Georgia Supreme Court divided 4-3 on the question. The majority said it
put greater faith in the trial testimony of the witnesses. The dissenters said
Davis should have a new trial.
Amnesty International USA today denounced the courts' refusal to hear Davis'
appeal. "The Supreme Court's decision is truly shocking, given that significant
evidence of Davis' innocence will never have a chance to be examined," said
Larry Cox, its executive director. "Faulty eyewitness identification is the
leading cause of wrongful convictions, and the hallmark of Davis' case."
Davis' conviction rested on the statements of several people who were in or near
the parking lot of a Burger King after midnight one night in August 1989.
Officer Mark MacPhail was on duty at the Greyhound bus station and came out to
stop a fight involving a homeless man who had a six-pack of beer.
MacPhail gave chase to one man, who turned and shot him. The shooter then fired
several more times, killing MacPhail.
Troy Davis, then 19, was there, as was Sylvester "Redd" Coles. Both men are
black, and they were about the same age, height and weight.
Coles identified Davis as the shooter and was the state's strongest witness in
the murder case. Davis' lawyers contend Coles was the shooter and that he
falsely pointed to Davis.
During the trial, several witnesses said they saw Davis accost the homeless man,
and they said he had a gun. Others said they had seen the shooting from some
distance, but most of them said later they were not sure who had fired the
shots.
"The only remnants of the state's case against [Davis] are the self-serving
testimony of Redd Coles and Steve Sanders' dubious in-court identification of
Mr. Davis that occurred two years after the crime," Davis' lawyers said in their
appeal to the high court.
President Jimmy Carter, Pope Benedict XVI and Nobel Peace Prize winner
Archbishop Desmond Tutu are among those who have objected to the execution of
Troy Davis.
************
Supreme Court's Death Penalty Ruling in Troy Davis Case Reveals 'Catastrophic Flaws in the U.S. Death Penalty Machine'
Amnesty International
June 25, 2007
(Washington, D.C.) -- Amnesty International is deeply disappointed with today's Supreme Court ruling that permits the execution of Troy Anthony Davis in Georgia. The organization maintains that evidence in his favor, which has never been heard in a courtroom, is enough to demonstrate that Davis should be granted a new hearing.
"The Supreme Court decision is proof-positive that justice truly is blind -- blind to coerced and recanted testimony, blind to the lack of a murder weapon or physical evidence and blind to the extremely dubious circumstances that led to this man's conviction," said Larry Cox, executive director of Amnesty International USA (AIUSA). "At times there are cases that are emblematic of the dysfunctional application of justice in this country. By refusing to review serious claims of innocence, the Supreme Court has revealed catastrophic flaws in the U.S. death penalty machine."
Troy Anthony Davis, who is African American, was convicted in 1991 of murdering Mark McPhail, a white police officer. Davis' conviction was not based on any physical evidence, and the murder weapon was never found.
The prosecution based its case on the testimony of purported "witnesses," many of whom allege police coercion. Seven of the nine non-police witnesses for the prosecution have recanted their testimony in sworn affidavits. One witness signed a police statement declaring that Davis was the assailant, then later said, "I did not read it because I cannot read." In another case a witness stated that the police "were telling me that I was an accessory to murder and that I would ... go to jail for a long time and I would be lucky if I ever got out, especially because a police officer got killed ... I was only 16 and was so scared of going to jail."
There are also several witnesses who have implicated another man in the murder. According to one woman, "People on the streets were talking about Sylvester Coles being involved with killing the police officer, so one day I asked him ... Sylvester told me that he did shoot the officer."
Despite this, Davis' habeas corpus petition was denied by the state court on a technicality -- evidence of police coercion was "procedurally defaulted," that is, not raised earlier, so the court refused to hear it. The Georgia Supreme Court and 11th Circuit Federal Court of Appeals deferred to the state court and rejected Davis' claims. Today the U.S. Supreme Court refused to hear his case and Davis is now left without any legal recourse; he could be executed within weeks. It is shocking that in more than 12 years of appeals, no court has agreed to hear evidence of police coercion or consider the recanted testimony.
"It is appalling that so many judges were able to look away from such a grave breach of justice. Evidence of innocence simply hasn't mattered," said Sue Gunawardena-Vaughn, director of AIUSA's Program to Abolish the Death Penalty. "This should be viewed as a day of great shame for our nation, one in which the green light was given to execute a citizen who may well be innocent."
************
UNITED STATES OF AMERICA
'Where is the justice for me?'
The case of Troy Davis, facing execution in Georgia
I think this country would be much better off if we did not have capital
punishment... I really think it's a very unfortunate part of our judicial system
and I would feel much, much better if more states would really consider whether
they think the benefits outweigh the very serious potential injustice, because
in these cases the emotions are very, very high on both sides and to have stakes
as high as you do in these cases, there is a special potential for error.
US Supreme Court Justice John Paul Stevens(1)
http://www.amnestyusa.org/document.php?lang=e&id=ENGAMR510232007
Introduction
Troy Anthony Davis has been on death row in Georgia for more than 15 years for
the murder of a police officer he maintains he did not commit. Given that all
but three of the witnesses who testified against Troy Davis at his trial have
since recanted or contradicted their testimony amidst allegations that some of
it had been made under police duress, there are serious and as yet unanswered
questions surrounding the reliability of his conviction and the state's conduct
in obtaining it. As the case currently stands, the government's pursuit of the
death penalty contravenes international safeguards which prohibit the execution
of anyone whose guilt is not based on "clear and convincing evidence leaving no
room for an alternative explanation of the facts".(2)
Amnesty International does not know if Troy Davis is guilty or innocent of the
crime for which he is facing execution. As an abolitionist organization, it
opposes his death sentence either way. It nevertheless believes that this is one
in a long line of cases in the USA that should give even ardent supporters of
the death penalty pause for thought. For it provides further evidence of the
danger, inherent in the death penalty, of irrevocable error. As the Chief
Justice of the United States Supreme Court wrote in 1993, "It is an unalterable
fact that our judicial system, like the human beings who administer it, is
fallible."(3) Or as a US federal judge said in 2006, "The assessment of the
death penalty, however well designed the system for doing so, remains a human
endeavour with a consequent risk of error that may not be remediable."(4)
The case of Troy Davis is a reminder of the legal hurdles that death row inmates
must overcome in the USA in order to obtain remedies in the appeal courts. In
this regard, Amnesty International fears that Troy Davis' avenues for judicial
relief have been all but closed off. In particular, he is caught in a trap set
by US Congress a decade ago when it withdrew funding from post-conviction
defender organizations in 1995 and passed the Anti-terrorism and Effective Death
Penalty Act in 1996.
This report outlines the case of Troy Davis. Executive clemency will be his last
hope if the courts prove unwilling or unable to provide a meaningful remedy.
Time is running out.
The inescapable risk of error
A legal regime relying on the death penalty will inevitably execute innocent people -- not too often, one hopes, but undoubtedly sometimes. Mistakes will be made because it is simply not possible to do something this difficult perfectly, all the time. Any honest proponent of capital punishment must face this fact.(5)
Thirty years after the USA
resumed executions, any notion that the US capital justice system is free from
error or inequity should by now have been dispelled.(6) A landmark study
published in 2000, for example, concluded that US death sentences are
"persistently and systematically fraught with error".(7) The study revealed that
appeal courts had found serious errors -- those requiring a judicial remedy --
in 68 per cent of cases. The most common errors in US capital cases were "(1)
egregiously incompetent defense lawyers who didn't even look for - and
demonstrably missed - important evidence that the defendant was innocent or
did not deserve to die; and (2) police or prosecutors who did discover
that kind of evidence but suppressed it, again keeping it from the jury."
The study expressed "grave doubt" as to whether the courts catch all such error.
In Troy Davis' case, his appeal lawyers have argued that his trial counsel
failed to conduct an adequate investigation of the state's evidence, including
allegations that some witnesses had been coerced by the police, or to present
full and effective witness testimony of their own (the prosecution presented 30
witnesses in total, the defence presented six).(8) They have also claimed that
the state presented perjured testimony as well as evidence tainted by a police
investigation which had used coercive tactics, including against children taken
into custody for questioning. As shown below, alleged police coercion is a
common theme that emerges from the affidavits that various witnesses have
provided since the trial when recanting earlier statements.
Perhaps the starkest indicator of the fallibility of the US capital justice
system is the fact that since the US Supreme Court approved new death penalty
laws in 1976, more than 100 individuals have been released from death rows
around the country on grounds of innocence. The cases of people like Anthony
Porter -- who came 48 hours from execution in 1998 after more than 16 years on
death row in Illinois before being proved innocent by a group of journalism
students who happened to study his case -- stand as an indictment of a flawed
system. In April 2002 in Illinois, the 14-member Commission appointed by the
governor to examine that state's capital justice system in view of the number of
wrongful convictions in capital cases there, reported that it was "unanimous in
the belief that no system, given human nature and frailties, could ever be
devised or constructed that would work perfectly and guarantee absolutely that
no innocent person is ever again sentenced to death".
In similar vein, in January 2007, after a process in which it held five public
hearings and took evidence from a wide range of witnesses, a Death Penalty Study
Commission established by the New Jersey legislature recommended abolition of
the death penalty in that state. The Commission had failed to find any
compelling evidence that the death penalty served any legitimate penological
purpose, and it concluded that only abolition could eliminate the risk of
irreversible arbitrariness and error. New Jersey Death Penalty Study Commission
Report, January 2007.(9)
Yet still some maintain that exonerations of condemned inmates are a sign of the
system working. Among those who have perpetuated this myth is US Supreme Court
Justice Antonin Scalia. Such exonerations, he has contended, demonstrate "not
the failure of the system but its success". Justice Scalia added:
"Like other human institutions, courts and juries are not perfect. One cannot
have a system of criminal punishment without accepting the possibility that
someone will be punished mistakenly. That is a truism, not a revelation. But
with regard to the punishment of death in the current American system, that
possibility has been reduced to an insignificant minimum."(10)
It is disturbing that anyone, let alone a Justice of the Supreme Court, should
consider as "insignificant" the risk of wrongful convictions in capital cases
given what is known about the repeated failures of the system. The risk was not
insignificant to the more than 100 individuals sentenced to death since 1976 who
spent, on average, more than nine years between conviction and exoneration.(11)
Factors that contributed to these wrongful convictions include prosecutorial or
police misconduct and inadequate legal representation.
Of particular relevance in Troy Davis's case is the question of the reliability
of the witness testimony used by the state to send him to death row. The problem
of unreliable witness testimony as a source of error in capital cases has long
been recognized. For example, a major study published in 1987 found that:
"By far the most frequent cause of erroneous convictions in our catalogue of
350 cases was error by witnesses; more than half of the cases (193) involved
errors of this sort. Sometimes such errors occurred in conjunction with other
errors, but often they were the primary or even the sole cause of the wrongful
conviction. In one-third of the cases (117), the erroneous witness testimony was
in fact perjured."(12)
In addition, "clear injustices perpetrated by the police compose nearly a
quarter of the errors" identified in this study. The majority of the error
attributable to the police came in the form of coerced statements, with the
remainder accounted for by negligence and over-zealous police work. Such
misconduct was a major contributor to the wrongful conviction of four Illinois
death row inmates, who were pardoned by the state governor in 2003 on the basis
that their confessions had been tortured out of them by the police.(13) The
final report of the New Jersey Death Penalty Study Commission, released on 2
January 2007, noted the fallibility of eyewitness testimony in reaching the
conclusion that "the penological interest in executing a small number of persons
guilty of murder is not sufficiently compelling to justify the risk of making an
irreversible mistake". For these and other reasons, the Commission has
recommended abolition of the death penalty in New Jersey.(14)
The problem of unreliable witness testimony, some of it exacerbated or caused by
police misconduct, has been illustrated in a number of the other cases of those
released since 1976 from death rows in the USA on the grounds of innocence. For
example:
In addition, a number of prisoners have been executed in the USA since 1977 despite serious doubts about their guilt. In some of these cases, the doubts centred on the reliability of witness testimony. For example:
Amnesty International has little
doubt that sooner or later it will be shown that the USA has executed at least
one person since 1976 for a crime he or she did not commit. Such cases are, of
course, hard to prove, especially before abolition. The state will tend to
resist attempts to uncover the execution of an innocent person, and in any
event, once a person has been put to death, the scarce resources of the legal
and abolitionist communities will generally be directed toward trying to stop
future executions.(20) One such looming execution is that of Troy Davis.
