Troubling Questions Surround Troy Davis Execution Set for Monday

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.

Comments

[xs10shl1]

Dear Mr. Scheck: Thank You so much for writing this. I have had this young man and his family on my mind all week. I even ask people if they've heard of Troy Davis and his plight. I've tried online to get the latest information and did find a petition site at which I did sign the petition. Of course, in the past, I've also responded to emails to write the GA. officials and done that, but sometimes they don't go through. Now, I am so worried because I've heard nothing. I do sincerely hope that Amnesty International and the Southern Law Center and ACLU people are working on this behind the scenes. It just sounds so WRONG that the officials in Georgia are not listening to reason.

Thanks for your erudite, caring words.
Sincerely in San Jose, CA

[MossyOak]

Thank you, Mr. Scheck, for your tireless efforts on the Innocence Project. In a place where the Confederate Flag is still flown, it's a sad fact that in some places different sets of laws apply for blacks and whites. We should bend over backward to make sure we've got it right. I'm glad to hear Troy got his stay. I hope the IP will fight to make sure he finally has a fair day in court.

[zanzig]

I thought he hasn't got a stay and is due to be executed next week? Didn't the Supreme Court refuse to grant an appeal?

[knowBuddhaU]

http://takeaction.amnestyusa.org/siteapps/advocacy/index.aspx?c=jhKPIXPCIoE&b=2590179&template=x.ascx&action=11330

The link takes you directly to the AI USA page where you send a letter to the Georgia Parole Board.

IMO, the timing of this sacrifice of Troy Davis on the altar of our criminal justice system stinks to high heaven.

[Scarabus]

What's happening in Georgia? What's the governor say?

[magicwanz]

Error in favor of guilt or innocence? Guilty or innocent until tried and proven? I think it's called Napoleonic Law? 'Innocent until proven guilty' is officially toast in Amerika. And if you are rich, white, male, and Christian you would probably never have to experience or even consider the consequences of these fundamental legal choices. My country is a shining example of little or nothing at this moment.

[billofgoods]

Their should be every much an outcry from the Republicans and Catholic Church ( I am from both) to abolish the death penalty. After 18 years of trials and appeals etc , what is one more ? This is way more important than Sarah Palins wardrobe or makeup .

[disintaGreatNation]

October , 2008

STATE BOARD OF PARDONS AND PAROLES
2 MARTIN LUTHER KING JR DR SE STE 458 BALCONY
ATLANTA GA 30334-4909

Re: Troy Anthony Davis, EF-284361
To The Board:
A small but significant doubt exists as to whether Troy Davis is guilty of the murder of Savannah police officer Mark MacPhail.
Most of the witnesses who testified against Mr. Davis have since recanted, as you know.
Those recantations have raised a small but significant doubt as to whether Mr. Davis killed Officer MacPhail.
Those recantations preclude the possibility that the execution of Mr. Davis can be based on the highest standard of proof. They have raised a small but significant possibility that the State of Georgia will commit a miscarriage of justice unless the execution of Mr. Davis is called off.
Based on the potentially exonerating evidence submitted by most of the witnesses against Mr. Davis, I respectfully request you to grant him clemency.
Thank you for allowing me to share my thoughts with you on this urgent matter.
Very truly yours,

[LanguagePolice]

As of 12:45 Central Time, CNN reports that the execution has been stayed. God Bless. Mr. Sheck, please tell him our thoughts and prayers are with him.

[lisakaz2]

I sure hope that is so. Someone has GOT to give this case a hearing. My heart breaks for this guy. Remember the Central Park Jogger case? The "wilding" convictions in connection to her were all bogus. I fear Mr. Davis not getting a day in court and dying in jail one way or the other because judges and prosecutors care more for conviction rates and image than they do justice. I pray for the Davis family.

[simonesimone]

I'm relieved and grateful ---but for how long? They stayed it several weeks ago--at the eleventh hour. How much more can he and his family take? There is sufficient doubt to justify another hearing. It's unfathomable.

[AnotherunhappyDemocrat]

Whatever happened to "reasonable doubt"?

[maryyooch]

"Whatever happened to "reasonable doubt"?"

This is racist Savannah, Ga. I believe, although I could be wrong, that he was tried before an all white jury. Also, Savannah is a wealthy town. Troy Davis is not wealthy and he is black.
It's just another reminder that racism is alive and well in the south.

[simonesimone]

Where is the media? I've mostly heard about this here and on Democracy Now. There should be a national outcry about this!!!

You can send an appeal to the Georgia Board of Pardons and Paroles through the Amnesty website. Keep scrolling down for the e-mail address. But I'm afraid it may be too little too late.


http://www.amnesty.org/en/library/asset/AMR51/116/2008/en/b1e960ba-9b9f-11dd-915d-6f2401d88cf3/amr511162008eng.html

[lisakaz2]

I tried once and GA rejected my email. I forget if it was via AI or not.

[crone44]

Rachel Maddow ran a piece on her show about Troy Davis back in Sept. I haven't seen anything since.

[simonesimone]

Thank god for Rachel!! We can always count on her!

[whit4brains]

Troy's story is heartbreaking. I can't imagine the stress he and his family are enduring through all of this. No one should be sentenced to d.eath in a case with NO physical evidence. This is just so wrong!

[TommyJr]

Unfortunately for his noble organization, Mr Scheck has almost no credibility with many people. His involvement in helping "save" O.J. Simpson has forever tarnished him. If Barry Scheck and Peter Neufeld really cared about these people, he would continue to use their money and legal minds to help the wrongly convicted; but leave the headlines and limelight to someone else.

[kraimie]

How much time have you taken out of your life, TommyJr, to work and care for "these people"? Unless it's an awful lot, it takes tremendous nerve to lecture those who have on what they would do if they "really" cared.

And if the fact that Mr Scheck was one of Simpson's lawyers means that he has almost no credibility with "a lot of people", then a "lot of people" apparently do not believe criminal defendants should have the rights afforded to them by the Constitution.

Oops, never mind... a lot of people do not in fact believe in any of the rights afforded by the Constitution. I just find it surprising when such people show up posting on HuffPo.

[GregJL]

They're the same people who believe that Obama is discredited because he knows someone who did something illegal 40 years ago.

[larry278]

Trolls get a liberal payment from generous paymasters when HP uses a troll's comment. After TommyJr gets his initial payment, he gets further payments based upon how long HP uses his comment. It is a good deal, liberal payments for reactionary screeds.

[Faithtoo]

What can we do to help stop this????????

[BlackSheep]

First, let me express my solidarity with Troy Davis and his family. I hope and pray the state will experience an epiphany before Monday. But I'm not very hopeful.

The State of Georgia will commit licensed murder if it executes Troy Davis on Monday. You can sign a petition to the Georgia judicial board (to at least hear the evidence before it murders Troy in cold blood) through Alternet or Amnesty International. I'd encourage all Georgians with two neurons that still fire in sequence and a heart for justice to sign this petition.

If Georgia murders Troy I plan to boycott that state and its products to the best of my ability for the rest of my life - and tell every one I know to do the same. This is a disgrace, an affront to human rights and another demonstration (if one was needed) of the continuing racism and brutality that cause civilised people around the world an in other parts of America to regard the South as a primitive, ugly and brutal place that masqerades behind a cloak of Christian piety. Revolting.

For some reason reading this made me think of the disgusting display of the Republican congress holding a special weekend emergency session in its attempt to stop the removal of Terri Shiavo's feeding tube. Where's the outrage for Troy?? Pro-life indeed -- what a bunch of hypocrites.

[cookieD]

I believe that Troy Davis is innocent and this is a travesty.