Westchester Guardian/Jeffrey Deskovic.

Thursday, November 6, 2008

Jeff Deskovic

Troy Davis: An Ongoing
Saga Of Injustice

Troy Davis was sentenced to death for the murder of Police Officer Mark Allen MacPhail at a Burger King in Savannah, Georgia; a murder he has long maintained he did not commit.

In a letter written by Barry Scheck which was published in The Huffington Post, Scheck states, “Seven of the nine key witnesses who testified against Davis now recant their trial testimony, claiming they were coerced to lie by Savannah police.”

The reliability of those witnesses was characterized by Amnesty International as “containing inconsistencies even at the time of the trial.”

Scheck continues in his letter, “despite the seriousness of these allegations and the sheer number of recantations, Georgia courts and state officials have not only been unwilling to stay his execution, but they have even refused to hold a hearing with live, sworn testimony to assess the credibility of the recanting witnesses.

What most people don’t know is why Davis can’t get a full hearing on the new evidence -- and just how ridiculously far four judges of the Georgia Supreme Court have gone (there were three dissenters) to avoid reviewing post-conviction evidence of innocence.

The recantation of a witness alone does not and should not automatically result in a conviction being vacated -- recantation evidence is treated with caution by courts because, after all, the witness is saying he or she once lied under oath, so how can one be so sure they are not just lying again?

Nonetheless, many wrongful convictions have been overturned because a recanting witness, testifying in person and under oath before a judge, is found to be credible and the reason for the recantation – often a claim that the original trial testimony was coerced - is found to be persuasive. But in Georgia the recanting witnesses don’t get to testify because the state’s courts have created an extraordinary Catch-22 rule – the “purest fabrication” doctrine - that arbitrarily denies evidentiary hearings even when extremely persuasive recantation affidavits have been submitted.

The ‘purest fabrication’ doctrine means that post-conviction hearings don’t have to be held to evaluate the credibility of recanting witnesses unless the defendant can show, by extrinsic proof before the hearing is held, that the original testimony was absolutely false. The example cited by the Georgia Supreme Court in the Davis case is a recanting witness who testified at trial that he was an accomplice to a murder but can now show, to support his recantation, that he was incarcerated in another county at the time of the crime. Needless to say, in cases with that kind of extrinsic, objective evidence that the recanting witness gave false testimony, hearings are superfluous. In short, the ‘purest fabrication’ doctrine allows Georgia courts to duck inexcusably the most troubling, serious, and controversial recantation cases, the ones that cry out for judges to make fair and full assessments of witness credibility and claims of police coercion, if only to buttress
public confidence in the system.

What’s left of the evidence against Troy Davis inspires little confidence. There was no physical evidence linking him to the crime. The case turned on the testimony of two jailhouse snitches, who have both recanted, and seven eyewitnesses, five of whom recanted.

According to Amnesty International, “One of the two witnesses who has not recanted his testimony is Sylvester “Red” Coles – the principle alternative suspect, according to the defense, against whom there is new evidence implicating him as the gunman. Nine individuals have signed a davits implicating Sylvester Coles.”

Based upon that newly discovered evidence, Davis has gained the support of the National Coalition To Abolish the Death Penalty, Amnesty International, Georgians For Alternatives To the Death Penalty,

The American Civil Liberties Union, and the NAACP, who have helped to raise awareness of his case and generate grassroots support it.
The more people that learned about it, the more that got involved, and the movement has taken on a life of its own, gaining not just nationwide but worldwide attention.

Former President Jimmy Carter, Arch Bishop Desmond Tutu, Pope Benedict XVI, and former Senator and current Libertarian Presidential Candidate Bob Barr, and death row exoneree Kirk Bloodsworth, have all come out publicly for Davis. The Innocence Network- which is an association of nearly 40 member organizations, including the Innocence Project, dedicated to providing pro bono legal and investigative services to indigent prisoners whose actual innocence may be established by post-conviction evidence, filed a friend of the court brief in the Supreme Court of Georgia in support of Davis.

The following timeline is taken from Amnesty International:

July 12, 2007 – Amnesty International and Georgians for Alternatives to the Death Penalty hold a rally in support of Troy Davis.

July 16, 2007 – Georgia State Board of Pardon and Paroles issued a stay of execution for up to 90 days.

August 3, 2007 – Georgia Supreme Court agreed to hear Davis’ appeal for a new trial.

August 4, 2007 – Testimonies of injustice event in Savannah, GA.

March 17, 2008 – Georgia Supreme Court denied Davis’ appeal for a new trial.

A New York Times article wrote that the court, in a 4-to-3 decision written by Justice Harold Melton, held that sworn testimony at the trial was more important than the later recantations, noting that some of the witnesses had said only that they no longer felt able to identify the gunman.

