Troy Davis: How did we get here?

AP News
Posted: Sep 21, 2011 7:31 PM
Troy Davis: How did we get here?

Did Troy Anthony Davis deserve to be put on Georgia's death row? The answer depends on one's faith in the system and its many procedural hoops.

Trial witnesses recanted what they'd sworn to police, and jurors even questioned their verdict. Activists, some of them death-penalty supporters, protested by the thousands that he was innocent _ or at least that guilt was hopelessly shrouded in reasonable doubt.

But do those "supposed recantations," asks law professor Michael Mears, constitute a mountain of evidence? Or were they, as prosecutors claim, just a molehill, fabricated by death penalty opponents?

A close review of Davis' two-decade legal odyssey sheds some light, if not a clear-cut resolution.

It suggests that a good deal of the witnesses' hedging on what they'd seen the night of the murder was not new _ that jurors had heard it at trial. Davis' attorneys missed "opportunities" that might have changed the outcome of appeals.

Finally, executive clemency is meant to be a guard against unfair trials and shoddy defense work _ but that fail-safe failed here, critics say.

Mears, an associate professor at Atlanta's John Marshall Law School, feels that Davis didn't belong on death row for the 1989 slaying of Savannah police officer Mark MacPhail. But after reading much of the transcript and the "so-called affidavits," he concedes that a reasonable jury could have found him guilty of murder.

"I don't know of any other way that the system could have processed Troy Anthony Davis's case other than the way it has," Mears says.

A review of the case starts at the crime scene.

MacPhail was off-duty but working security at a Greyhound bus station the night of Aug. 19, 1989, when he rushed to the aid of a homeless man who was being beaten. The 27-year-old officer was shot twice _ once each in the face and chest _ and died in a Burger King parking lot.

Davis, 20, who had dropped out of high school to help care for an ill sibling, turned himself in four days later.

During the trial, Davis testified that he was with Sylvester Coles when his companion got in a scuffle with Larry Young over a beer. He said Coles began beating the man, and that Young's calls for help attracted MacPhail.

Davis testified he started walking away, then began running when he saw a police officer heading toward them.

"I didn't see the shooting, you know," Davis testified. His attorney, Robert Falligant, tried to persuade jurors that Coles was the real killer.

But Coles testified that it was Davis who had been arguing with Young, and that Davis hit the man in the head with a gun. Coles said he ran when he saw a police officer approaching, and then heard gunshots. He told jurors he never saw the shooter.

Coles, who has never been charged in the case, still lives in Savannah. No one answered the door at his apartment when an Associated Press reporter knocked this week. He has not changed his testimony.

There was no DNA evidence implicating Davis. No fingerprints. Not even a gun.

There were casings from bullets of the caliber that killed MacPhail. An expert from the Georgia Bureau of Investigation linked them to shells found at the scene of a non-fatal shooting a few hours earlier.

But firearms examiner Roger Parian could only say that the .38-caliber shell casings appeared to have come from the same gun.

"In this particular case, I couldn't unequivocally say it was the same gun," he testified.

Davis was convicted of both shootings. For MacPhail's slaying, he received the death penalty.

Protesters have made much of the notion that several key witnesses in Davis' 1991 trial recanted or significantly altered their statements, and that much of that has not been allowed into the record. But a review of the trial transcript supports what prosecutors have long held: That several of the these "new" statements largely rehash doubts and second thoughts the witnesses had already voiced in front of the trial jury 20 years ago.

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.

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."

Based on what was presented at trial, Davis never should have been sentenced to death, said his attorney, Stephen Marsh.

"Such incredibly flawed eyewitness testimony should never be the basis for an execution," he said Wednesday. "To execute someone under these circumstances would be unconscionable."

The assertions by Davis' legal team got the attention of the U.S. Supreme Court. For the first time in a half century, justices sent the case back to a lower court for a hearing on evidence that Davis's attorneys insisted would prove his innocence.

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During the hearing, Davis' attorneys did not present Coles, something University of Georgia law professor Donald E. Wilkes Jr. calls "the most astonishing blundering and goofing that I've ever heard of in a post-conviction case." U.S. District Judge William T. Moore chided Davis' defense for not calling Coles.

"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."

In an August 2010 ruling that made him a lightning rod for outrage, Moore concluded Davis' attorneys had failed.

"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."

Denny LeBoeuf, director of the American Civil Liberties Union's capital punishment project, says Moore set the bar too high, essentially requiring Davis to prove he was innocent.

"Most people couldn't prove that the day after the homicide, let alone 20 years later," she says. "And it's not the way our system works _ for a good reason."

Wilkes feels the judge committed an "institutional mistake" by not granting a continuance and allowing more time for Coles to be subpoenaed. 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.

Death penalty proponents say that even if a trial and subsequent appeals are unfair, there's always a fail-safe _ executive clemency. But Wilkes argues that even that has failed in this case.

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.

If this case has proven anything, Mears says, it's that the courts are ill-equipped to handle such recanted testimony. It has also shown the power of too many people with too little firsthand knowledge weighing in on matters of this gravity.

"What's happened in this case is it has moved out of the courtroom and into the arena of public opinion, and I think that's always a dangerous arena to try a criminal case, one way or another."


AP correspondent Russ Bynum reported from Savannah, National Writer Allen Breed from Raleigh, N.C.