Troy Davis

I know a few days have passed since Mr. Davis was executed, and I know it's a topic that's been discussed extensively during recent times, but I wanted to chip into that discussion because of how valuable I feel it is.  Hopefully something of note comes from it.  A word of warning, though, this post is going to be pretty long, so if you want to skip ahead to what I'm trying to get to, I'll mark off where that part begins with **********************.

Most people know the facts of the case, but if you don't, here's a quick recap.  Troy Davis was convicted in 1991 for the murder of off-duty police officer, Mark MacPhail.  Officer MacPhail was working as a security guard at a Greyhound bus station when he witnessed a homeless man getting assaulted nearby.  He was shot and killed while trying to stop that assault.

Troy Davis' part of the story starts at a pool party earlier in the evening.  While leaving that party with his friend, Darrell Collins, a car passed by and the occupants shouted insults out the window.  A shot was fired and hit a passenger, Michael Cooper, in the face.  The occupants of the car claimed that the shooter was wearing a white t-shirt and blue shorts.  Troy Davis wore a white t-shirt that night.  Some of the people in the car were drunk (Cooper for instance), and they could not identify Davis himself.

Davis and Collins continued on and eventually ran into another friend, Sylvester Coles, who was in the middle of an argument with a homeless man over a beer.  The homeless man, Larry Young, was pistol-whipped, allegedly by Troy Davis, which caught the attention of Officer MacPhail in the nearby bus station, leading to his death moments later in a Burger King parking lot.

From an article over at the Seattle PI website:

Troy Davis: How Did We Get Here?

Davis claimed that he was indeed hanging out with his friends, but that it was Sylvester Coles who pistol-whipped Larry Young.  Davis claimed he left when things started getting heated and heard gunshots, never actually witnessing the shooting.  Coles claimed the opposite; that Davis pistol-whipped Young, and that it was Coles who left as things got heated and heard gunshots a few minutes later.  Davis' defense team unsuccessfully tried to paint Coles as the actual killer.

There was no DNA evidence, no fingerprints, and no murder weapon.  There were shell casings at both the MacPhail crime scene and the earlier scene where the car passenger was shot in the face.  Forensic experts claimed that the bullets fired at MacPhail could have come from the same gun as the bullet that earlier hit Cooper, but the results were inconclusive.  The shell casings at both scenes did appear to match, however.

Coles also owned a .38 caliber handgun but claimed he gave it to someone earlier in the day.

Seven witnesses who were key in convicting Davis have recanted their statements.  Some brought up doubt at Davis's original trial:

Darrell Collins, who was with Davis and Coles the night of the shooting, signed an affidavit in 2002 saying police pressured him into pointing the finger at Davis. But the trial transcript shows he'd made that same assertion on the witness stand. The jury heard Collins back off a statement he'd given to police implicating Davis in the shooting.

"I told you that I didn't see Troy shoot at them, or shoot that night, and I didn't see him with a gun that night," Collins testified.

In another affidavit, witness Antoine Williams alleged he signed a police statement identifying Davis as the killer — adding a description of Davis' clothing — even though he couldn't read. But at trial, Williams testified that he was sitting in a car with tinted windows, making it hard to distinguish clothing colors, and that he was only "60 percent" sure Davis was the gunman.

"I was definitely not sure that was the guy, because I was nervous and I was watching the gun," Williams testified.

And some after trial:

Young, the homeless man who was pistol whipped, signed a 2002 affidavit saying he never got a good look at the shooter or what he was wearing. At the trial, Young was unable to ID Davis as the shooter.

"I really couldn't get no visual," he said. "I could about distinguish the colors of, you know, the clothing, but I couldn't, you know, see no faces."

At the trial, Harriet Murray, a friend of Young's, emphatically identified Davis as the officer's killer, testifying: "When he was shooting the police, he had a little smile on his face, a little smirky-like smile on his face."

In 2002, Murray signed a statement prepared by Davis' attorneys that gives a much vaguer eyewitness account, with no mention of Davis being the gunman.