Deadly mix: over-zealous police & death-qualified jury?
You've either got to believe
that Troy Davis did all of this stuff or that Sylvester Coles did.
Prosecution at the trial of Troy Davis
On 28 August 1991 Troy Davis was
convicted by a jury of the murder of a police officer, 27-year-old Mark Allen
McPhail, who had been shot in the car park of a Burger King fast food restaurant
in Savannah, a city on the Georgia/South Carolina border, in the early hours of
19 August 1989. According to the autopsy, Officer McPhail had been hit by two
bullets, one in the face and one in the body. He had died as a result of blood
loss caused by the bullet that had hit him in the side of his chest and pierced
his lung.
Troy Davis was also convicted of two counts of aggravated assault for the
shooting of Michael Cooper that occurred earlier that night as Cooper was
leaving a party in the nearby Cloverdale district of Savannah, and an attack on
Larry Young, a homeless man, who was accosted and struck across the face with a
pistol immediately before Officer McPhail was shot. A ballistics expert
testified at the trial that the .38 calibre bullet that killed Officer McPhail
could possibly have been fired from the same gun that wounded Michael Cooper,
although he admitted that he had "some doubt" about this. He was "confident"
that .38 calibre shell casings found at the Cloverdale party matched one
allegedly found by a homeless man near the Burger King restaurant. The homeless
man did not testify at the trial.
The Georgia Supreme Court would later summarize the evidence from the trial as
follows:
"At midnight, on August 18, 1989, the victim, a police officer, reported for
work as a security guard at the Greyhound Bus Station in Savannah, adjacent to a
fast food restaurant. As the restaurant was closing, a fight broke out in which
Davis struck a man with a pistol. The victim, wearing his police uniform --
including badge, shoulder patches, gun belt, .30 revolver, and night stick --
ran to the scene of the disturbance. Davis fled. When the victim ordered him to
halt, Davis turned around and shot the victim. The victim fell to the ground.
Davis, smiling, walked up to the stricken officer and shot him several more
times. The officer's gun was still in his holster...
The next afternoon, Davis told a friend that he had been involved in an argument
at the restaurant the previous evening and struck someone with a gun. He told
the friend that when a police officer ran up, Davis shot him and that he went to
the officer and 'finished the job' because he knew the officer got a good look
at his face when he shot him the first time. After his arrest, Davis told a
cellmate a similar story".(21)
At the trial, Troy Davis denied having shot Michael Cooper at the Cloverdale
party, claiming that the first time he had ever seen Cooper was in the
courtroom. He admitted that he had been at the scene of the shooting outside the
Burger King, but claimed that he had neither assaulted Larry Young nor shot
Officer McPhail.
Troy Davis further denied having told anyone that he had killed Officer McPhail.
In September and October 1989, Kevin McQueen was detained in the same jail as
Troy Davis. McQueen told the police that during this time Troy Davis had
confessed to shooting Officer McPhail. McQueen testified to this effect at the
trial. Another witness, Jeffrey Sapp, also testified that Troy Davis had told
him that he had shot the officer, but that it had been in self-defence.
The state presented 15 witnesses to testify as to Troy Davis' guilt. One of them
was Sylvester "Red" Coles. At the trial, Sylvester Coles admitted that he had
been carrying a .38 calibre silver chrome handgun, the same calibre used in the
shooting, half an hour before Officer McPhail was shot. He said that he had
discarded the gun before the incident, and that he had not seen the gun again.
Coles had gone to the police with a lawyer soon after the shooting and made a
statement exonerating himself and implicating Troy Davis as the gunman. At the
trial, Troy Davis' defence lawyers argued:
"[F]rom that point on, the entire focus of this investigation was not in
deciding and finding the truth of this case as to who actually committed these
crimes that the defendant is now on trial for, but it was to find evidence to
convict the defendant of these crimes... They bought Mr Coles' story hook, line
and sinker. They never considered Mr Coles to be a suspect... And they went out
into this community, and they rounded up witnesses everywhere they could find
them, and they paraded them in here... But what about the quality, the
credibility of those witnesses?
As already noted, studies of why wrongful convictions in capital cases occur
point to a number of contributory factors, including police error or misconduct.
A review of this issue published in 1996 pointed out the following:
"We often talk of a miscarriage of justice as an error at trial, but that's a
mistake. The error occurs much earlier, in the investigation of a crime, when
the police identify the wrong person as the criminal. If they gather enough
evidence against this innocent suspect, the error will ripen into a criminal
charge; if that charge survives the formal and informal processes of pre-trial
screening, it will go to trial and a jury may confirm the mistake by a wrongful
conviction...
For the most part, the pressure to solve homicides produces the intended
results... But that same pressure can also produce mistakes. If the murder
cannot be readily solved, the police may be tempted to cut corners, to jump to
conclusions, and -- if they believe they have the killer -- perhaps to
manufacture evidence to clinch the case. The danger that the investigators will
go too far is magnified to the extent that the killing is brutal and horrifying,
and to the extent that it attracts public attention -- factors which also
increase the likelihood that the murder will be treated as a capital case". (22)
This case involves the murder of a police officer, a crime which undoubtedly
heightens emotions -- among the authorities seeking to bring the perpetrator to
justice, as well as within the community and the media.(23) Seventy-one of the
84 prospective jurors questioned during jury selection for Troy Davis' trial
indicated that they had heard about the murder from pre-trial publicity and/or
had discussed the case with other people. Indeed, 32 of these individuals were
rejected during jury selection on the grounds of their bias or prejudice.
Nevertheless, only one of the jurors from the pool, who had been living outside
of Savannah at the time, said that he had not known anything about the case.
Troy Davis' lawyers sought a change of venue for the trial away from Chatham
County where the crime occurred. This motion was denied by the trial court.
When denying relief for death row inmates, it is common for an appeal court or
an executive clemency authority to point to the deference to be afforded to the
jury's verdict in the original trial. Thus, in addition to the specific concern
that the impartiality of Troy Davis's trial may have been tainted by pre-trial
publicity on the case, it is worth pausing to consider the more general question
of who sits on the jury in a US capital trial.
In a state (as opposed to federal) capital trial, 12 citizens from the county in
which the trial is held (the county where the crime is committed unless a change
of venue is granted) are selected to sit as a "death qualified" jury. At jury
selection, the defence and prosecution will question the prospective jurors and
have the right to exclude certain people, either for a stated reason (for cause)
or without giving a reason (a peremptory challenge). Those citizens who would be
"irrevocably committed" to vote against the death penalty can be excluded for
cause by the prosecution, under the 1968 US Supreme Court ruling in
Witherspoon v. Illinois.(24) In 1985, in Wainwright v. Witt, the
Supreme Court relaxed the Witherspoon standard, thereby expanding the
class of potential jurors who could be dismissed for cause during jury
selection.(25) Under the Witt standard, a juror can be dismissed for
cause if his or her feelings about the death penalty would "prevent or
substantially impair the performance of his duties as a juror in accordance with
his instructions and his oath".
In 1998, the United Nations Special Rapporteur on extrajudicial, summary or
arbitrary executions expressed concern that "while the jury system was intended
to represent the community as a whole, the community can hardly be represented
when those who oppose the death penalty or have reservations about it seem to be
systematically excluded from sitting as jurors".(26) The problem goes beyond
this, however. There is evidence that a "death-qualified" jury is more
conviction-prone than its non-death-qualified counterpart. This raises special
concerns given the irrevocability of the death penalty.
In 1986, the US Supreme Court acknowledged evidence from research that the
"death qualification" of juries "produces juries somewhat more
'conviction-prone' than 'non-death-qualified' juries".(27) The Court had been
presented with 15 published studies each finding that death-qualified jurors
were more conviction-prone than excludable jurors. Three Justices referred to
this "overwhelming evidence that death-qualified juries are substantially more
likely to convict or to convict on more serious charges than juries on which
unalterable opponents of capital punishment are permitted to serve", adding that
"death-qualified jurors are, for example, more likely to believe that a
defendant's failure to testify is indicative of his guilt, more hostile to the
insanity defence, more mistrustful of defence attorneys, and less concerned
about the danger of erroneous convictions" (emphasis added).(28)
The three Justices went on to note that "the true impact of death qualification
on the fairness of a trial is likely even more devastating than the studies
show". They noted that the Witherspoon ruling, while limiting the state's
"ability to strike scrupled jurors for cause", had said nothing about the
prosecution's use of peremptory challenges to eliminate jurors who had less than
absolute opposition to imposing the death penalty. There was "no question", the
Justices added, "that peremptories have indeed been used to this end".
In 1998, a review of the existing research indicated that a "favourable attitude
towards the death penalty translates into a 44 per cent increase in the
probability of a juror favouring conviction".(29) Another expert review in 1998
concluded that:
"Death-qualification standards theoretically exist to ensure that capital
defendants will be tried by impartial jurors. The research, however,
demonstrates that there is a deep chasm between the law's intentions and the
result of death qualification in practice. Rather than ensuring impartiality,
the result can more accurately be envisioned as a stacked deck against the
defendant: death-qualified jurors, regardless of the standard, are more
conviction-prone, less concerned with due process, and they are more inclined to
believe the prosecution than are excludable jurors."(30)
In Troy Davis' trial in 1991, the jury rejected the defence argument that this
was a case of mistaken identity and that it was Sylvester Coles and not Davis
who had shot Officer McPhail. Instead, the jury accepted the prosecution's
theory and convicted Troy Davis on all counts. The trial moved into the
sentencing phase.
At the time of Troy Davis' trial in 1991, support for the death penalty in the
USA was far stronger than it is today. Death sentencing rates in the United
States were approaching their zenith. Some 268 people were sentenced to death in
the country in 1991. Death sentencing would peak in the next few years --
reaching its apex of 317 new death sentences in 1996 -- before beginning to drop
off. In 2004 and 2005, for example, there were 138 and 128 new death sentences
respectively -- each only about half of the 1991 total. Factors contributing to
this reduction in juries passing death sentences are believed to include the
number of wrongful convictions in capital cases, a diminished belief in the
deterrence value of the death penalty, and the availability of the sentence of
life imprisonment without the possibility of parole. In other words, a greater
public awareness of the possibility of irrevocable mistakes, coupled with
increased confidence that public security can be ensured by locking up
defendants for life rather than killing them, has led to a greater reluctance
among capital jurors to pass death sentences.(31)
At the time of Troy Davis's trial, jurors in Georgia did not have the option of
life imprisonment without parole as an alternative to the death penalty.(32) In
addition, by that time there had been "only" 150 executions carried out across
the USA since executions resumed in 1977. There have been more than 900
executions since his trial. Indeed, in the late 1980s, it was being suggested
that the average capital juror in the USA "may well not believe -- at the time
he or she votes for sentence -- that a death sentence is likely to ever be
carried out. Indeed, that juror may well believe that a death sentence may
result merely in a longer prison term while the protracted appellate process
follows its course".(33) In 1986, Georgia Supreme Court Justice Charles Weltner
said: "Everybody believes that a person sentenced to life for murder will be
walking the streets in seven years".(34)
Sixty-five per cent of all executions carried out in the USA between 1 January
1977 and 1 January 2007 occurred in the decade from 1995 to 2004. This period
was accompanied by numerous revelations about the inequities inherent in the use
of capital punishment. By the time of Troy Davis's trial in 1991, for example,
fewer than 40 people had been released from death rows since 1977 on the grounds
of innocence. In the years since, more than 70 such cases have been uncovered,
with the attendant publicity increasing as the total reached and surpassed 100.
