By now, hopefully many people have heard about Troy Davis, who is set to be executed Monday in Georgia for the murder of a police officer in Savannah. Investigations conducted since his 1991 conviction have produced disturbing affidavits showing that seven of the nine key witnesses who testified against Davis now recant their trial testimony, claiming they were coerced to lie by Savannah police. 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. The steady drumbeat of DNA exonerations in recent years -- 223 people who served more than 2,500 combined years in prison for crimes they didn't commit -- shows that eyewitnesses can get it wrong and jailhouse snitches lie. More than 75% of these wrongful convictions involved eyewitness misidentification; 15% involved jailhouse snitches. Because DNA revealed the truth in those cases, they didn't rely on recanted testimony, although there were recantations in some of them. But DNA testing is an option in just 10% of all criminal cases. When DNA testing cannot be conducted, innocent prisoners rely on other evidence -- including credible witness recantations - to secure their exonerations.
The Innocence Project, which I co-founded with Peter Neufeld in 1992, advocates for legislation that improves the accuracy of the criminal justice system -- protecting the innocent and helping apprehend the guilty -- by addressing the root causes of the problem. Georgia lawmakers are currently considering reforms to eyewitness identification procedures in the state, but any reforms will come too late too late to help Troy Davis and other people who have already been convicted. We need to reform our criminal justice system to prevent wrongful convictions, but our courts must also be able and willing to examine new evidence of innocence when it is discovered, even when it requires making credibility judgments about recanting witnesses.
If we've learned anything from all these DNA exonerations nationwide, it's that our system makes mistakes. Georgia officials should stop Troy Davis' execution and give him a full hearing -- before carrying out a sentence they can never reverse.
Barry Scheck is the Co-Director of the Innocence Project. For more information, go to innocenceproject.org.
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