“We simply cannot disregard the jury’s verdict in this case,” the Court said. The dissent, written by Chief Justice Leah Ward Sears, called the Court “overly rigid” in its consideration of new evidence in support of a retrial and said it had failed 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.”

The Chief Justice acknowledged that sworn trial testimony was generally considered more credible than later recantations made out of court. But, she wrote, “It is unwise and unnecessary to make a categorical rule that recantations may never be considered in support of an extraordinary motion for a new trial.”

“The claim that evidence in Davis’ favor was not sufficient to reopen his case is simply stunning,” said Larry Cox, Amnesty Internationals executive director. “In turning a blind eye to the realities of the case, the legal system has shrugged off the very notion of justice at every level, from Savannah to the U.S. Supreme Court.”

On July 10, 2008, the European Parliament issued a resolution against the death penalty in general and in favor of Davis, stating, a) Im regard to the case of Troy Davis, sentenced to death by the Georgia State Court in 1991 for the murder of a policeman and scheduled to be executed at the end of July 2008; b) 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; c) Whereas, on 4 August 2007, the Supreme Court of Georgia agreed to reconsider new elements casting doubt on Troy Davis’ guilt; d) Whereas, on 17 March 2008, the Supreme Court of Georgia denied Troy Davis a retrial, although the Chief Justice dissented; e) Whereas since 1975 more than 120 people have been released from death row in the United States, having been found innocent; f) Whereas, in the United States the power of clemency in cases where a capital sentence has been imposed exists as a failsafe against irreversible errors that the courts are unable or unwilling to remedy; g) Whereas New Jersey is the first US State to have abolished capital punishment by legislation since the reintroduction of the death penalty in the United States in 1972, citing the inescapable risk of executing those wrongfully convicted; 1) Calls upon those countries where the death penalty is imposed to take the necessary steps towards its abolition; 2) 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; 3) Appeals urgently to the Georgia State Board of Pardons and Paroles to commute Troy Davis’ death sentence; 4) Calls on the Presidency of the Council and the Delegation of the Commission to the United States to raise the issue as a matter of urgency with the US authorities; 5) Instructs its President to forward this resolution to the Council, the Commission, the Government of the United States, the Georgia State Board of Pardons and Paroles, and the Attorney General of Georgia

Sept. 11, 2008 - Activists from Amnesty and the NAACP take part in the Justice Matters rally for Troy Davis in Atlanta

Sept. 12, 2008 - Georgia State Board of Pardon and Paroles denied clemency for Davis (execution scheduled for Sept. 23)

Sept. 18, 2008 - Atlanta march to Ebeneezer Baptist Church.

Sept. 23, 2008 - U.S. Supreme Court issues a stay of execution pending the disposition of the petition for a writ of certiorari filed on Davis’ behalf.

Oct. 14, 2008 - U.S. Supreme Court declines to hear Davis’ appeal, effectively ending the appeals process.

Oct. 15, 2008 - Execution warrant is issued to commence on Oct. 27, which is the date the Department of Corrections sets for the execution.

Oct. 23, 2008 - Amnesty International activists take part in a Global Day of Action in 30 cities around the globe.

Oct. 24, 2008 – 11th Circuit Court grants stay of execution to consider new appeal.

According to an article in The Atlanta Journal-Constitution, Davis asked the 11th U.S. Circuit Court of Appeals for permission to pursue another round of appeals in federal court on claims he is actually innocent. Permission for a new round of appeals is required under the Antiterrorism and Effective Death Penalty Act of 1996.

According to the National Coalition To Abolish The Death Penalty, 140,000 petitions to the Parole Board and a letter to the Governor signed by over 100 Georgia clergy members were delivered. Shortly after that, on October 24, 2008 the Federal Appeals Court in Atlanta handed up its decision that stayed the execution of Davis, who was scheduled to be put to death by lethal injection. “Upon our thorough review of the record, we conclude that Davis has met the burden for a stay of execution,” the Court said in a ruling issued by Judges Joel Dubina, Rosemary Barket and Stanley Marcus.

The Court said the stay of execution is conditional. Davis must make a showing he can meet the “stringent requirements” to pursue another round of appeals, the decision said. The Court directed Davis’ lawyers to file a legal brief on their arguments within 15 days. The State Attorney General’s Of-fice has another 10 days to respond.

Davis’ lawyers expressed relief and jubilation over the court’s decision. “This is the first step toward a court hearing to consider the new evidence - something we have been asking for almost a decade now,” attorney Jason Ewart said.

At many rallies and demonstrations around the country, activists obtained petition signatures. At other times, activists worked to obtain signatures without a formal event. As The Guardian went to press, a total of 300,000 people had signed petitions. Demonstrations had taken place in Milan, Italy, Montreal, Canada, Paris, France and Belford in England, many in front of United States embassies throughout the world.