At the sentencing phase of his trial, Troy Davis maintained his innocence and
asked the jury to spare his life. His trial lawyers urged the jurors to consider
any "little nagging lingering doubts" that they may have in their minds and not
to pass a death sentence. Their appeals fell on deaf ears. On 30 August 1991,
the jury backed the prosecution and sentenced Troy Davis to death for the murder
of Officer Mark McPhail.
With the current state of public knowledge about the risk of errors in capital
cases, about the repeated instances of prosecutorial misconduct and inadequate
legal representation, and about the unreliability of certain witness testimony,
and given the alternative of life imprisonment without parole, would a jury
today -- presented with the evidence from the 1991 trial -- sentence Troy Davis
to death?
The state's evidence is not what it was 15 years ago, however. Therefore another
question must also be asked. If the jurors from the original trial were
presented with the evidence as it stands today, would they still support a death
sentence?
The witnesses -- recanted and new testimony
[T]he only remnants of the
State's case against Troy Davis is the dubious testimony of Red Coles and Steven
Sanders' questionable courtroom identification of Mr Davis.
Federal appeal brief for Troy Davis, 2005
There was no physical evidence
against Troy Davis and the weapon used in the crime was never found. The case
against him consisted entirely of witness testimony which contained
inconsistencies even at the time of the trial. In state habeas corpus
proceedings in 1996, one of his trial lawyers recalled that there had been "a
number of witnesses who either saw the actual shooting or saw the incident
involving Mr Young, Larry Young. And there were a lot of inconsistencies about
the colour of shorts, whether someone had a hat on or didn't have a hat on,
about size, about skin colouration."(35)
Nevertheless, the State of Georgia maintains that the conviction and death
sentence against Troy Davis are reliable. For example, a legal brief it filed in
federal court in 2005 in the case stated: "Red Coles identified petitioner as
the perpetrator of Officer McPhail's murder, as did numerous other eyewitnesses,
including Harriet Murray, Dorothy Ferrell, Daryl Collins, Antoine Williams,
Steven Sanders and Larry Young."(36) However, in affidavits signed over the
years since the trial, all but three of the witnesses whose testimony secured
the conviction and death sentence against Troy Davis have recanted or
contradicted their trial testimony. At oral arguments in September 2005 in the
US Court of Appeals for the 11th Circuit (see below) a lawyer from the Georgia
Attorney General's office dismissed the recantations, describing them as "rank
hearsay." (37) Yet the state is relying on the testimony from those same
individuals to support its bid to kill Troy Davis.
All but three of the state's non-police witnesses from the trial have recanted
their testimony. One of the three who has not recanted his testimony is
Sylvester Coles -- the principle alternative suspect, according to the defence
at the trial, and against whom there is new evidence implicating him as the
gunman. Another is Steven Sanders. He was one of a number of members of the US
Air Force who were in a van at the drive-in section of the Burger King
restaurant at the time of the crime. In a statement given to police shortly
after the shooting, Stephen Sanders said that he had seen a "black male wearing
a white hat and white shirt, black shorts" shoot the officer and then run off
with another person who Sanders thought was wearing a "black outfit". He said
that he "wouldn't recognize them again except for their clothes". However, for
the first time, two years later, at the trial, Stephen Sanders identified Troy
Davis as the gunman. At the time of writing, Troy Davis' lawyers had not been
able to contact Steven Sanders. Two of his Air Force colleagues, Daniel Kinsman
and Robert Grizzard, who were with Sanders at the time of the crime, have signed
affidavits standing by their statements given to the police that they could not
identify the gunman (see below). Robert Grizzard has said that, contrary to what
he mistakenly testified at the trial, he could not then and still could not
recall what the gunman was wearing. For his part, Daniel Kinsman has testified
that he remains convinced that the gunman was firing the gun with his left hand.
Troy Davis is right-handed.
A third witness who has contradicted her trial testimony is Harriet Murray.
Murray, who was also homeless at the time, was with her friend Larry Young on
the night of the crime. Her various statements given to the police, at the
preliminary hearing, at the trial, and in an affidavit signed on 14 October 2002
are inconsistent. According to Troy Davis's federal appeals, Harriet Murray's
police statement and her testimony at the preliminary hearing appear to
implicate Sylvester Coles. At the subsequent trial she identified Troy Davis as
the gunman, but was not asked and did not say whether the man who followed Larry
Young, harassed him and attacked him was the same person who shot the police
officer. In her 2002 affidavit, she did not identify Troy Davis as the shooter.
This was consistent with a statement she gave to police after the crime, in
which she simply stated that she had witnessed "a black man" accost Larry Young
and hit him on side of the face with his gun. She said she saw the same man
subsequently shoot the police officer. She said that she had also seen "two
other black men" nearby but they were "not right up with Larry and the other
man".
Troy Davis' lawyers have argued in appeal briefs filed in federal court that the
description contained in Harriet Murray's 2002 affidavit, her 1989 police
statement and 1989 preliminary hearing testimony identify Sylvester Coles as the
person who shot Officer McPhail in four respects. Firstly, Murray describes the
gunman as the man who argued with Larry Young and who had tried "to start
something with Larry". The lawyers state that at the trial, Sylvester Coles
admitted to being the only person who had been "picking a fight" with Young.
Secondly, in her affidavit, Harriet Murray recalls that the gunman shouted to
Young, "You don't know me. I'll shoot you." The lawyers stated that at the
trial, Larry Young testified that the person with whom he argued shouted
something like "You don't know me, I've got a gun, I'll shoot you". They state
that neither Troy Davis nor Darrell Collins (see below) had said anything to
Young. Thirdly, Harriet Murray's affidavit recalls that the man who argued with
Young had followed the latter up Oglethorpe Avenue.(38) The lawyers state that
at the trial, Larry Young and Sylvester Coles had testified that it had been
Coles who had followed Young up Oglethorpe Avenue. Finally, the affidavit states
that the "two other black men" were walking through the bank drive-in section
and were not near Larry Young when he was assaulted. The lawyers state that this
was consistent with what Coles, Young and Davis testified at trial.
The witnesses in Troy Davis' case fall into a number of categories. There are
"informants", who claimed that Troy Davis told them that he had shot Officer
McPhail. There are "eyewitnesses", who were present at or near the scene of the
crime. There are "party witnesses" who were present at the Cloverdale party and
were used to link Davis to the shooting of Michael Cooper that occurred there
prior to the killing of the police officer. Finally, there are a number of
people who were not heard at trial, including those whose affidavit statements
implicate Sylvester Coles as the gunman.
The witnesses are listed below by category and in the chronological order in
which their affidavits were signed.(39)
1. 'Informant' testimony
The Commission on Capital Punishment, set up by Governor Ryan of Illinois after
he imposed a moratorium on executions in 2000, examined the question of
testimony provided by in-custody informants. The Commission's April 2002 report
concluded that, even with stringent safeguards on the use of such evidence, "the
potential for testimony of questionable reliability remains high, and imposing
the death penalty in such cases appears ill-advised". The Commission points out
that "a number of the Illinois cases in which inmates were ultimately released
from death row involved proffers of testimony from in-custody informants, and
much of which was of dubious veracity." It recommended that prosecutors and
defence lawyers involved in capital cases should receive periodic training on
"the risks of false testimony by in-custody informants".
In 1996, a federal judge on the US Court of Appeals for the Ninth Circuit
offered the following advice to prosecutors: "The most dangerous informer of all
is the jailhouse snitch who claims another prisoner has confessed to him... The
precautionary rule of thumb with a jailhouse confession presented by another
inmate is that it is false until the contrary is proved beyond a reasonable
doubt".(40)
Kevin McQueen
Affidavit, 5 December 1996
In September and October 1989, Kevin McQueen was detained in the same jail as
Troy Davis. McQueen told the police that during this time Troy Davis had
confessed to shooting Officer Mark McPhail. In his 1996 affidavit, he retracted
this statement, saying that he had given it because he wanted to "get even" with
Davis following a confrontation he said the two of them had allegedly had.
"The truth is that Troy never confessed to me or talked to me about the
shooting of the police officer. I made up the confession from information I had
heard on T.V. and from other inmates about the crimes. Troy did not tell me any
of this... I have now realized what I did to Troy so I have decided to tell the
truth... I need to set the record straight".
Monty Holmes
Affidavit, 17 August 2001
Monty Holmes testified against Troy Davis in a preliminary pre-trial hearing,
but did not testify at the trial, as he explains in an affidavit signed in
August 2001:
"In August of 1989, the police came to talk to me about the officer who was
killed in Savannah. They wanted to know if Troy Davis was involved in the
shooting and whether he had said anything to me about being involved with the
shooting... By the way the police were talking, I thought I was going to be in
trouble. I told them I didn't know anything about who shot the officer, but they
kept questioning me. I was real young at that time and here they were
questioning me about the murder of a police officer like I was in trouble or
something. I was scared... [I]t seemed like they wouldn't stop questioning me
until I told them what they wanted to hear. So I did. I signed a statement
saying that Troy told me that he shot the cop."
When I had to go to court that first time, I felt like I had to say what was
in that statement or I'd be in trouble, so that's what I did. When it came to
the trial though, I didn't want to go because I knew that the truth was that
Troy never told me anything about shooting [the police officer]. I heard the
police were coming by to give me a subpoena for trial. I dodged the subpoena but
they still left it with my mother. I still didn't feel like I could walk in a
court and say those things so I didn't go to the trial".
Monty Holmes' pre-trial testimony was admitted at the trial without
cross-examination possible due to his absence. Article 14.3(e) of the
International Covenant on Civil and Political Rights provides that any criminal
defendant must be allowed, "in full equality", to be able "to examine, or have
examined, the witnesses against him and to obtain the attendance and examination
of witnesses on his behalf under the same conditions as witnesses against him".
While Monty Holmes knowingly avoided testifying at the trial, if his pre-trial
testimony and his absence from the trial were influenced by coercive tactics
allegedly employed by the police, the state played a role in undermining the
right of Troy Davis to a fair trial.
Jeffrey Sapp
Affidavit, 9 February 2003
Jeffrey Sapp testified that Troy Davis had told him that he had shot the officer
in self-defence. In his affidavit, he stated:
"I remember when the officer got shot down at Burger King... The police came
and talked to me and put a lot of pressure on me to say, 'Troy said this' or
'Troy said that'. They wanted me to tell them that Troy confessed to me about
killing that officer. The thing is, Troy never told me anything about it. I got
tired of them harassing me, and they made it clear that the only way they would
leave me alone is if I told them what they wanted to hear. I told them that Troy
told me he did it, but it wasn't true. Troy never said that or anything like it.
When it came time for Troy's trial, the police made it clear to me that I needed
to stick to my original statement; that is, what they wanted me to say. I didn't
want to have any more problems with the cops, so I testified against Troy".
2. 'Eyewitness' testimony
Dorothy Ferrell
Affidavit, 29 November 2000
At the trial, Dorothy Ferrell, who was staying at a hotel near the Burger King
at the time of the crime, identified Troy Davis as the person who had shot
Officer McPhail, emphasising "I'm real sure, that that is him and, you know,
it's not a mistaken identity".
