“Better One Innocent Man Should Die …than we should ever get rid of the death penalty.”

I know that’s a crude reversal of the standard catchphrase death penalty opponents make. Yet, isn’t it in truth the mantra of those who favor the death penalty? That if mistakes are made, so what? Gotta break a few eggs, etc. No matter that the Innocence Project has shown that a large number of murder convictions are the result of false testimony, corrupt prosecutors, mis-identification by victims, etc.

Well, now Troy Davis, convicted of killing a white police officer and a prisoner on Death Row in Georgia, is getting the rarest of opportunities: a special hearing ordered the US Supreme Court (despite the dissents of Scalia and Thomas who argued the Constitution does not prohibit the killing of an innocent man) to present the evidence of his innocence. And there’s a lot of it.

A string of witnesses admitted Wednesday giving false testimony at the 1991 trial of a convicted murderer who has spent almost two decades on death row in the United States. […]

The witnesses, some of whom were illiterate, in prison, or in their teens when they originally testified, provided the key evidence that convicted Davis, an African-American, of murdering white off-duty police officer Mark McPhail.

Here is the story of the Troy Davis arrest, trial and conviction to give you some context:

The sequence of events remain murky and sticky like that night, since stories have changed several times, as years and continuous media reports add to new twists and turns. But what has not changed is the fact that a young 27 year old Police Officer, Mark Allen MacPhail, lost his life in a senseless, brutal murder and Troy Davis was the young man who supposedly did it.

Patrick Rodgers, a journalist who moved to Savannah four years ago, described the events in a well researched story in the South Magazine, a bi-monthly out of Savannah, Georgia.

“In the early morning hours of Saturday, August 19, 1989, an urgent call went out across all of Savannah’s police and emergency response radio frequencies—an officer had been shot—and in a matter of minutes, units swarmed around the bus station parking lot from as far away as Oglethorpe Mall. Drenched in swirling red and blue siren light, and overwhelmed by emotion at the sight of a violently-executed colleague, police combed the area for witnesses and evidence. But as the sun slowly rose from the depths of the Atlantic to illuminate the west side of Oglethorpe Avenue, there were no concrete leads—just a pool of blood and a vague description of a black man in his early 20s, last seen running toward Yamacraw Village.

Twenty-five officers were assigned to the case, and 30 witnesses were quickly rounded up. A homeless man handed over several empty .38 caliber casings—the same caliber of weapon used in a shooting earlier that night at a pool party in Cloverdale, only a few blocks from Troy Davis’ residence; the same caliber weapon that Officer MacPhail was never able to remove from his holster before being shot fatally through the left side, a spot unprotected by his bulletproof vest.

Later that morning, Sylvester “Red” Coles turned up at the police station with his attorney. He had been part of the argument that precipitated MacPhail’s shooting and wanted to tell the police his story. Across town, Troy Davis woke up and began to check items off his list of errands for the day: According to his sister, Martina, he would then head over to her house for a dinner party before catching a ride to Atlanta with her and her husband to look for work.”

Coles was the man who fingered Troy Davis. Despite a complete lack of physical evidence the police began a manhunt for Mr. Davis with a poster of his face and orders to “Shoot to kill.” When Davis found out about the manhunt he voluntarily surrendered to the Savannah police. Here’s what happened next.

It was a friend who was a Police Officer who Troy asked to be his arresting officer because they were telling us they had a “ Shoot to Kill” order out on him so his friend went with him. To this day, they have not questioned Troy about what occurred that night when Troy went there. They just asked, “Where is your gun?” and Troy said he doesn’t have a gun. That was the only question they asked. They never asked about the crime. Troy had turned himself in but they made it seem like he had been captured.”

Patrick Rodgers says that comment was corroborated by Troy’s lawyer and adds, “Troy was not asked the questions until he was brought in court and that is totally inexcusable. There is a report in the Savannah Morning News, that the day they brought him in, all of the Police officers were standing outside smiling and high-fiving each other and giving thumbs up to the media and were really exuberant. They were celebrating the fact that he had been caught. There was no “Well, we are just bringing him in for questioning or that this is phase one of the investigation.” As far as they were concerned the case was closed.”

The murder weapon was never found and there was no DNA evidence linking Troy to the crime. However that did not deter the prosecution from proceeding with an indictment. They “had their man” and they stopped investigating any alternative theories of the case and directed all their attention to convicting Davis.

Davis’s conviction came because of the testimony of nine so called eye witnesses. Leading the eye witness Parade was Sylvester “Redd” Coles. Coles has been described by many who know him as a fearsome neighborhood thug. Other eye witnesses were either those who claimed to be present at the shooting or near the crime scene and those who claimed Troy had confessed to them that he had killed Mark MacPhail. What came to light soon after was the fact that Sylvester Coles supposedly had a similar .38 caliber gun, which had killed the police officer. Affidavits submitted much later from 3 people who did not testify at the Davis trial also claim that Coles, confessed to killing the officer after Davis was convicted.