Commentary

One of the favorite phrases that prosecutors sometimes use to deceive the public after a wrongful conviction has been obtained is “The evidence of guilt is overwhelming.” Borrowing much from that phraseology while still maintaining accuracy and integrity, there is overwhelming evidence of Troy Davis’s innocence.

Firstly, it strains credulity that seven witness’, with nothing to gain, will all falsely claim to have been coerced by police. Rather, that is more consistent with patterns that have been found in other cases of wrongful conviction which involve police coercion: usually when that tactic is utilized, it is rarely confined to simply one witness.

Secondly, nine individuals who implicate an alternative suspect is to me very powerful. It is unheard of that that many people will falsely implicate an alternative suspect while someone remains in prison already convicted of the crime. I would like to further point out that defendants have been convicted by prosecutors with far fewer witnesses than that.

It would be virtually impossible to argue that either set of evidence, independently, did not conclusively prove Davis’ innocence. Taken together, if such a thing is even possible, the proof becomes even stronger if such a thing is even possible.

It is worth repeating, in light of the two jailhouse snitch testimonies against Davis, that witnesses who receive benefits in exchange for testifying, referred to as ‘incentivized witnessing’, have been the cause of wrongful convictions in 15% of the now 223 DNA proven wrongful conviction cases.

In a previous article I reviewed, albeit briefly, the many cases in which the person pointing the finger at the defendant was himself the perpetrator. That seems highly likely to be the case with Sylvester Coles, who points the finger at Davis and has not recanted.

I don’t know how Davis’ prosecutors can sleep at night. It is clear that they are in a win at all cost mode. Similarly, the starkness with which the Georgia State and Federal Courts, along with the United States Supreme Court simply haven’t cared about innocence. By any objective standard, what more does Davis have to do to win his case?

Additionally, the “purest fabrication doctrine” that Georgia has is wholly inconsistent with justice. I believe that witness recantation testimony should be evaluated the same way that evidence at any stage of a case is. In fact, I believe that in most cases the recanted testimony should be given more weight because with the passage of time and the circumstances under which false testimony is given because of various pressures and circumstances are often lifted years later.

There is a such thing as a conscience going to work on a person over time and their wanting to come clean. These Georgian and federal law does not take this into account. The fact that all of this is taking place while Davis’ life is in the balance, is both sickening and frightening, and makes the situation worse. There have been three different occasions when he has come within days or hours of execution. I cannot imagine how horrific that is for him and his family psychologically. Similarly, it makes me want to cry when I think about how traumatizing that must be. Yet, I realize that there is nothing in my background, nor within anyone else save for those few who have come within days or hours of execution, that would enable me to know what that feels like.

Although this case is still playing out, there are profound lessons for us to learn. I would like to share my thoughts on some of them. The first is that grassroots efforts and getting publicity for ongoing cases of wrongful conviction-tactics usually eschewed by defense attorneys, can be effective and are not wastes of time.

What goes on outside of the courtroom, in many ways, can, and often does, impact what goes on inside of it. It is obvious that without the grassroots support, national and international attention and press that this case has generated, Davis would not have received this third stay of execution.

Therefore many defense attorney’s would be wise to rethink on this topic. Similarly, concerned citizens should realize that working together and using our collective voices can make a difference. The second is that we need to do away with the death penalty, because of the grave risk of executing innocent people. The need for a mechanism of review independent of courts and the governor giving a pardon, is clear, for they are neither doing the right thing in this case nor, most of the time, have their counterparts across this country.

Thirdly, as Troy Davis himself communicated to his supporters, when it appeared certain that he would be executed, we should never forget about the other Troy Davises that are wrongfully convicted whether sentenced to death or not, and that efforts on their behalf should be just as strong.

Fourthly, the way that technology was used in order to communicate, raise awareness, mobilize and organize, was a powerful model that should be repeated. List servers were used to circulate information; MYSPACE was used as concerned citizens communicated with others they had met through it, both through emailing and posting bulletins, while there was also an ‘official’ Troy Davis MYSPACE page; You-Tube was utilized heavily as 444 videos about him were posted; The Georgia Board of Pardon and Paroles were both flooded with text messages and emails; and online petitions were utilized.

Lastly, every time injustice is perpetrated in this country, our national reputation takes another hit, which reduces our effectiveness when we insist that other countries observe human rights. How must our judicial system must look to the rest of the world!

The saga of the injustice of Troy Davis’ case continues to play out, and his life and liberty are very much in peril and in question.

I encourage all people of conscience to get added to the list servers of the organizations that I previously mentioned to stay up to date on this case and to participate in future efforts on his behalf, doing the small things that we are all able to do.