After the guilt/innocence phase of the trial had ended, the wife of Troy Davis'
defence lawyer received a telephone call from a woman who identified herself as
Dorothy Ferrell, and stated that she had lied on the witness stand. The
prosecution then revealed that Dorothy Ferrell had written a letter to District
Attorney Spencer Lawton requesting "a favour" and his "help" with her own
difficulties with the law. She was on parole at the time. She wrote in the
letter: "Mr Lawton if you would please help me, I promise you, you won't
be making a mistake" [emphasis in original].
After this revelation, Dorothy Ferrell was recalled to the witness stand,
outside of the presence of the jury. She denied having made the telephone call,
but admitted to having written the letter. The judge then offered the defence
the opportunity to cross-examine Dorothy Ferrell in the presence of the jury,
but they did not do so, instead calling for a mistrial on the grounds that the
prosecution had withheld information from the defence. The trial judge denied
their motion for a new trial.
In her affidavit signed in November 2000, Dorothy Ferrell recalled that she had
been staying in a hotel opposite the Burger King restaurant on the night of the
shooting. She said that she heard a woman scream and gunshots. In her affidavit,
she recalls seeing "more than two guys running away", but states that she did
not see who the gunman was. After the crime, she was asked to go down to the
police station, where she was made to wait until she gave a statement. The
affidavit continues:
"I was real tired because it was the middle of the night and I was pregnant
too... I was scared that if I didn't do what the police wanted me to do, then
they would try to lock me up again. I was on parole at the time and I had just
gotten home from being locked up earlier that year.
When the police were talking to me, it was like they wanted me to say I saw
the shooting and to sign a statement. I wanted to be able to leave and so I just
said what they wanted me to say. I thought that would be the end of it, but it
turned out not to be the end."
Some time later, a police detective visited Dorothy Ferrell and showed her a
photograph of Troy Davis, and told her that other witnesses had identified him
as the gunman:
"From the way the officer was talking, he gave me the impression that I
should say that Troy Davis was the one who shot the officer like the other
witness [sic] had... I felt like I was just following the rest of the witnesses.
I also felt like I had to cooperate with the officer because of my being on
parole...I told the detective that Troy Davis was the shooter, even though the
truth was that I didn't see who shot the officer."
In her affidavit, Dorothy Ferrell recalls her fear that if she did not repeat
her statement at the trial, she would be charged with perjury and "sent back to
jail". She says that she spoke to two lawyers who said that she could be so
charged and could be sentenced to up to 10 years in prison.
"I had four children at that time, and I was taking care of them myself. I
couldn't go back to jail. I felt like I didn't have any choice but to get up
there and testify to what I said in my earlier statements. So that's what I did."
On the question of the telephone call made to Troy Davis' defence counsel at the
time of the trial, Dorothy Ferrell's affidavit adds that:
"I didn't make that call to the house of the attorney but my friend made the
call after she and I had talked. I told my friend about how I had testified to
things that weren't the truth and I was feeling bad about it. That's why she
made the call."
Darrell "D.D." Collins
Affidavit, 11 July 2002
Darrell Collins was a friend of Troy Davis who was with him on the night of the
crime. At the time, he was 16 years old. In his affidavit he said that the day
after the shooting, 15 or 20 police officers came to his house, "a lot of them
had their guns drawn". They took him in for questioning, and the affidavit
continues:
"When I got to the barracks, the police put me in a small room and some
detectives came in and started yelling at me, telling me that I knew that Troy
Davis...killed that officer by the Burger King. I told them that... I didn't see
Troy do nothing. They got real mad when I said this and started getting in my
face. They were telling me that I was an accessory to murder and that I would
pay like Troy was gonna pay if I didn't tell them what they wanted to hear. They
told me that I would go to jail for a long time and I would be lucky if I ever
got out, especially because a police officer got killed... I didn't want to go
to jail because I didn't do nothing wrong. I was only sixteen and was so scared
of going to jail. They kept saying that...[Troy] had messed with that man up at
Burger King and killed that officer. I told them that it was Red and not Troy
who was messing with that man, but they didn't want to hear that...
After a couple of hours of the detectives yelling at me and threatening me, I
finally broke down and told them what they wanted to hear. They would tell me
things that they said had happened and I would repeat whatever they said."
Darrell Collins said that he signed a typed statement without reading it, and
was then allowed to go home. According to his affidavit, he was questioned again
about a week later by the police who gave him another typed statement to sign.
He said he again signed the statement without reading it. The affidavit
continues:
"I testified against Troy at his trial. I remember that I told the jury that
Troy hit the man that Red was arguing with. That is not true. I never saw Troy
do anything to the man. I said this at the trial because I was still scared that
the police would throw me in jail for being an accessory to murder if I told the
truth about what happened...
It is time that I told the truth about what happened that night, and what is
written here is the truth. I am not proud for lying at Troy's trial, but the
police had me so messed up that I felt that's all I could do or else I would go
to jail."
Larry Young
Affidavit, 11 October 2002
Larry Young was the homeless man who was accosted and then struck in the face,
and whose shouts drew the attention of Officer McPhail. At the trial, he
implicated Troy Davis as the man who had assaulted him, but only identifying him
by his clothing. His affidavit, signed in 2002, offers further evidence of a
coercive police investigation into the murder of their fellow officer, and
states that he "couldn't honestly remember what anyone looked like or what
different people were wearing".
"After I was assaulted that night, I went into the bathroom at the bus
station and tried to wash the blood off my face. I had a big gash on my face and
there was blood everywhere. I was in a lot of pain. When I left the bathroom,
some police officers grabbed me and threw me down on the hood of the police car
and handcuffed me. They treated me like a criminal, like I was the one who
killed the officer. Even though I was homeless at that time and drinking and
drugging, I didn't have nothing to do with killing the officer. I told the
officers that, but they just locked me in the back of the police car for the
next hour or so. I kept yelling that I needed to be treated but they didn't pay
me no mind. They then took me to the police station and interrogated me for
three hours. I kept asking them to treat my head, but they wouldn't.
They kept asking me what had happened at the bus station, and I kept telling
them that I didn't know. Everything happened so fast down there. I couldn't
honestly remember what anyone looked like or what different people were wearing.
Plus, I had been drinking that day, so I just couldn't tell who did what. The
cops didn't want to hear that and kept pressing me to give them answers. They
made it clear that we weren't leaving until I told them what they wanted to
hear. They suggested answers and I would give them what they wanted. They put
typed papers in my face and told me to sign them. I did sign them without
reading them.
I never have been able to make sense of what happened that night. It's as
much a blur now as it was then."
Antoine Williams
Affidavit, 12 October 2002
Antoine Williams, an employee of Burger King, had just driven into the
restaurant's car park at the time the shooting occurred. At the trial, he
identified Troy Davis as the person who had shot Officer McPhail. In 2002 he
stated that this was false, and that he had signed a statement for the police
which he could not and did not read.
"I couldn't really tell what was going on because I had the darkest shades of
tint you could possibly have on my windows of my car. As soon as I heard the
shot and saw the officer go down, I ducked down under the dash of my car. I was
scared for my life and I didn't want to get shot myself...
Later that night, some cops asked me what had happened. I told them what is
written here [in the affidavit]. They asked me to describe the shooter
and what he looked like and what he was wearing. I kept telling them that I
didn't know. It was dark, my windows were tinted, and I was scared. It all
happened so fast. Even today, I know that I could not honestly identify with any
certainty who shot the officer that night. I couldn't then either. After the
officers talked to me, they gave me a statement and told me to sign it. I signed
it. I did not read it because I cannot read.(41)
At Troy Davis' trial, I identified him as the person who shot the officer.
Even when I said that, I was totally unsure whether he was the person who shot
the officer. I felt pressured to point at him because he was the one who was
sitting in the courtroom. I have no idea what the person who shot the officer
looks like."
Daniel Kinsman
Affidavit, 15 October 2002
Daniel Kinsman was with other Air Force personnel in a van in the Burger King
car park at the time of the crime. He was interviewed by police. He describes
himself as having been "relatively close to the scene" of the shooting, but
remains confident that he would "not have been able to make any identification
of the shooter due to the poor lighting and the chaotic nature of the scene". In
the affidavit, Daniel Kinsman recalls "two things that stand out to this day
about what I witnessed at the Burger King". First, as he told the police, "there
was and is no doubt in my mind that the person who shot the officer had the gun
in and was shooting with his left hand." Second, the gun had a "shiny finish...
not dull in any sense of the term." Troy Davis is right-handed.
Robert Grizzard
Affidavit, 23 March 2003
In 1989, Robert Grizzard was a Sergeant in the US Air Force, and was in Savannah
for a training exercise. He was in a van in the Burger King car park at the time
of the shooting of Officer McPhail. In his affidavit, Robert Grizzard stated:
"I have reviewed the transcript of my testimony from the trial of Troy
Davis... During my testimony I said that the person who shot the officer was
wearing a light coloured shirt. The truth is that I don't recall now and I
didn't recall then what the shooter was wearing, as I said in my initial
statement [to the police]. My testimony to the contrary was an honest
mistake on my part... As I said in my statement given on that night, I do not
and did not remember what the shooter was wearing."
3. 'Party' testimony
In the hours before the shooting of Officer McPhail there was a party in the
nearby neighbourhood of Cloverdale, Savannah. As Michael Cooper and a group of
friends were leaving the party in their car, shots were fired, wounding Cooper.
Troy Davis was convicted of aggravated assault for the shooting.
At the trial, Darrell Collins repudiated his initial statement to the police
that Troy Davis had shot at the car. He testified that he had not seen Troy
Davis with a gun on the night of the shooting. Michael Cooper testified that he
had not seen who shot him. In a 2002 affidavit (below), he repudiates a
statement he allegedly gave to police implicating Troy Davis. Benjamin Gordon
testified that he had not seen who shot Cooper, contrary to a statement he gave
to police after the crime. In a 2003 affidavit (below) he states that the
statement he gave to police (when he was 15) had been coerced. Craig Young
testified at trial that a statement he gave to police in which he stated that
Troy Davis had threatened some guests at the Cloverdale party and that Davis had
told him that he had fought with another guest were false and coerced by the
police.
In a 1995 affidavit, April Hester (below) stated that Sylvester Coles was at the
Cloverdale party.
Joseph Blige
Affidavit, 1 December 1995
Joseph Blige, who was 15 years old at the time of the crime, went to the
Cloverdale party. He was in the car that was shot at, and in which Michael
Cooper was wounded. His affidavit stated that neither he nor anyone he was with
at the party "had any words or any problem with Troy Davis".
"As we drove off Michael yelled something out the window and shooting
started. Our car was hit at least six times. I heard more than six shots. I head
more than one weapon being fired. At least one of the weapons being fired was an
automatic. It could not have been a revolver because the shots came too fast.
We drove Michael to the hospital. The police talked to us there in the
hospital parking lot. A sergeant picked up a bullet from behind the panelling in
the door of the car. There was [sic] different size bullet holes in the
car. The sergeant saw all the bullet holes. He saw the blood in the car. I do
not know what he did with the bullet he picked up. The police did not want to
keep the car for evidence. We left in the car.
The next morning the police got me from Yamacraw and asked me lots of
questions about the shooting of the police officer that happened at the bus
station. They even tried telling me they knew I shot the officer."