Patrick Rodgers writes in his article that in a discussion with Davis’s current lawyer Jason Ewart, “At some point there was an ‘Oh No!’ moment, when the police discovered that the person who may have fingered Davis had a caliber gun that had killed Officer MacPhail the night of the shooting, [something] that was withheld from them [by Coles],” but that “At that point, it was too late: Davis was the suspect. To go back and investigate someone else would have been politically tough to do…and there was no investigating any other suspect. There was no [police] questioning; there was no searching for the murder weapon; there was no searching anyone else’s house. His picture was the only one they showed in a photographic line up.” […]

“Most of the witnesses who have recanted their testimony claim police detectives, intent on getting Davis, intimidated them into implicating him. Several said they testified falsely because they feared the consequences of contradicting their earlier statements to police. One said two lawyers advised her she could go to prison for perjury if she changed her story.

During Davis’ trial, detectives denied pressuring witnesses. Savannah police spokesman Bucky Burnsed declined recently to address the witnesses’ allegations.

One witness who identified Davis as MacPhail’s killer was Antione Williams. But last year Williams signed a sworn statement saying he had “no idea what the person who shot the officer looks like.”

In a recent interview, Williams said he did not want to testify at the trial but that authorities told him he must.

When the shooting started, Williams said, “I didn’t see the face. I saw the gun. I was too busy ducking, for my own safety.”

Another witness, Dorothy Ferrell, had picked out Davis’ photo as the killer.

“Well, I’m real sure, positive sure, that that is him and, you know, it’s not a mistaken identity,” Ferrell testified.

But in a Nov. 29, 2000, in an affidavit bearing her signature, Ferrell said: “I don’t know which of the guys did the shooting because I didn’t see that part. . . . 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 was still scared that if I didn’t cooperate with the detective, then he might find a way to have me locked up again,” Ferrell, who was on parole in 1989, said in the affidavit.

Politically tough to go back and re-open the case? Politically tough to admit their mistakes? Politically tough to admit they intimidated witnesses to corroborate that Davis was the murderer? Yes, Troy Davis was convicted because it was politically tough. And despite the evidence of innocence that began to mount, new rules which the Congress had put in place to restrict appeals by death row inmates and speed up the execution of death row prisoners appeared to have doomed Troy Davis.

Congress, exasperated by the seemingly endless nature of death-penalty appeals, passed a law intended to speed the death-row journeys of prisoners like Davis. Optimistically called the Antiterrorism and Effective Death Penalty Act (AEDPA), the new law attempted to limit death-row prisoners to one set of appeals in federal court. Despite the restriction, Davis raised a variety of constitutional issues in his trip through the federal courts. Along the way, his lawyers accumulated a stack of affidavits from the motley crew of witnesses and from snitches of their own recanting their trial testimony and, in some cases, pointing new fingers at Coles. […]

Still, a necessary fiction underpinning our justice system is the idea that juries get things right, and so over the years, the courts found no reason to overturn the verdict, in some instances rejecting Davis’ appeals on purely procedural grounds. At one point, the Georgia Board of Pardons and Paroles conducted a detailed examination of the new evidence, but when it decided that Davis did not deserve mercy, the prisoner was forced to ask a panel of judges from the 11th Circuit Court of Appeals for special permission under the AEDPA to file a second federal appeal — this one based on the simple claim that Davis is plainly innocent.

By a vote of 2 to 1, the panel ruled against Davis, and this is where the Supreme Court comes in. Numerous times since the 1996 law was passed, the high court has ruled that the limits imposed by the AEDPA are valid — when they restrict the lower courts. But the Justices held open their own prerogative to issue a writ of habeas corpus if so moved. In other words, the lower federal courts had no power to hear another word from Davis. But he could make his pitch directly to the Supreme Court. Prisoners have been trying for nearly 50 years without success to get the Justices to employ this “original jurisdiction.” Davis succeeded.

The vote was 6-2 (Justice Sotomayer took no part on the deliberations) in favor of the issuance of an order requiring the District Court to hold a hearing to “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence.” Justices Kennedy, Roberts and Alito voted for the order but did not join the concurring opinion of Justice Stevens (joined by Justices Breyer and Ginsberg) which explained the justification for the decision and rebutted the arguments put forth by Justice Scalia:

JUSTICE SCALIA’s dissent is wrong in two respects. First, he assumes as a matter of fact that petitioner Davis is guilty of the murder of Officer MacPhail. He does this even though seven of the State’s key witnesses have recanted their trial testimony; several individuals have implicated the State’s principal witness as the shooter; and “no court,” state or federal, “has ever conducted a hearing to assess the reliability of the score of [post conviction] affidavits that, if reliable, would satisfy the threshold showing for a truly persuasive demonstration of actual innocence,”The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing. Simply put, the case is sufficiently “exceptional” to warrant utilization of this Court’s Rule 20.4(a), 28 U. S. C. §2241(b), and our original habeas jurisdiction. [citation omitted]

