“If recantation testimony (which convicted a person of murder), either alone or supported by other evidence, shows convincingly that prior trial testimony was false, it simply defies all logic and morality to hold that it must be disregarded categorically…” – Minority opinion of the Georgia Supreme Court, arguing that it is “unwise and unnecessary” for the state to execute an innocent man.
In the early hours of August 19, 1989, a fight broke out near a Burger King restaurant in Savannah, Georgia, between a homeless man, Larry Young, and another man, who struck Mr. Young with his pistol. A 27-year old police officer, Mark Allen MacPhail, attempted to break up the fight, but was shot dead by the man with the gun, who then fled the scene.
About two years later, Troy Davis was convicted of the murder of Mark MacPhail and sentenced to death. The evidence against him consisted of seven eye-witnesses to the murder and two witnesses who claimed that Davis later confessed the murder to them. There was no other evidence, as the murder weapon was never found.
However, of the nine witnesses, seven subsequently recanted their testimony in written affidavits. One of the two who has not recanted his story has subsequently been identified as the murderer by new evidence.
Consequently, efforts were undertaken by human rights organizations to obtain a new trial for Troy Davis, who since his conviction has undergone a truly byzantine journey through our court system, with repeated sentencing, appeals, and last minute stays of execution – the last major event being an August 26, 2009
U.S. Supreme Court decision that a federal district court in Georgia "should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes (Davis's) innocence.”
This case is so disturbing on so many levels that it’s enough to make one lose all faith in our system of justice if one hasn’t already done so. Not so many years ago I used to be in favor of the death penalty. Since then I have learned a great deal and changed my mind for a number of reasons. Probably the most important of those reasons was a growing awareness of how seriously flawed our system of justice is. The case of Troy Davis emphasizes those flaws about as well as any other – although examples abound. Let’s consider a few things:
Recanted testimonyI noted above that 7 of the 9 witnesses who constituted the whole case against Troy Davis have recanted their testimony. One would think that that fact alone would be enough to grant Troy Davis a new trial. But it’s a lot worse than it sounds on the surface, once you take a look at the
specifics of the recanted testimony. It’s more than a little bit reminiscent of how the Bush administration made the case for war against Iraq:
Darrell CollinsThe 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… I was only sixteen and was so scared of going to jail…
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.
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.
Larry YoungMr. Young was the homeless man whom Davis allegedly pistol whipped before shooting MacPhail. Here are excerpts from his affidavit:
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… 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… 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… 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.
Antoine WilliamsAntoine Williams was an employee of Burger King on the day of the shooting.
Later that night, some cops asked me what had happened… 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….
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.
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.
Dorothy FerrellI was scared that if I didn’t do what the police wanted me to do, then they would try to lock me up again… 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… 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…. 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.
Jeffrey SappThe 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… I didn’t want to have any more problems with the cops, so I testified against Troy”.
Kevin McQueenThe 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… 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.
There are others, but I think that’s enough. With that kind of evidence before them, it’s difficult for me to see how judges with any conscience could deny Troy Davis another trial.
Some of the legal issues from the Troy Davis caseI’m not a lawyer, and much of the legal issues involved in this long, drawn out case are very difficult to understand. I’ll just note some of the points that sound especially egregious to me.
On 26 September 2006, the 11th Circuit
upheld a decision against Davis’s request for a federal hearing, 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”. In other words, they were concerned only about evidence of unconstitutionality of the
process used in Davis’s conviction – not about the current presence of evidence with the potential to exonerate him.
In a March 17, 2008
decision by the Georgia Supreme Court, ruling on a motion for a new trial, the court dismissed the importance of the recanted testimony, in their ruling against the motion for a new trial. The majority opinion in this 4-3 decision noted:
the general lack of credibility that should be assigned to recantation testimony in the context of an extraordinary motion for new trial… Trial testimony is closer in time to the crimes, when memories are more trustworthy.
Well, that’s one of the stupidest (or most heartless) things I’ve ever heard. The trial testimony was “closer in time to the crimes”?!! What’s the difference how “close in time” it was to the crimes, when several witnesses testified to police harassment? And why on earth would anyone come forward to admit making a terrible and huge mistake if it wasn’t true? I would say that all of these recanting witnesses demonstrated a good deal of courage to do what they did – notwithstanding the fact that they initially succumbed to the ‘enhanced interrogations’ that the police directed at them. The three judges in the minority on this decision pretty much agree with me on this:
I believe that this case illustrates that this Court’s approach in extraordinary motions for new trials based on new evidence is overly rigid and fails to allow an adequate inquiry into the fundamental question, which is whether or not an innocent person might have been convicted or even, as in this case, might be put to death… It is unwise and unnecessary to make a categorical rule that recantations may never be considered in support of an extraordinary motion for new trial… If recantation testimony, either alone or supported by other evidence, shows convincingly that prior trial testimony was false, it simply defies all logic and morality to hold that it must be disregarded categorically…
In this case, nearly every witness who identified Davis as the shooter at trial has now disclaimed his or her ability to do so reliably. Three persons have stated that Sylvester Coles confessed to being the shooter. Two witnesses have stated that Sylvester Coles, contrary to his trial testimony, possessed a handgun immediately after the murder. Another witness has provided a description of the crimes that might indicate that Sylvester Coles was the shooter.