Michael Cooper
Affidavit, 10 February 2002
Michael Cooper was shot and wounded on leaving the Cloverdale party. Troy Davis
was convicted of the shooting at his trial for the murder of Officer McPhail
which happened later the same night. In his affidavit, Michael Cooper states
that:
"I have had a chance to review a statement which I supposedly gave to police
officers on June 25, 1991. I remember that they asked a lot of questions and
typed up a statement which they told me to sign. I did not read the statement
before I signed. In fact, I have not seen it before today. In that statement,
the police said that I told them that Mark [Wilds] told me that Troy shot me. I
never told the police that. Mark never said that to me. What is written in that
statement is a lie. I do not know who shot me that night. I do not know it now,
and I did not know it then."
Benjamin Gordon
Affidavit, 10 February 2003
Benjamin Gordon, who was 15 years old at the time of the crime, had been at the
party in Cloverdale and was leaving in the car with Michael Cooper when the
latter was shot and wounded. In his affidavit, he states that "the shooting came
from the shadows next to the street", and that "I never saw who did the
shooting". The affidavit continues:
"Later that night, police officers came and dragged me from my house in
Yamacraw. There were police officers everywhere after the police officer was
killed and it seemed like they were taking everyone in Yamacraw to the police
barracks for questioning. I was handcuffed and they put a nightstick under my
neck. I had just turned sixteen and was scared as hell. The police officers took
me to the barracks and put me in a small room. Over the next couple of hours,
three or so officers questioned me -- at first, they called me a motherfucker
and told me that I had shot the officer. They told me that I was going to the
electric chair. They got in my face and yelled at me a lot. The cops then told
me that I did the shooting over in Cloverdale. I just kept telling them that I
didn't do anything, but they weren't hearing that. After four or five hours,
they told me to sign some papers. I just wanted to get the hell out of there. I
didn't read what they told me to sign and they didn't ask me to.
When it came time for trial, I was in jail, and the sheriff's office
transported me to the courthouse. A person in a suit told me to say to the court
what I had told the police. I believe that person was with the District
Attorney's office.
No one working on Troy's case even came to speak to me before trial.
If they would have, I would have talked to them and told them what is contained
in this affidavit."
4. Testimony implicating Sylvester Coles
Affidavits have been signed by a number of people who knew Sylvester Coles or
saw him at or after the shooting.
Joseph Washington
Affidavit, 6 December 1996
Joseph Washington, who was 16 years old at the time of the crime, was at the
party in Cloverdale. In his affidavit, he has stated that:
"Very soon after the shooting at the Cloverdale party I went to Fahm street
right near the Burger King. This is where I saw Sylvester Coles -- I know him by
the name Red -- shoot the police officer. I am positive that it was Red who shot
the police officer... Red was wearing a white shirt with a Batman print on the
front of it.
This is the first time I have been asked about the shirt Red was wearing. I
would have testified to this but I was not asked by the state or by Troy's
lawyers. At the time of the shooting and the trial I was very young. I did not
want to testify because I knew my testimony was going to be on television. I had
no idea that the shirt Red was wearing at that time was important because no one
ever asked me.
I was very nervous when I testified... I got confused by [the] questions."
Tonya Johnson
Affidavit, 6 December 1996
Tonya Johnson was living not far from the Burger King where Officer McPhail was
shot. In her affidavit, she stated that she heard the shots and saw:
"Sylvester Coles -- we all called him Red -- and a guy named Terry coming
down the street from the Burger King. When I saw Red and Terry they were both in
a panic and very nervous. Red and Terry each had a gun with them at that time.
Red asked me to hold the guns for him, which I refused to do. Red then took both
guns next door to an empty house and put them inside the screen door and shut
the door... I have known Red all of my life. He used to live next door to me...
For most of my life I have been scared to death of him. In fact, he threatened
me after this happened. He told me that he wanted to make sure that I did not
tell the police about the guns he hid in the screen door that morning. This is
why I did not testify about the guns at Troy's trial because I was afraid of
what Red would do to me if I did. I have not told anyone about this until now
because I was still scared... But I have decided that I must tell the truth."
Anthony Hargrove
Affidavit, 8 August 2001
"I know a guy named Red, from Savannah. His real name is Sylvester Coles.
I've known Red for years and we used to hang out together. Red once told me that
he shot a police officer and that a guy named Davis took the fall for it. He
told me this about a year or so after the officer was killed... We were smoking
weed and talking. Red told me that he'd had a close one once. I asked him what
he meant. Red told me he'd killed someone and another guy took the fall for it.
I asked Red who he killed. Red said he killed a policeman and a guy named Troy
took the fall for it...I wasn't real surprised to hear that Red killed an
officer... Red was known to always carry a gun and he would use it."
Gary Hargrove
Affidavit, 17 August 2001
Gary Hargrove did not testify at the trial. His affidavit stated that he was at
the Burger King at the time of the crime. In the affidavit, he recalled:
"The guy who was running away looked like Troy Davis but I can't say for sure
that it was him because he had his back to me as he was running away. They guy
who was still standing there after the first shot was fired and when I heard the
second shot was a guy whose nickname is Red... I am sure that Red was facing in
the officer's direction when I heard the shooting. The guy who was running away
had his back to where the officer was as the shots were going off.
I was never talked to by the police or any attorneys or investigators
representing Troy Davis before his trial. I didn't go up to talk to the police
that night because I was on parole at the time and was out past my curfew so I
didn't want my parole officer to find out about that."
Shirley Riley
Affidavit, 18 August 2001
Shirley Riley was a friend of Sylvester Coles.
"People on the streets were talking about Sylvester Coles being involved with
killing the police officer so one day I asked him if he was involved...
Sylvester told me he did shoot the officer..."
Darold Taylor
Affidavit, 20 August 2001
"In the mid-90s, I met a guy named Red in Yamacraw Village...Red and I ended
up becoming drinking kind of friends over the years...I had heard from a lot of
people in Yamacraw Village about an officer getting shot and killed at a Burger
King back in 1989. Everybody who talked about that shooting in the Yamacraw area
said that Red did the shooting and Red killed the officer. I remember reading in
the paper once about how a guy named Troy Davis got sentenced to the electric
chair... One day when I was in the parking lot of Yamacraw drinking beers with
Red. I told him about how I'd heard that he was the one who killed the officer.
Red told me to stay out of his business. I asked him again if he killed the
officer and Red admitted to me that he was the one who killed the officer, but
then Red told me again to stay out of his business."
April Hester Hutchinson
Affidavit, 9 July 2002
April Hester Hutchinson (formerly April Hester), who was 18 years old at the
time, and her cousins had given the party in Cloverdale which preceded the
shooting of Officer McPhail and at which Michael Cooper had been shot. She had
previously signed an affidavit on 30 November 1995. In this earlier affidavit,
she recalled that Sylvester "Red" Coles had been at the party. After the
shooting at the party the police had arrived. While they were there, the news
came through on their radios that an officer had been shot. The police left.
April and her cousins drove to Yamacraw "to find out what happened": "I saw Red
walking fast up the street at Yamacraw. He acted very nervous and upset."
In her subsequent July 2002 affidavit, she stated that her earlier affidavit had
been correct but had not contained everything.
"As I walked back to my house, I saw my cousin Tonya [Johnson] talking
to Red. I walked up to them. It was clear to me that Red was real nervous and
was sweating profusely. He was fidgeting with his hands and could not keep
still... Red turned to me and asked me if I would walk with him up to the Burger
King so 'they won't think that I had nothing to do with it'. That's exactly what
he said...
I told [the police] that I saw Red talking to my cousin Tonya and that
Red was real nervous. I did not tell them about what Red had said to me because
I was scared he would hurt me. I was thinking that if he did that to a police
officer, what would he do to me? I didn't want to die like that officer, so I
kept my mouth shut."
Anita Saddler
Affidavit, 10 July 2002
Anita Saddler was with Tonya Johnson (see above) on the night of the shooting.
"When I saw Red and Terry, they were jumpy and couldn't stand still. Their
eyes were shifting around and they were looking everywhere. They walked up to us
and Red asked us to go up to Burger King and see what happened. Like I said,
they were real nervous and fidgety. Red had a gun which was stuck into his
shorts. I saw the outline of his gun through his white shirt. I had seen him
with a gun many times before."....
Peggie Grant
Affidavit, 11 July 2002
Peggie Grant is the mother of April Hester Hutchinson. She says that on the
night of the shooting, she saw her daughter April with Red Coles, who was
wearing a white T-shirt. She had shouted across to her daughter because "I knew
Red from the neighbourhood and knew him to act crazy and violent, especially
when he was drinking. I didn't want April hanging out with him". The affidavit
recalls:
"A few hours later, April called me on the phone. She said she was back in
Cloverdale. April didn't sound right -- she was nervous and scared. I could tell
that by the sound of her voice. April told me she had been down at the old
police barracks and that the police had questioned her about a shooting in
Cloverdale and the police officer's shooting. She told me that she had had a
conversation with Red where he asked her to walk up with him to where the
officer was shot so that the police would think that he was with her and not
think he did anything. April also told me that after I had yelled at her, Red
had given her a mean look and told her not to say anything to anyone about what
he had said. She said she didn't know what to do and was scared about what Red
might do to her if she told anybody."
Caught in a trap: Federal appeals denied
The enactment of the 1996
Anti-terrorism and Effective Death Penalty Act and the lack of funding of PCDOs
have further jeopardized the implementation of the right to a fair trial as
provided for in the ICCPR and other international instruments.
UN Special Rapporteur, 1998(42)
Once a person is convicted, he
or she bears the burden of showing that the conviction or sentence was tainted
by error that requires a judicial remedy. It is an uphill task, and one that
faces many legal and technical hurdles.
In 1993, the Georgia Supreme Court affirmed Troy Davis' conviction and death
sentence. In 1994, Troy Davis filed a habeas corpus petition in state
court, claiming that he was the victim of miscarriage of justice and that the
wrong man had been convicted of the murder. The appeal claimed that witnesses
had been placed under improper pressure by police and law enforcement personnel.
After an evidentiary hearing, the state habeas court denied the petition
in September 1997. The court stated that the claim of coercive or suggestive law
enforcement techniques had been procedurally defaulted, that is, that it could
and should have been raised earlier. The court acknowledged that the failure of
the defence "to discover, admit or effectively argue" evidence undermining the
credibility of witness testimony at the trial "would appear to place this case
in the category of a case of 'mistaken identity'". However it ruled that the
jury decision should stand as such evidence had been presented at the trial:
"[M]any pieces of evidence supporting a finding that Coles was the shooter or
highlighting inconsistencies in the testimony of witnesses who identified Davis
as the shooter were indeed presented to the jury during Davis' trial. The jury,
in its rightful role as finder of fact during the trial, was responsible for
evaluating the credibility of the witnesses and determining whether the state
proved beyond a reasonable doubt that Davis shot and killed Officer McPhail.
This court...cannot supplant the role of the jury and find based on its own
review of the record that the jury should have concluded that the state did not
carry its burden at Davis' trial. The core purpose of the writ of habeas corpus
would not be served by such a presumptuous usurpation of the jury's deliberative
process. This court is limited to evaluating whether Davis' rights were properly
protected in the context of his jury trial."
The state court's denial of habeas corpus relief for Troy Davis was
affirmed in November 2000 by the Georgia Supreme Court. The case then moved into
the federal courts. Placed before them would be evidence that much of the
witness testimony from the trial had been recanted, as well as additional
testimony tending to support Troy Davis' claim that he did not shoot Officer
Mark McPhail. His federal habeas corpus petition was brought under a law
passed in 1996, the Anti-Terrorism and Effective Death Penalty Act (AEDPA).