Second, JUSTICE SCALIA assumes as a matter of law that, “[e]ven if the District Court were to be persuaded by Davis’s affidavits, it would have no power to grant relief” in light of [AEDPA]. For several reasons, however, this transfer is by no means “a fool’s errand.” … The District Court may conclude that §2254(d)(1) does not apply, or does not apply with the same rigidity, to an original habeas petition such as this. See Felker v. Turpin, 518 U. S. 651, 663 (1996) (expressly leaving open the question whether and to what extent the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to original petitions). The court may also find it relevant to the AEDPA analysis that Davis is bringing an “actual innocence” claim. See, e.g., Triestman v. United States, 124 F. 3d 361, 377–380 (CA2 1997) (dis-cussing “serious” constitutional concerns that would arise if AEDPA were interpreted to bar judicial review of cer-tain actual innocence claims); Pet. for Writ of Habeas Corpus 20–22 (arguing that Congress intended actualinnocence claims to have special status under AEDPA). Even if the court finds that §2254(d)(1) applies in full, it is arguably unconstitutional to the extent it bars relief for a death row inmate who has established his innocence. Alternatively, the court may find in such a case that the statute’s text is satisfied, because decisions of this Court clearly support the proposition that it “would be an atrocious violation of our Constitution and the principles upon which it is based” to execute an innocent person.

And so finally, Troy Davis is being given the opportunity to present evidence of his innocence, evidence that convinced at least two of the jurors who convicted him to sign affidavits that he should not be executed.

Earlier this month, two of the jurors who sentenced Davis to death signed sworn affidavits saying that based on the recanted testimony, he should not be executed. “In light of this new evidence,” wrote one juror, “I have genuine concerns about the fairness of Mr. Davis’ death sentence.”

Here is what some of those witnesses who have recanted their testimony have said before the federal district court:

“When the police arrived, I told them I could barely recognize the shooter,” said Atwan Williams. “I was scared, nervous, I was just trying to take off.”

Asked if he had read back the deposition he gave to police, Williams replied: “No sir, I can’t read.”

Kevin McQueen told the court he had been given a lighter sentence in return for simply making up the details of a confession he claimed Davis had given him. “I was mad at him,” he said.

Seven of the nine witnesses against Davis have recanted their testimony, and several said Wednesday they had lied because they were scared by the police.

“I had cops all around me,” said Jeffrey Sapp, a friend of Davis’s. “I was so scared, I’d have told them everything they wanted. They kept saying ‘Troy told you, Troy told you.’ I was saying the same thing they told me to say.”

At least one of the witnesses, who was 16 when he testified in the original trial and claimed he was harassed by police, now says another witness against Davis could have murdered McPhail.

The fundamental principle of our criminal justice system is that a person under indictment receive due process, which includes a fair and full hearing of all the evidence both for and against him or her. Also we require the high standard that any conviction must be based on the high standard that the defendant was guilty “beyond a reasonable doubt.” I think one can safely say that Mr. Davis did not receive a fair trial. He was, in effect rail-roaded, in the interest of expediency, not justice.

The defense was never told that another potential susoect owned a gun the same caliber as the murder weapon. Furthermore, the prosecuting attorney at Davis’ trial has not denied that police coercion of witnesses against Davis was involved:

Patrick Rodgers was stunned by the fact that when Chatham County D.A. Spencer Lawton Jr. addressed the issue of Police coercion, instead of denying it, he indirectly admitted to it but then said something strange. Rodgers pulled out the quote and it says, “We’ve heard phrases like ‘I felt coerced,’ and ‘I told them what they wanted to hear,’ referring to police. Is there any reason to assume they didn’t feel subjected to exactly that kind of pressure from defense counsel when signing these affidavits?”

Rodgers adds, ‘It really blew me away that Lawton Jr. would not only acknowledge the fact that police coercion was a factor in the initial testimony but he would justify it by saying oh well they were probably coerced by the defense too, so that balances it out and we should still kill him(Troy). I think there are some very serious questions that can be raised about the conduct of the prosecutors during his tenure.”

I’m surprised but not blown away. Prosecutors all across the country rely on police to testify in the cases they bring when they take a defendant to trial. Prosecutors generally will do everything they can to back the police who will testify on behalf of their case. A prosecutor can not allow him or herself to be perceived as anti-police. Not if he or she wants to get convictions.

And this is why we need a full appeals process, especially in capital cases where death is the penalty the state wishes to impose, not some arbitrary limits on appeals. Or maybe, like most civilized nations we should do away with the death penalty altogether. There are too many cases like the case of Troy Davis, where the only evidence in favor of conviction is eyewitness testimony that is often tainted by police misconduct and coercion.

Good luck Mr. Davis. Even with all the evidence that your trial was grossly compromised by the police in their “rush to judgment” to avenge one of their own, I do not trust that the District Court in your case will do the right thing and stay your execution and order a new trial. I wish I could, but in America today Justice often takes a back seat to official corruption and the desire to pump people’s veins full of poison, whether they are guilty of the crimes they are alleged to have committed or not.

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