During the trial, Dorothy Ferrell identified Davis in the courtroom as the shooter, saying she saw him from across the street and was "real sure, positive sure, that that is him."

But in December 2000, Ferrell signed a handwritten statement saying she was telling police what they wanted to hear, because she was on parole for a shoplifting conviction and feared returning to prison. "I don't know which of the guys did the shooting, because I didn't see that part," Ferrell wrote.

Jeffery Sapp testified at the trial that Davis confessed to him hours after the shooting — though he told the jury he'd made up part of a prior statement to police when he'd said Davis told him he shot the officer a second time to make sure he "finished the job."

Years later, Sapp signed an affidavit saying he'd fabricated the entire confession.

So did jailhouse informant Kevin McQueen. In jail when Davis was arrested, McQueen testified that Davis told him he'd shot the officer. But McQueen took it all back in a signed 1996 affidavit, saying: "The truth is that Troy never confessed to me or talked to me about the shooting of the officer."

Witness Steve Sanders told the jury he saw the shooting from inside a van and was certain Davis pulled the trigger. But before the trial, when asked about the suspects, he had told police: "I wouldn't recognize them again except for their clothing."

Some witnesses even signed affidavits stating that Coles later confessed to the murder.

For years, Davis' defense team worked through various levels of the court system.  Often the court rulings against Davis cited that the new information should have been brought up earlier in the process or that the new information wasn't convincing enough to demonstrate innocence or render the original trial unconstitutional.  Further complicating the process was the Anti-Terrorism and Death Penalty Act of 1996 that was drafted and passed in reaction to the Oklahoma City bombing.  The act makes it more difficult for the federal courts to get involved with state rulings and tightens the rules on habeus corpus.  The intent was to prevent people like Timothy McVeigh from abusing the legal system to avoid carrying out death penalty sentencing, but that necessarily restricts the options of someone legitimately fighting a death sentence.  Part of the act was to bar death row inmates from presenting evidence after the fact that could have been presented at trial, something that applied to Davis.

Davis was first scheduled to be executed on July 17th, 2007.  On July 16th, the Georgia State Board of Pardons and Paroles granted a 90-day stay of execution in order to evaluate all the new evidence presented.  The Georgia Supreme Court accepted Davis' application for an appeal where Davis' defense team sought a new trial.  That appeal for a new trial was denied in March 2008.

Davis was then scheduled to be executed on September 23, 2008.  Two hours before he was to be put to death, the U.S. Supreme Court halted the procedure because they would not be able to review Davis' application to have his case heard in time.  The Supreme Court decided not to hear the case in the middle of October 2008.

Davis's third execution date was scheduled for October 28, 2008.  On October 24, 2008, another stay of execution was granted in order to consider a recently filed federal habeus corpus motion.  That was also later denied for reasons like...

As bad as it would be to execute an innocent man, it's also possible the real guilty person who shot Officer MacPhail is not being prosecuted.

... and while there was no DNA evidence to prove Davis guilty, there also wasn't any to prove him innocent.  Obviously our legal system doesn't require proof of innocence, just reasonable doubt of guilt.

Finally, in August of 2009, the U.S. Supreme Court ordered the lower courts to hear testimony about whether evidence not available at the original trial would clear Davis.  That occurred in June of 2010.  At that hearing, the court heard about recanted witness testimony, police interference and threats during the investigation, and they even heard from one witness that Coles had confessed to the killing.

And here's where a tragic misstep occurs.  The court stated that they couldn't give much weight to the Coles did it theory without Coles there to answer those accusations, but Davis' defense failed to get Coles to the court.  In the Seattle PI article, University of Georgia Law Professor Donald E. Wilkes Jr described that failure as...

...the most astonishing blundering and goofing that I've ever heard of in a post-conviction case.

He goes on to state:

"Because of that mistake, the trial judge would not allow them to introduce a lot of the witness recantation evidence," says Wilkes, whose specialties include post-conviction relief, criminal procedure and writs of habeas corpus. "There were a number of witnesses who wanted to testify that this other man had admitted that he was the one who was the killer."