President Bill Clinton signed the AEDPA into law on 24 April 1996. "I have long
sought to streamline federal appeals for convicted criminals sentenced to the
death penalty", he said at the signing; "For too long, and in too many cases,
endless death row appeals have stood in the way of justice being served."(43) He
added that "from now on, criminals sentenced to death for their vicious crimes
will no longer be able to use endless appeals to delay their sentences."(44)
The Act placed new, unprecedented restrictions on prisoners raising claims of
constitutional violations. It imposed severe time limits on the raising of
constitutional claims, restricted the federal courts' ability to review state
court decisions, placed limits on federal courts granting and conducting
evidentiary hearings, and prohibited "successive" appeals except in very narrow
circumstances. As one leading US lawyer has said:
"The provisions of the Anti-terrorism and Effective Death Penalty Act of 1996
restricting the power of federal courts to correct constitutional error in
criminal cases represent a decision that results are more important than
process, that finality is more important than fairness, and that proceeding with
executions is more important than determining whether convictions and sentences
were obtained fairly and reliably."(45)
Under the AEDPA, once Troy Davis' conviction and death sentence had been upheld
by the Georgia courts, the possibility of relief in the federal courts was
curtailed. Federal relief was only permissible if the decision of a state court
had "resulted in a decision that was contrary to, or involved in an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States". This deferential "reasonableness" standard
represented "a remarkable departure from the traditional role of federal
courts...to declare what the law is".(46)
Even without the AEDPA, the Supreme Court had already curtailed the ability of
death row inmates to obtain habeas corpus relief in the federal courts.
Fairness was being jeopardized in the name of finality. On the question of
innocence, the US Supreme Court set a high hurdle for a condemned inmate seeking
to have his or her conviction and death sentence overturned on such grounds. In
Herrera v. Collins in 1993, the Court said that even if, for the sake of
argument, "a truly persuasive post-trial demonstration of 'actual innocence'
would render a defendant's execution unconstitutional and warrant federal habeas
relief", the threshold to trigger such relief "would necessarily be
extraordinarily high because of the very disruptive effect that entertaining
such claims would have on the need for finality in capital cases and the
enormous burden that having to retry cases based on often stale evidence would
place on the States".(47)
Under the 1995 Supreme Court ruling Schlup v. Delo, a condemned prisoner
can obtain judicial review of otherwise barred claims if he or she produces
reliable new evidence of actual innocence not available at trial, which
demonstrates that it is more likely than not that with this new evidence no
reasonable juror would have voted to convict.(48) This opens the Schlup
"gateway". The Supreme Court emphasised that the Schlup rule would apply
only to the "extremely rare" cases in which there is a "substantial claim that
constitutional error has caused the conviction of an innocent person", adding
that the "quintessential miscarriage of justice is the execution of an innocent
person."
In support of the claim that the police had improperly pressured witnesses into
implicating Troy Davis as the gunman, the affidavits of Antoine Williams, Larry
Young, Darrell Collins and Monty Holmes (see above) were introduced for the
first time before federal District Court Judge John F. Nangle. The State of
Georgia argued that this claim had been procedurally defaulted and could
therefore not be considered by the federal judge. Judge Nangle agreed, and
continued that because he was satisfied that no constitutional error had
occurred, "the 'actual innocence' gateway [under Schlup] need not be
accessed" to overcome the procedural default:
"The Court finds that because the submitted affidavits are insufficient to raise
doubts as to the constitutionality of the result at trial, there is no danger of
a miscarriage of justice in declining to consider the claim."(49)
In his ruling in May 2004, Judge Nangle rejected other claims concerning such
issues as ineffective assistance of counsel, unfair jury selection,
prosecutorial misconduct, and the use of inflammatory evidence at the trial. His
ruling meant that Troy Davis would not receive a hearing on the new evidence
contained in the affidavits. Under the AEDPA, a federal evidentiary hearing
cannot be held on claims that the prisoner could have developed in state
court.(50)
In 1995, during the time Troy Davis was in state habeas corpus
proceedings, the US Congress voted to eliminate federal funding for the
post-conviction defender organizations (PCDOs) which it had established in 1988
to provide legal assistance to indigent death row prisoners. One such PCDO, the
Georgia Resource Center, which was representing Troy Davis, had its budget cut
by some two thirds and the number of lawyers on its staff cut from eight to two.
Their case load was some 80 death row cases.(51) A lawyer working on Troy Davis'
case stated in an affidavit that "I desperately tried to represent Mr Davis
during this period, but the lack of adequate resources and the numerous
intervening crises made that impossible... We were simply trying to avert total
disaster rather than provide any kind of active or effective
representation".(52) In his report on the USA in 1998, the UN Special Rapporteur
on extrajudicial, summary or arbitrary executions expressed concern that "the
absence of PCDOs creates a grave difficulty for defendants at the
post-conviction level".(53)
After Judge Nangle denied Troy Davis' appeal, the case moved to the next level
of federal review, the US Court of Appeals for the 11th Circuit. At oral
arguments in front of a three-judge panel of the 11th Circuit on 7 September
2005, Judge Rosemary Barkett expressed concern that Troy Davis had not been
granted a federal hearing to present the new evidence. She asked, "If these
people say, 'I was coerced by the police,' how could [Judge Nangle] reject that
without a hearing?"(54) Judge Barkett reportedly suggested that without the
testimony of the various trial witnesses who had now recanted, the state
appeared to have no case.
However, on 26 September 2006, the 11th Circuit panel upheld Judge Nangle's
ruling, finding that "we cannot say that the district court erred in concluding
that Davis has not borne his burden to establish a viable claim that his trial
was constitutionally unfair". The Schlup gateway remained firmly closed
to Troy Davis, and AEDPA-backed finality was a step closer. In December 2006,
Troy Davis' appeal for a rehearing in front of the full 11th Circuit court was
rejected. His last hope for judicial intervention in the regular appeals process
at that point was the US Supreme Court, which takes only a tiny percentage of
the cases brought before it.
Clemency: recognizing the possibility of human error
History shows that executive
clemency is the traditional 'fail-safe' remedy for claims of innocence based on
new evidence, discovered too late in the day to file a new trial motion
US Supreme Court, 1993(55)
On 15 April 2006, President Arroyo of the Philippines ordered the commutation of
all death sentences in her country -- more than 1,000 -- in what is believed to
be the largest such act of clemency in modern times. Announcing her move, she
said: "I wish to announce that we are changing our policy on those who have been
imposed the death penalty. We are reducing their penalty to life imprisonment.
Anyone who falls and makes mistakes has a chance to stand up and correct the
wrong he has committed."
President Arroyo's statement can be read two ways. Firstly, removing the death
penalty reinstates the possibility of rehabilitation and reform on the part of
an offender.(56) But removing the threat of execution also opens up the
possibility that any mistakes committed by the state in its prosecution of the
individual can be remedied while the prisoner is still alive. Thus clemency is
justified whether Troy Davis is guilty or innocent of the murder of Officer Mark
Allen McPhail.
The power of executive clemency exists as a failsafe against error and to allow
consideration of evidence that the courts were unable or unwilling to reach.
Clemency has been granted in a number of death penalty cases over the years in
the USA, and has become more frequent as evidence of problems with the capital
justice system has increased. In several cases, clemency was granted on the
grounds of possible innocence.(57) In some cases, executive clemency has proven
to be "the decisive step that averts a terrible miscarriage of justice".(58) In
1994, for example, the governor of Virginia commuted Earl Washington's death
sentence to life imprisonment. Six years later, DNA evidence proved his
innocence and Washington was pardoned.
Support for clemency can come from many quarters, and can involve late changes
in mind on the parts of officials previously involved in the case. One such case
recently emerged in California. Appointed as a county-level judge by the then
Governor of California Ronald Reagan in 1974, Judge Charles McGrath presided
over the 1983 trial of Michael Morales at which the defendant was sentenced to
death. Twenty-three years later, in January 2006, Judge McGrath wrote to state
Governor Arnold Schwarzenegger to appeal for clemency for Morales. A key witness
at the trial -- a jailhouse informant -- had testified that Morales had
confessed the crime to him in jail. At the time of the trial, Judge McGrath had
found the informant's testimony to be credible, but in his letter in 2006 to the
Governor, the judge wrote that "new information has emerged to show the evidence
upon which I relied in sentencing Mr Morales to death -- [the jailhouse
informant's] testimony -- is false". Judge McGrath expressed his concern that
Michael Morales had not received an evidentiary hearing in federal court.(59)
Numerous witnesses, including a jailhouse informant, whose testimony was used
against Troy Davis at his trial, have since recanted or contradicted their trial
testimony. Troy Davis has never had an evidentiary hearing in federal court on
the issue. Justice surely demands that clemency be granted.
Indeed, the risk of error surely demands a rethink on the death penalty. In
January 2007, Andrew Gossett, who was serving a 50-year prison sentence in Texas
for sexual assault, was freed after DNA evidence confirmed his innocence. The
case prompted the Dallas Morning News to speak out against executions:
"That juries and judges are fallible is not a revelation. Human error is an
inherent part of the system. Thank goodness that in the case of Mr. Gossett a
terrible wrong has been corrected... For the condemned, evidence of an error
could come too late. Lethal injections don't allow those second chances...Even
the remote possibility of a mistake is unacceptable in death penalty cases.
Lawmakers have dismissed our calls for a death penalty moratorium. But the
frailties in the justice system that have been exposed suggest that it's time to
revisit this issue. When Mr. Gossett was set free last week, newly elected
District Attorney Craig Watkins was in the courtroom. He thought it was
important to tell Mr. Gossett, 'We're sorry.'
State officials won't have that opportunity if capital punishment is meted
out incorrectly."(60)
Where is the Justice for me? A plea from Troy Davis
Where is the Justice for me? In 1989 I surrendered myself to the police for
crimes I knew I was innocent of in an effort to seek justice through the court
system in Savannah, Georgia USA. But like so many death penalty cases, that was
not my fate and I have been denied justice. During my imprisonment I have lost
more than my freedom, I lost my father and my family has suffered terribly, many
times being treated as less than human and even as criminals. In the past I have
had lawyers who refused my input, and would not represent me in the manner that
I wanted to be represented. I have had witnesses against me threatened into
making false statements to seal my death sentence and witnesses who wanted to
tell the truth were vilified in court.
For the entire two years I was in jail awaiting trial I wore a handmade cross
around my neck, it gave me peace and when a news reporter made a statement in
the local news, "Cop-killer wears cross to court," the cross was immediately
taken as if I was unworthy to believe in God or him in me. The only time my
family was allowed to enter the courtroom on my behalf was during the sentencing
phase where my mother and sister had to beg for my life and the prosecutor
simply said, "I was only fit for killing." Where is the Justice for me, when the
courts have refused to allow me relief when multiple witnesses have recanted
their testimonies that they lied against me?
Because of the Anti-Terrorism Bill, the blatant racism and bias in the U.S.
Court System, I remain on death row in spite of a compelling case of my
innocence. Finally I have a private law firm trying to help save my life in the
court system, but it is like no one wants to admit the system made another grave
mistake. Am I to be made an example of to save face? Does anyone care about my
family who has been victimized by this death sentence for over 16 years? Does
anyone care that my family has the fate of knowing the time and manner by which
I may be killed by the state of Georgia?
I truly understand a life has been lost and I have
prayed for that family just as I pray for mine, but I am Innocent and all I ask
for is a True Day in a Just Court. If I am so guilty why do the courts deny me
that? The truth is that they have no real case; the truth is I am Innocent.
Where is the Justice for me?
Troy Anthony Davis, January 2007
The Invisible Victims, by Martina Correia
My name is Martina Correia and I am on Death Row in Georgia. No I have not
murdered anybody, never even been on trial; I am on death row because that is
where my brother lives. Death Row has been for me and my family a living
nightmare. As the eldest of five children I have always been responsible for
protecting my siblings, and I keep wondering what I could have done to go back
in time or change past history.