Wrongful convictionsPerhaps the best argument against the death penalty is the growing awareness of the number of wrongful convictions which were later overturned based on new evidence. Indeed, since 1973, when the death penalty was reinstituted in the United States,
more than 130 people have been released from death row on the basis of new evidence showing that they were wrongly convicted.
And this is just the tip of the iceberg. A large number of those overturned convictions involved DNA evidence and were therefore the consequence of new technology. But only a small fraction of capital cases have the potential of being overturned by DNA evidence – Troy Davis being a case in point. Like many others, his conviction was based on eye-witness testimony – in his case
coerced eye-witness testimony. DNA evidence could not possibly exonerate him. And as long as courts take the ridiculous view that recanted testimony is not worthy of consideration, there will continue to be many unwarranted executions. But even if recanted testimony was taken more seriously, there would still be numerous executions of innocent people, since it is rare that a great deal of effort is put forth to look for former witnesses who may have been coerced into false testimony, as in the Troy Davis case.
A report of a study titled:
A Broken System: Error Rates in Capital Cases, 1973-1995, sheds a lot of light on the problem. It found that appeals courts discovered serious errors requiring a judicial remedy in 68% of cases. The most common 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.
Justice David Souter, joined by three other Supreme Court Justices,
stated the gist of the problem in a 2006 minority opinion, noting:
evidence of the hazards of capital prosecution, (including) repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests… Most of these wrongful convictions and sentences resulted from eyewitness misidentification, false confession, and (most frequently) perjury, and the total shows that among all prosecutions homicide cases suffer an unusually high incidence of false conviction… probably owing to… intense pressure to get convictions…
Racial prejudiceIt is well known that racial prejudice plays a prominent role in the injustices perpetrated in our judicial system – especially in the south. A January 2003
study by the University of Maryland concluded that:
race and geography are major factors in death penalty decisions. Specifically, prosecutors are more likely to seek a death sentence when the race of the victim is white and are less likely to seek a death sentence when the victim is African-American.
Particularly glaring is the
finding that the likelihood of a death sentence is
11 times higher in cases in which blacks killed whites than for cases where whites killed blacks
Racial prejudice among large segments of our population is not likely to disappear any time in the near future. The only way to maintain a semblance of justice (at least with respect to capital punishment) in the face of it is to abolish the death penalty.
The recent U.S. Supreme Court decisionThe recent U.S. Supreme Court decision that requires a federal district court in Georgia to review the evidence in the Davis case provides him with a glimmer of hope. Not surprisingly, Justices Scalia and Thomas dissented,
Scalia saying that even if the district court were to find Davis to be innocent, there would still be nothing unlawful about executing him. Wow!!! It is not at all surprising to hear that asshole say that, but still, it is rather chilling.
But even though that chilling opinion by Scalia was a minority opinion, it is still too early to tell how the U.S. Supreme Court stands on this issue. Michael Dorf discusses the issues in an article titled “
Did the Supreme Court Recognize an Innocent Person’s Right Not to Be Executed”, and he concludes that their recent 6-2 ruling:
may portend recognition of the right of death-sentenced prisoners to present new evidence of innocence, but it may not. Whether the hearing the Court has ordered proves to be a "fool's errand," as Justice Scalia characterizes it, could depend on what the full Court (Sotomayor did not participate in the decision) says about the matter if and when the case returns to its docket.
Some saner and more human opinions The idea that a nation that has a Constitutional Amendment
prohibiting “cruel and unusual punishment” would not recognize an innocent person’s right not to be executed seems to me to be absurd and heartless in the extreme. So I’ll quote some judicial opinions supporting my point of view on that:
U.S. Supreme Court Justice
Harry Blackmun wrote in a minority opinion in1993:
Nothing could be more contrary to contemporary standards of decency, or more shocking to the conscience, than to execute a person who is actually innocent… Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder.
Judge Rosemary Barkett
characterized Troy Davis as being caught up in a “thicket of procedural brambles”, and that to execute him in the face of evidence that could establish his innocence would be “unconscionable”. She said:
What must not be lost sight of is whether Troy Davis may be lawfully executed when no court has ever conducted a hearing to assess the reliability of the score of affidavits that, if reliable, would entitle Davis to federal habeas corpus relief.
And the European Parliament recently
proclaimed about the case:
Whereas, according to Troy Davis' lawyers, there is abundant proof of his innocence, material evidence against him has never been produced and seven witnesses for the prosecution have retracted their testimony… Whereas since 1975 more than 120 people have been released from death row in the United States, having been found innocent…
Calls upon those countries where the death penalty is imposed to take the necessary steps towards its abolition… Asks that Troy Davis' death sentence be commuted and, in view of the abundant evidence which might lead to such commutation, for the relevant courts to grant him a retrial… Calls on … to raise the issue as a matter of urgency with the US authorities… Instructs its President to forward this resolution to the… Government of the United States, the Georgia State Board of Pardons and Paroles, and the Attorney General of Georgia.
For more information on this case, and ideas on what you can do to help, see Amnesty International’s
web page for Troy Davis, Amnesty’s
Troy Davis teach-in resource kit, and their report, “
Unconscionable and unconstitutional: Troy Davis facing fourth execution date in two years”, which ends:
A death row inmate in the USA faces huge obstacles to proving his or her innocence, not least if there is no DNA evidence to test and when the courts treat witness recantations with skepticism…. Circuit Judge Rosemary Barkett is surely right. To execute Troy Davis under these circumstances would be unconscionable.
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