Judge Moore, who ruled against Davis in the 2010 hearing, also blamed the defense team for completely cocking up the Coles bit, but went on to say:

"Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors," he ruled. "The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value."

So now we have a federal judge saying that there is indeed some doubt, it just wasn't enough doubt to make a difference.  Another law professor, Michael Mears of John Marshall Law School, who is against the death penalty, feels that we might need to go a little easy on Judge Moore.

But Mears — an outspoken foe of capital punishment who even filed a brief on Davis' behalf — says Judge Moore's hands were largely tied.

The "supposed recantations" and "so-called affidavits," as he called then, were either unsworn or included inadmissible hearsay. Aside from offering Coles immunity, there was little else he could have done without becoming "a part of the adversarial process."

"So I think that, for better or worse, the system has afforded Troy Davis a tremendous number of opportunities," he says.

So Davis' defense team failed at the system, and therefore the system had to fail Davis.  While the inability to subpoena Coles in 2010 may have been ineptitude, I think it's safe to say that the system itself is extremely complex and could easily prove to be more of a barrier to overturning a wrongful conviction than to protecting someone unfairly found guilty.

Finally:  

In its July 2007 order suspending Davis' execution, the state parole board stated that it would "not allow an execution to proceed in this State unless and until its members are convinced that there is no doubt as to the guilt of the accused." Wilkes says the board, with its "brief, little, pablum-like statement" denying clemency, failed to live up to its own standards.

"No reasonable person can look at this case and say Troy Davis' guilt is certain," he says. "It may be probable. It may be highly likely. But his guilt is not certain."

LeBoeuf says the "global question" is not whether Davis or his attorneys successfully navigated a "procedural thicket of technicalities," but whether there was "a strong evidentiary basis to doubt Troy Davis' guilt."

"And the answer to that, for any fair-minded person, is yes," she says.

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So why did I bother with all of that?  Partly it was for me... to make sure I wrapped my head around what actually happened a little bit.  Partly it was for anyone out there who was curious about some of the basics but hadn't encountered it yet.  The main reason, however, was simply to avoid handwaving away the sheer weight of the process as a whole and what is at stake.

I am against the death penalty.  My argument backing my position isn't revolutionary, but it works for me.  I believe a death sentence needs to be carried out with perfect accuracy.  Anything short of 100% success means an innocent person will be murdered by the state.  Obviously, we are imperfect creatures and perfect accuracy is an impossibility.  

I admit that there are criminals I would be comfortable with killing given the nature of their crimes and the certainty of their guilt, but I'm willing to let them receive life without parole in order to take the death penalty off the table as the only way to ensure a mistake never happens leaving an innocent person to be murdered by the state.

Nothing revolutionary, but I feel it's the only way to tackle the question in a clear manner.  You can get involved in process of asking if certain crimes demand capital punishment, but at some point it will get arbitrary.  Evidence shows that capital punishment isn't cheap or an effective deterrent, so there's no greater good element to consider.  You could argue whether or not the point of justice is retribution, but you still don't address the most important facet... a mistake leading to an innocent person's murder.

But I don't have any direct control over capital punishment in America.  Now we get to why I'm happy to see this issue get so much national discussion.  Here's Governor Perry responding to Brian Williams who just asked if there's any lost sleep over the high numbers of executed prisoners in Texas.

The fact that Governor Perry responds no isn't a surprise, but what grants his calm about the subject is the thoroughness of the system.  I can't site the differences between Georgia and Texas legal proceedings to insure proper application of the death penalty, but they do share the same federal system.  If my life hung in the balance as an innocent man facing capital punishment, I wouldn't have much faith in the system correcting a past error unless I could somehow miraculously prove my innocence with certainty. 

Beyond that, Perry goes on to talk about the notion of justice.  A life for a life when the circumstances call for it.  Again, it feels so arbitrary and cruel, especially in the case where a mistake has occurred, a scenario that Governor Perry, and other supporters of the death penalty never really address when they put their faith in the system.