My father died of pure depression and grief, my mother prays and prays and
prays and cries and cries and cries. Late night phone calls terrify us, prison
visits elate us, and death is always upon us. They say we are on the side of the
murderer; we have been treated at times like criminals.
We temporarily lost our place of worship, we lost friends, we lost jobs but
we never lost faith or the unconditional love of Troy, my brother. We became the
invisible victims, the tormented, the shamed; we became the enemy of the state.
I once believed in Justice, I don't anymore. My life is a constant battle, I
fight to save my brother, I fight to save myself from cancer, I fight to protect
and educate my son and I fight to see my mother smile. It is a terrible thing to
know someone you love will be killed, the day, the hour, with years of constant
torment and fear. On death row you see the other families awaiting execution and
you don't know what to say: you wonder if their pain and suffering will be over
or just added to.
My greatest fear is that in the judicial system no one really cares and my
brother will be killed by the State of Georgia. I look at my son who is old
enough to ask the question, "Why do they want to kill my Uncle Troy?" I don't
have a good answer. I feel at times, it would be better to die of cancer than to
live and see my brother executed for a crime he did not commit. I live day to
day thinking of death and dying, I think to myself, "What can I do to save
Troy?" or even, "Will I be alive to see him walk free?"
My name is Martina and I am on Death Row.
Martina Correia, January 2007
Please appeal for clemency for Troy Davis
In Georgia, the clemency authority is the State Board of Pardons and Paroles. In
its annual report of 2005, the Board describes its task thus:
"The Parole Board has the sole constitutional authority to reduce capital
punishment cases to a sentence of life or life without parole. Once a death row
inmate exhausts his judicial appeals an execution date is set. At that time, the
condemned inmate can request an appointment before the Board to ask for
executive clemency. Prior to the appointment, the Board staff compiles an
exhaustive set of reports about the circumstances of the offense, criminal
history and life of the condemned inmate. Each Board member reviews the file and
the appointment is scheduled to allow those in favour of clemency to appear
before the entire Board. Usually the appointment is attended by the inmate's
attorneys, family or friends. The condemned inmate does not attend the
appointment. At the conclusion of the appointment, Board members each cast a
confidential vote on the request to commute the death sentence. A majority of
three affirmative votes is required to commute a death sentence."(61)
Since executions resumed in the USA in January 1977, 39 prisoners have been put
to death in Georgia (by 1 February 2007). In the same period, six prisoners have
been granted clemency.(62)
Recommendations for appeals
Using the information in this report, please write to the Georgia parole board,
in your own words, to seek clemency for Troy Davis. If possible, write a
separate appeal to each of the individual Board members. If you can only write
one appeal, please send it to the Chairperson. Please write in English. We
recommend that your appeals be no more than two pages in length. The following
is a guide only:
Ø explaining that you are not seeking to condone the murder of Officer Mark
Allen McPhail, or to downplay the seriousness of the crime or the suffering
caused;
Ø explaining that you are writing to seek clemency for Troy Anthony Davis, whose
judicial appeals are almost exhausted;
Ø noting that almost all of the witnesses who testimony was used against Troy
Davis at his trial have since recanted or contradicted their trial testimony;
Ø noting the large number of wrongful convictions in capital cases that have
been uncovered in the USA since 1976;
Ø noting that unreliability of witness testimony has been one of the
contributing factors in numerous of these cases;
Ø expressing concern that Troy Davis has not had a hearing in federal court on
the reliability of the witness testimony used against him at trial;
Ø noting that the power of clemency in capital cases exists as a failsafe
against irreversible error that the courts have been unable or unwilling to
remedy;
Ø noting that numerous death row inmates whose judicial appeals have been
exhausted have received clemency since 1977 in the USA on the grounds of doubts
about their guilt (see footnote 57);
Ø calling on the Board to commute the death sentence of Troy Davis.
Board
members
- Garland R. Hunt, Esq. (Chairperson)
- L. Gale Buckner (Vice Chair)
- Garfield Hammonds, Jr.
- Robert E. Keller
- Milton E. Nix, Jr.
Address
State Board of Pardons and Paroles
2 Martin Luther King, Jr. Drive, SE
Suite 458, Balcony Level, East Tower
Atlanta, Georgia 30334-4909
USA
Fax: +1 404 651 8502
Email: Webmaster@pap.state.ga.us
Salutation, as appropriate: Dear Chairperson Hunt / Vice Chair Buckner /
Board Member Hammonds, Keller, Nix
Please organize as many appeals as you can. If you can organize a petition,
collecting signatures supporting clemency for Troy Davis to send to the Board,
please do so. Please check with the AI Section in your country or the
International Secretariat, if sending appeals after 30 June 2007.
********
(1) Chicago Sun-Times, 12 May 2004, cited in The Death Penalty in 2004: Year End
Report, Death Penalty Information Center,
http://www.deathpenaltyinfo.org/DPICyer04.pdf.
(2) United Nations Safeguards guaranteeing the rights of those facing the death
penalty. 1984.
(3) Herrera v. Collins, 506 U.S. 390 (1993), opinion written by Chief Justice
Rehnquist.
(4) Judge Carolyn King, US Court of Appeals for the Fifth Circuit, Address to
Red Mass, Corpus Christi Cathedral, Texas, 4 October 2006. Speech available from
South Texas Catholic News, 20 October 2006,
http://www.goccn.org/stc/articles/article.cfm?article=550.
(5) Life, death and uncertainty, by US District Judge Michael Ponsor, Boston
Globe, 8 July 2001.
(6) See USA: The experiment that failed. A reflection on 30 years of executions,
AI Index: AMR 51/011/2007, 16 January 2007,
http://web.amnesty.org/library/Index/ENGAMR510112007.
(7) A Broken System: Error Rates in Capital Cases, 1973-1995, conducted at New
York's Columbia Law School by James S. Liebman, Jeffrey Fagan and Valerie West,
published 12 June 2000.
(8) A recent study of legal representation in death penalty cases in Virginia,
Alabama, Mississippi and Georgia concluded that in the first three of these
states, "poor representation is a result of official policy. The states pay no
more than a pittance to help lawyers defend their clients, and none requires
that well-trained attorneys handle death cases. Georgia had a similarly
inadequate system until 2005, when a publicly funded, statewide capital
defenders office began spending whatever is necessary to scour client's
backgrounds for mitigating evidence. So far, none of that office's 46 clients
has been sentenced to death". Indefensible? Lawyers in key death penalty cases
often fall short. McClatchy Special Report, 21 January 2007,
http://www.realcities.com/mld/krwashington/news/special_packages/death_penalty//
(9) New Jersey Death Penalty Study Commission Report, January 2007. The report
is available at
http://www.njleg.state.nj.us/committees/njdeath_penalty.asp.
(10) Kansas v. Marsh, 26 June 2006, Justice Scalia concurring.
(11) Death Penalty Information Center, see
http://www.deathpenaltyinfo.org/article.php?scid=6&did=110.
(12) Page 60, Hugo Bedau and Michael L. Radelet, Miscarriages of justice in
potentially capital cases, Stanford Law Review, Volume 40, pages 21 to 179.
(13) Aaron Patterson, Madison Hobley, Leroy Orange and Stanley Howard. Each had
spent at least 15 years on death row.
(14) See USA: New Jersey Death Penalty Study Commission recommends abolition, AI
Index: AMR 51/003/2007, 3 January 2007,
http://web.amnesty.org/library/Index/ENGAMR510032007.
(15) See Capital punishment's deathly injustice, Los Angeles Times, 28 August
1978, available at
http://www.deathpenaltyinfo.org/EarlCharles.pdf.
(16) USA: Joseph Amrine: Facing execution on tainted testimony, AMR 51/085/2002,
June 2002,
http://web.amnesty.org/library/index/engamr510852002.
(17) See, for example, Did Texas execute an innocent man? Houston Chronicle, 24
July 2006.
(18) NAACP report available at
http://www.truthinjustice.org/griffin-report.htm.
(19) USA: An appeal to President Clinton, Vice-President Gore and Governor Bush
of Texas to condemn one illegal execution and to stop another, AI Index: AMR
51/096/2000, 15 June 2000,
http://web.amnesty.org/library/Index/ENGAMR510962000. See also, Mandy
Welch and Richard Burr, The politics of finality and the execution of the
innocent: The case of Gary Graham. In: Machinery of Death: The reality of
America's death penalty regime. Edited by David Dow and Mark Dow, Routledge
Books, 2002.
(20) Nevertheless, as well as the above cases, a number of investigations have
unearthed evidence pointing to the execution of wrongfully convicted individuals
in the USA. Journalists at the Chicago Tribune, for example, have raised
compelling evidence that Carlos DeLuna, executed in Texas in 1989 for a murder
committed six years earlier, was innocent of the crime for which he was put to
death. See 3-part series by Steve Mills and Maurice Possley, Chicago Tribune: 'I
didn't do it. But I know who did' (25 June 2006). A phantom, or the killer? (26
June). The secret that wasn't (27 June).
http://www.chicagotribune.com/news/specials/broadband/chi-tx-htmlstory,0,7935000.htmlstory.
(21) Davis v. State (1993), affirming the conviction and death sentence.
(22) Samuel R. Gross. The risks of death: Why erroneous convictions are common
in capital cases. Buffalo Law Review, Volume 44, pages 469-500 (1996).
(23) This can be even more pronounced when the victim was white and the
perpetrator black, as in this case.
(24) Witherspoon v. Illinois, 391 U.S. 510 (1968).
(25) Wainwright v. Witt, 469 U.S. 412 (1985). In 1992, in Morgan v. Illinois,
the Court explicitly extended the Witt standard to include proponents of the
death penalty. In other words, anyone whose support for the death penalty would
"prevent or substantially impair" them from performing his or her duties as a
juror can be dismissed for cause.
(26) Report of the Special Rapporteur on extrajudicial, summary or arbitrary
executions. Addendum: Mission to the United States of America, UN Doc.
E/CN.4/198/68/Add.3, para. 147. 22 January 1998.
(27) Lockhart v. McCree, 476 U.S. 162 (1986).
(28) Ibid. Justices Marshall, Brennan and Stevens, dissenting.
(29) Mike Allen, Edward Mabry and Drue-Marie McKelton, Impact of juror attitudes
about the death penalty on juror evaluations of guilt and punishment: A
meta-analysis. Law and Human Behaviour, Volume 22, No. 6, 1998, pages 715 to
731.
(30) Marla Sandys, Stacking the deck for guilt and death: The failure of death
qualification to ensure impartiality. In: America's experiment with capital
punishment. Edited by James R. Acker, Robert M. Bohm and Charles S. Lanier.
Carolina Academic Press, 1998.
(31) A May 2006 Gallup Poll in the USA found that when given a choice between
the sentencing options of life without parole and the death penalty, fewer than
half -- 47 per cent -- of respondents chose capital punishment. This was the
lowest percentage in two decades. 63 per cent of respondents said that they
believed that an innocent person had been executed in the previous five years.
64 per cent disagreed with the notion that the death penalty deters murder.
Polls in the 1980s and early 1990s indicated a majority believing that the death
penalty deterred murder.
(32) In January 2004, the Georgia parole board commuted the death sentence of
Willie James Hall on the eve of his execution. During his clemency hearing, six
of the jurors from the 1989 trial testified that they would have voted for life
without parole if that sentence had been an option at the time.
(33) Paduano, A. and Stafford Smith, C., Deathly errors: Juror misperceptions
concerning parole in the imposition of the death penalty. Columbia Human Rights
Law Review, Volume 18:2, pages 211-257 (1987).
(34) See note 4, ibid.
(35) Davis v. Turpin. Transcript of proceedings before Honorable John M. Ott,
Judge, Rockdale Judicial Circuit presiding in Butts County, Georgia, 16 December
1996.
