As the lead prosecutor in the trial of Troy Davis, I can say that the case has been badly mismanaged by one of our most important institutions, one impressed with a profound public trust. And while the criminal justice system isn’t irretrievably broken, it is very badly damaged. People are right to wonder how the system could put to death a man with so much doubt remaining. How is this to be explained?
There are two Troy Davis cases. Davis I was decided on the facts in courts of law, where he was fairly convicted and sentenced, and his appeals were denied.
Davis II is still under way as a public relations campaign where his innocence is proclaimed on the strength of a doubt that is manufactured and false, the overarching purpose being to defeat the death penalty. The mantra has become no physical evidence, and 7 out of 9 eyewitnesses recanted. Neither is true. There was physical (ballistic) evidence, and persuasive circumstantial evidence. Some of the so-called recantations were not recantations at all, others were flatly unbelievable, and others were subsequently abandoned by the defense in a federal evidentiary hearing.
Still, for 15 years nearly every news report of the Davis case continued to state, as if it were fact, that seven of nine eye witnesses recanted. This without mentioning that the “recantations” had been thoroughly discredited. No wonder doubt flourished.
In Davis I, he was tried before a jury of seven blacks and five whites for the cold-blooded midnight murder of a police officer who was rushing to the aid of a homeless man being beaten in a bus station parking lot. The trial was open and transparent. It was grounded in fact. It was contemporaneous with the crime; the witnesses recollections were still fresh. Under vigorous cross examination each witness was challenged to recant his immediate testimony, given under oath was he coerced by police, was the scene chaotic, was the lighting poor? Ballistics evidence established that shell casings from an event earlier in the day (in which Davis was later convicted of shooting another man in the face) matched casings recovered from the scene of Officer MacPhail’s murder. Circumstantial evidence included the fact that Davis immediately fled to Atlanta and had to be coaxed back by his family. The jury took only a few hours to find, unanimously, that Davis was guilty beyond a reasonable doubt. They took only a few more hours to impose, unanimously, the death penalty. The murder occurred in 1989. The trial took place in 1991. The Georgia Supreme Court upheld the conviction and sentence in 1993. The U.S. Supreme Court then denied Davis application for review. In any ordinary case, that would be pretty much the end of it.
But this has been no ordinary case. Having lost on facts and law, Davis advocates launched a campaign of misinformation, outright lies, manipulation and appeals to passion which was to last for fifteen years. I have come to think of it as The Doubt Campaign. What compounds its dishonesty is that they used the courts as its vehicle. If we have created our courts as a dispassionate forum for the discovery of truth and disposition of justice, this campaign has been a fraud upon those courts and, by extension, upon fundamental precepts of our civilization. This is the principal feature of Davis II.
As the foundation of Davis II, the lawyers procured statements of recantation from various witnesses who had testified at trial. When those were legally unavailing, the unambiguously anti-death penalty campaign began in earnest. So let’s look at the recantations and the court systems reaction to them.
Post-conviction witness recantations are usually obtained like this: Gently and with empathy, the witness is reminded of his shared responsibility for the death penalty in the first place, the possibility of being mistaken way back then, the long incarceration already suffered, the worthiness of the since-mellowed defendant, the let’s-move-on sentiment in the community, the agreement of the other witnesses, and the fact that now he (alone?) can prevent the state from killing this man. All the witness need do is sign a piece of paper.
Obviously this would be coercive. Which would make it doubly ironic where the recantations cite coercion by police. Perhaps the lawyers didn’t do it this way. Yet they’ve never volunteered to tell us, to establish the reliability of inherently suspect statements, and our truth-seeking media apparently never thought to ask either the lawyers or the witnesses how it was done. In any case, I know personally of one witness who recounted having been hounded mercilessly for such a recantation.
We are led to this point: In contrast to the testimony that convicted Davis, these statements were made outside of court; in what secret corners they were given, with what incentives or motives, under what duress, at whose initiative, we will never know. We are asked to accept them at face value. Incredibly, thousands do. Many even give more weight to the recantations than to sworn testimony in court either at trial or in a 2010 hearing (described below) where they fell apart.
What is their face value? Here’s an example. There were four people who were eye witnesses in the sense of specifically identifying Davis in testimony at trial as the man they saw shoot the officer. One of these refused to give a recantation; one gave an affidavit of recantation which she would not swear to and which did not in fact contradict her trial testimony; another one’s “recantation” didn’t actually contradict his trial testimony; and the fourth gave a direct recantation, but when she was later available to testify in person at the 2010 hearing Davis’ lawyers declined to call her as a witness — she would have been subject to cross examination. (Other witnesses had identified Davis in terms of the shooters clothing, participation in the original altercation with the homeless man, or subsequent confessions made by Davis. Its noteworthy that these categories of witnesses dont fall readily within the scope of the unreliability of eyewitness testimony weve heard so much about from the academy recently.)
In any event, this process of recantation-collecting didn’t begin until five years after the trial and then continued for seven more years. Leave aside why it took so long; when they got these statements, did Davis lawyers run immediately back to the trial court urgently pleading for a new trial on the basis of this newly discovered evidence? No, they didn’t. Not until eight days before the first scheduled execution in 2007. The lawyers clearly saw their recantations as being more valuable as a device for delay than as substantive exoneration.
Davis recantation evidence, has had 14 appearances before 6 courts , including 5 trips to the U.S. Supreme Court, and at 3 clemency hearings. Some “railroad.” Surely this case ranks among the most thoroughly scrutinized criminal cases, during its pendency, in modern times. In 2009 the U.S. Supreme Court, in an extremely rare move, ordered the federal court in Savannah to conduct an evidentiary hearing in which Davis was to have the opportunity to present any and all witnesses he might choose, to give live testimony. Let them recant, blame someone else…anything he wished.