(36) Davis v. Head, Brief on behalf of the appellee, On appeal from the United
States District Court, Southern District of Georgia, Savannah Division, In the
United States Court of Appeals for the Eleventh Circuit, 14 February 2005.
(37) Convicted killer seeks to avoid verdict. The Atlanta-Journal Constitution,
8 September 2005.
(38) The affidavit mistakenly says Oglethorpe Street rather than Avenue.
(39) Copies of all affidavits on file with Amnesty International.
(40) Trott, Stephen S. Words of warning for prosecutors using criminals as
witnesses. 47 Hastings Law Journal (1996), page 1394.
(41) His affidavit was read to him before he signed it and he stated that it was
accurate.
(42) Report of the Special Rapporteur on extrajudicial, summary or arbitrary
executions. Addendum: Mission to the United States of America, UN Doc.
E/CN.4/198/68/Add.3, para. 147. 22 January 1998.
(43) President William J. Clinton, Statement on signing the Anti-terrorism and
Effective Death Penalty Act of 1996. 24 April 1996.
(44) President William J. Clinton, Remarks on signing the Anti-terrorism and
Effective Death Penalty Act of 1996, 24 April 1996.
(45) Is fairness irrelevant? The evisceration of federal habeas corpus review
and limits on the ability of state courts to protect fundamental rights. By
Stephen B. Bright, John Randolph Tucker Lecture, Published in Volume 54 of the
Washington and Lee Law Review, page 1 (Winter 1997).
(46) Steiker, C. and Steiker, J. The effect of capital punishment on American
criminal law and policy. Judicature, Volume 89, Number 5, page 251, March-April
2006.
(47) Herrera v. Collins, 506 U.S. 390 (1993).
(48) Schlup v Delo, 513 US 298, 23 January 1995.
(49) Davis v. Head, Order. US District Court, Southern District of Georgia,
Savannah Division, 13 May 2004.
(50) 28 U.S.C. § 2254 (e)(2): "If the applicant has failed to develop the
factual basis of a claim in State court proceedings, the court shall not hold an
evidentiary hearing on the claim unless the applicant shows that - (A) the claim
relies on - (i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable; or (ii)
a factual predicate that could not have been previously discovered through the
exercise of due diligence; and (B) the facts underlying the claim would be
sufficient to establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found the applicant
guilty of the underlying offense"."
(51) Witnesses recant; law stymies death row appeal. The Atlanta-Journal
Constitution, 21 September 2003.
(52) Ibid.
(53) UN Doc. E/CN.4/198/68/Add.3, para. 99.
(54) Convicted killer seeks to avoid verdict. The Atlanta-Journal Constitution,
8 September 2005.
(55) Herrera v. Collins, 506 U.S. 390 (1993).
(56) "The death sentence must, in some measure, manifest a philosophy of
indefensible despair in its execution, accepting as it must do, that the
offender it seeks to punish is so beyond the pale of humanity as to permit of no
rehabilitation, no reform, no repentance, no inherent spectre of hope or
spirituality; nor the slightest possibility that he might one day, successfully
and deservedly be able to pursue and to enjoy the great rights of dignity and
security and the fundamental freedoms protected in... the Constitution, the
exercise of which is possible only if the 'right to life' is not destroyed. The
finality of the death penalty allows for none of these redeeming possibilities.
It annihilates the potential for their emergence." The State v. T. Makwanyane
and M. Mchunu, Constitutional Court of the Republic of South Africa, 6 June
1995, Mahomed, J., concurring. In any event, an execution ios incompatible with
the requirement to respect human dignity that lies at the heart of international
human rights law and which the US Supreme Court says underlies the US
constitutional ban on "cruel and unusual" punishments. "The basic concept
underlying the Eighth Amendment is nothing less than the dignity of man." Trop
v. Dulles (1958).
(57) E.g. Learie Leo Alford (sentence commuted 1979, Florida); Jesse Rutledge
(1983, Florida); Doris Ann Foster (1987, Maryland); Ronald Monroe (1989,
Louisiana); Joseph Giarratano (1991, Virginia); Herbert Bassette (1992,
Virginia); Anson Avery Maynard (1992, North Carolina); Earl Washington (1994,
Virginia); Joseph Payne (1996, Virginia); Donald Paradis (1996, Indiana); David
Chandler (2001, Federal); Phillip Dewitt Smith (2001, Oklahoma); Aaron
Patterson, Madison Hobley, Leroy Orange and Stanley Howard (2003, Illinois --
all four pardoned by the governor). For further information, see
http://www.deathpenaltyinfo.org/article.php?did=126&scid=13.
(58) Radelet, M.L. and Zsembik, B.A., Executive clemency in post-Furman capital
cases. University of Richmond Law Review, Volume 27, pages 289 to 314 (1993).
(59) Letter from Charles R. McGrath, Judge, Chambers of the Superior Court,
Ventura, California, dated 25 January 2006, available at
http://media.newsreview.com/media/sacto/2006-04-06/Judge%20McGrath%20Letter1.pdf.
In the event, Michael Morales execution was stayed, and in December 2006, his
case led to a suspension of executions in California due to a District Court's
finding of serious problems with the state's lethal injection protocols. See,
USA: New Year's resolution: End a cruel and outdated punishment, AI Index: AMR
51/205/2006, 21 December 2006,
http://web.amnesty.org/library/Index/ENGAMR512052006.
(60) Reasonable Doubt: Is death row immune to DNA exonerations? Dallas Morning
News, 10 January 2007.
(61) Page 19, report available at
http://www.pap.state.ga.us/05AnnualReport.PDF.
(62) Charles Hill (1977), Freddie Davis (1988), Harold Williams (1991), on the
grounds that the death sentence was disproportional to the sentence given to his
equally or more culpable co-defendant; William Moore (1990), reportedly on the
grounds of his good conduct in prison, his remorse, his religious conversion,
and the pleas for clemency from the victim's family; Alexander Williams (2002),
on the grounds of his mental illness; Willie James Hall (2004) -- six jurors had
testified that they would have chosen life without parole had it been an option
at the trial. Hall's good conduct in prison and no criminal record prior to the
murder was also reported to be a factor in the board's decision.
************
US
Supreme Court stays execution of Georgia death row inmate
Leslie Schulman
|
September 24, 2008 |
http://jurist.law.pitt.edu/paperchase/2008/09/us-supreme-court-stays-execution-of.php
The US
Supreme Court [official website] on Tuesday
stayed the execution [order, PDF] of Georgia death row inmate Troy Anthony
Davis "pending the disposition of the petition for a writ of
certiorari."
Davis had been
scheduled to be executed [AG news release] at 7 PM EDT on Tuesday. According
to his lawyers, key witnesses who claimed they saw Davis kill an off-duty police
officer in 1989 have recanted their testimony and others say another person has
since confessed to the killing. A stay will terminate automatically if Davis's
petition for
certiorari
is denied. The US Supreme Court had previously denied a petition for
certiorari
in the case, and the
Georgia Supreme Court [official website] in March
denied [court docket;
opinion summary] Davis's request for a new trial. AP has
more. The Atlanta Journal-Constitution has
local coverage.
Davis would have been the third prisoner in Georgia to be executed since
September 2007, after
resuming executions in May following an
effective moratorium [JURIST reports] on the death penalty in the United
States as many federal courts, state courts, and state governors put executions
on hold pending the US Supreme Court's ruling in
Baze v. Rees [Duke Law case backgrounder; JURIST
report], which allowed the Court to consider whether the
three-drug lethal injection "cocktail" [DPIC backgrounder] used in most
states violates the Eighth Amendment's prohibition on cruel and unusual
punishment. The Court
upheld the procedure [opinion, PDF] in April. Several other US states have
since resumed executions by lethal injection, including
Texas [JURIST report],
Virginia [Times-Dispatch report],
Mississippi, and Florida, which on Tuesday
executed Richard "Ric Ric" Henyard [AP reports] by lethal injection.
***********
Troy Davis Deserves a New Trial
By Amy Goodman, King Features Syndicate
September 25, 2008
http://www.alternet.org/story/100313/
Troy Anthony Davis was scheduled to die by lethal injection Tuesday. Two hours before the state of Georgia was to execute him, the U.S. Supreme Court issued a stay until Monday. It had earlier agreed to hear Davis' case on Sept. 29, but Georgia set his execution date six days before the hearing.
Davis was charged with killing Mark MacPhail, an off-duty police officer, in Savannah, Ga., in 1989. Davis had gone to the aid of a homeless man who was being pistol-whipped in a parking lot. Seeing the gun, he said he fled. MacPhail, working security nearby, intervened next, and was killed. Davis, an African-American, claimed his innocence, but was found guilty and sentenced to death. Since his conviction, seven of the nine non-police witnesses have recanted their testimony, alleging police coercion and intimidation in obtaining their testimony. By coming forward and recanting, they face serious repercussions, possibly jail time. Some have identified a different man as the shooter. This man is one of Davis' remaining accusers.
In July 2007, Davis faced his first execution date. Just a day before he was to be executed, the Georgia Pardons Board granted a stay of execution for up to 90 days. Then, Davis' attorneys argued before the Georgia Supreme Court for a retrial or for a hearing to present new evidence. The requests were denied, by a 4-to-3 vote. In the same period, the U.S. Supreme Court was weighing whether death by lethal injection constituted cruel and unusual punishment (the court ultimately allowed its use).
The U.S. Supreme Court will consider Monday whether it will take on Davis' case. If it decides not to, he very likely will be executed.
Among Davis' defenders is former President Jimmy Carter. He said: "This case illustrates the deep flaws in the application of the death penalty in this country. Executing Troy Davis without a real examination of potentially exonerating evidence risks taking the life of an innocent man and would be a grave miscarriage of justice." Georgia Congressman John Lewis also supports Davis. I spoke with Lewis at Invesco Field in Denver, just before Barack Obama's acceptance speech. It was 45 years to the date after the March on Washington and Dr. Martin Luther King Jr.'s "I Have a Dream" speech.
Lewis recalled that historic day: "We were in Washington, more than 250,000 of us, black and white, Protestant, Catholic, Jews, people of different background, rich and poor. ... In many parts of the South, people could not register to vote, simply because of the color of their skin. And we changed that."
Yet this week, in light of Davis' plight, Lewis told me: "In spite of all of the progress that we've made as a nation and as a people, we still have so far to go. The scars and stains of racism are still deeply embedded in every corner, in every aspect of the American society." He went on to say, when I pointed out that Sen. Obama himself supports the death penalty: "It is troublesome. You know ... someplace along the way, some of us must have the courage to say -- and I'm moving closer and closer to this point -- that in good conscience, I cannot and will not support people who support the death penalty. I think it's barbaric, and it represents the Dark Ages. .... I don't think as human beings, I don't think as a nation, I don't think as a state, we have the right to take the life of another person. That should be left for the Almighty to do."
The death penalty is a noxious and racist practice. According to the NAACP Legal Defense Fund, of more than 3,300 people on death row in the U.S., over 41 percent are African-American -- more than three times their representation in the general population. According to the Death Penalty Information Center, since 1973 there have been 130 people exonerated -- people wrongly sentenced to death -- in 26 different states, including five exonerated on death row in Georgia. Evidence even suggests that at least four innocent people have been executed in recent years. There is no physical evidence in the Troy Davis case. After the stay was announced, Davis asked his mother to have people pray for the MacPhail family, and to keep working to dismantle this unjust system. He told her he wouldn't be fighting this hard for his life if he were guilty. This is a case of reasonable doubt. Troy Davis deserves a new trial.
Amy Goodman is the host of the nationally syndicated radio news program, Democracy Now!