In 2010 that hearing was held. His lawyers made a mockery of the opportunity. They presented four of their six recantation witnesses (the seventh, who wouldn’t swear to hers had died). Judge William Moore carefully analyzed all of their testimony and the out of court recantations, individually and taken together. He concluded that Davis case was largely smoke and mirrors, and that “Mr. Davis is not innocent.”
As an example of the cynicism and manipulation that have infected Davis II since the beginning, there is the blame Coles diversion, which also came to a head at the 2010 hearing. Sylvester Coles is a black male who was involved in the altercation with the homeless man in the parking lot. Davis supporters including those who have chosen to make the case a racial issue (stop the legal lynching!) — while dismissing the weight of evidence against Davis, have sought to condemn Coles on far less evidence. Eventually they found a woman who was purportedly willing to say Coles confessed to her. At the 2010 hearing they brought her in as a witness, but they manipulated the proceedings in a way guaranteed to make her testimony inadmissible. Thus the lawyers got the best of both worlds: without subjecting her to cross examination they could tell the world about their valuable exculpatory witness whom the court wouldn’t hear. There were three other witnesses who implicated Coles at least marginally. The lawyers only bought in two for the 2010 hearing. One was the woman just mentioned. The other had a record of 76 arrests since 1990 for cocaine, obstruction of justice and tampering with evidence, and took the occasion to tell his third version of the facts regarding Coles.
Davis filed an application to appeal the judges 172 page ruling to the U.S. Supreme Court. It was rejected. He then had his final review by the bi-racial Board of Pardons and Paroles, which denied clemency. The bi-racial Georgia Supreme Court unanimously rejected an appeal. Hours before the execution, Davis’ lawyers filed even more incredible claims: they submitted to a superior court judge a second test of the ballistics, performed in 2007, which they claimed refuted the earlier test in evidence at trial. In fact, it confirmed the first results, and the judge so ruled. The U.S. Supreme Court declined to grant a stay. On September 21, 2011, twenty-two years after he murdered Officer Mark MacPhail, Davis was executed by lethal injection.
A critical function of the courts is to buffer and supplant the howling of the mob, whether it wishes to punish the innocent or free the guilty. In doing this, the only currency of the criminal justice system is its credibility. The American criminal justice system is the fairest to the accused that has ever existed on this planet. It is also resilient; it should and it can take legitimate criticism of its admittedly numerous deficiencies. Indeed, it has a long and consistent history of listening to, acknowledging and reforming consistently with honest criticism. Too slowly for some, to be sure, but still…. The operative word here is honest, and the Doubt Campaign has missed that mark flamboyantly. To criticize the courts fairly is constructive. To gratuitously erode their credibility is destructive and repugnant.
Not only have thousands of presumably well-intentioned people been gulled by the Doubt Campaign, but also a number of worthies who should know better. Drawing just from a recent Atlanta Journal-Constitution article, Stephen Bright (Yale) is all aflutter because there have been questions for almost a decade, the whole world knows about the case, Davis has lots of supporters, and some of them are really, really prominent. Pope Benedict, probably not heretofore widely recognized as an expert on Georgia’s evidentiary law, and unwilling to restrict himself to moral teachings, declared himself on the matter of sufficiency of evidence. Bob Barr and William Sessions are among multiple sophisticated interlocutors willing to trade their credibility on the manifestly false claim of no physical evidence. Jimmy Carter has put the zealots fuzzy thinking (and their lack of actual concern for Troy Davis) on full display by declaring that theres doubt about his guilt so he should be punished by a life sentence.
I am no fan of the death penalty. If it were abolished tomorrow, I’d be happy. Its rationally possible to oppose the death penalty as a matter of social policy and still assert that, as applied to Troy Davis on these facts, it is abundantly fair. But I also think a sufficient case for its abolition can be found in the paradox of delay: we take such care to give the accused every benefit of fact and law that it takes us forever to finish. Not only is this arguably cruel to the accused, it is indisputably cruel to his family and the family of the victim. A system that has made itself powerless to give effect to its judicial pronouncements in something less than decades should get out of the business of making such pronouncements.
The Doubt Campaign notwithstanding, I know and respect that there are thoughtful people who oppose the death penalty generally, and in this case in particular. It matters not to me whether they ground their objection in moral perceptions (absolute law of God or nature) or ethics (relative degrees of cruel and unusual) or specific facts (shades of culpability). But I have only contempt for opposition that relies on distortions of fact to advance an argument based on moral absolutes. The debate should be closed to moral narcissists who hold themselves to be exempt from the bonds of truth and the rule of law.
For the past fifteen years whatever the Davis advocates claimed, no matter how outrageous, has been reported by the news media with little if any attempt to report the other side, which was amply laid out in court records. I admit I didn’t make it easy on reporters, because professional ethics demanded that I avoid public comment on the merits of a pending case. Of course most criminal cases are pending for months or a few years; this one has gone on for 22 years. It’s over now, though; thus I have undertaken here an explanation of the real and the unreal Davis cases which, sadly, appear to be one and the same. I fear that The Doubt Campaign reached a critical mass such that the appearance of doubt has morphed into doubt itself, that the integrity and credibility of the criminal justice system has been irrevocably sullied, and that in future debates about the death penalty the very invocation of the name Troy Davis will be sufficient to cut off rational discussion. And it has all been so unnecessary.