Troy Davis has been executed by the state of Georgia after 22 years on death row. Before his death he had become a cause célé¨bre, and—unlike some such cases—it was with good reason.
I had never heard of him before a day or two ago, but a quick reading up on the facts of the crime of which he was accused, and his conviction and appeals, has convinced me that, although the truth will probably never be known, there was more than enough doubt about his guilt to warrant a commutation of his sentence to life imprisonment, and probably a new trial.
You may disagree with what I say; Ann Coulter certainly does, for example, although Bob Barr and William Sessions (former FBI chief under Reagan, Bush I, and Clinton) think that Davis should not have been executed. The holes in the case against Davis are just too large.
To summarize: there were two shootings in the same evening, perhaps by the same perpetrator. The first was at a party [correction: actually, it was on leaving the party in a car], and the victim lived; the second resulted in the murder of a policeman (Mark MacPhail) who had attempted to intervene in an altercation in the parking lot of a Burger King. It was the latter for which Davis received the death penalty from the jury, at a time (1989) in Georgia when there was no option of sentencing him to life without parole.
The evidence at the trial seemed fairly powerful at the time, although subsequent developments have made it less so. The prosecution produced seven witnesses who fingered Davis as the cop-killer, plus two jailhouse-snitch cellmates who said Davis had confessed to them [correction: one was a jailhouse snitch and one a neighbor; both have since recanted and said Davis never confessed to them] (the latter type of witness is notoriously unreliable, with motivation to implicate a person either as a grudge or to gain favor with the justice system, or both; in the Davis case they have both since recanted and said they heard no such confession from him). The other, seemingly strong, witnesses against Davis either had initially shaky elements in their testimony (one of the strongest, for example, initially said he didn’t see him well enough to identify him, and yet somehow was able to do so at the trial, two years later) and/or have subsequently recanted in various ways, mostly through saying they had been coerced and frightened by the police. Many were young teenagers at the time of the shooting.
One of the few witnesses who has not recanted is the man who was with Davis that night at the killing, Sylvester (“Redd”) Coles. Coles implicated Davis as the shooter in MacPhail’s murder almost immediately, but since there was an absence of forensic evidence (the gun was never found), there is no reason to believe that Coles himself was not actually the killer, which is what Davis alleged. So you have a fact situation that is highly unfortunate: the heinous killing of a policeman, undoubtedly committed by one of two people (Coles or Davis); a crime scene lacking enough evidence to convict either without eyewitness testimony; a death penalty verdict (irrevocable and irreversible once carried out); and witnesses who have mostly since recanted.
My sense is that the police were so outraged by the killing that they wanted to make sure they got someone, and the case against Davis was stronger than that against Coles (at least in part because of Coles coming forward so soon to implicate Davis). Several witnesses have said it was Coles who did it, but this was a case in which both possible perpetrators resembled each other in height and weight and race, and where the scene was dark, the situation chaotic, and identification inherently difficult.
One thing that does not seem to be true—even though it has been widely alleged—is that racism played much of a part here. Yes, the victim was white, and Davis was black. But so is Coles, and so were seven of the jurors and most of the witnesses. It just doesn’t seem to have mattered in this particular instance.
Unfortunately for Davis, despite the multiple recantations the governor of Georgia is not allowed to commute death sentences, and the appeals courts set the standard of proof for overturning the jury verdict very high.
Here’s Barr on the subject, and I am in agreement:
But the federal judge set the bar much higher than the Georgia Board of Pardons and Paroles. Finding ”” astonishingly for the first time ”” that executing an innocent man is unconstitutional, the court then required Davis to prove that he was innocent.
Proving one’s innocence is a far more difficult standard than establishing doubts as to one’s guilt. In fact, proving actual innocence has the effect of flipping our system of criminal jurisprudence on its head: Instead of a presumption of innocence and a requirement by the state to prove guilt.
In Davis’ evidentiary hearing the court presumed guilt and required the condemned to prove his innocence. Even the judge deemed the standard “extraordinarily high.” Proving one’s innocence of a crime is a potentially insurmountable task ”” one Davis was unable to meet. But while Davis was unable to “prove” his innocence, he established considerable doubts as to his guilt, prompting the judge to acknowledge that the state’s case against him was “not ironclad.”
…[I]mposing an irreversible sentence of death on the skimpiest of evidence will not serve the interest of justice.
And it has not. Barr is, as he says, a “longtime supporter of the death penalty.” But the death penalty is inappropriate for a fact situation such as Davis’s.
As for Ann Coulter, who has been very much in favor of Davis’s execution, her arguments are misleading. She leaves out some very important facts when she writes:
Among the witnesses who did not recant a word of their testimony against Davis were three members of the Air Force, who saw the shooting from their van in the Burger King drive-in lane. The airman who saw events clearly enough to positively identify Davis as the shooter explained on cross-examination, “You don’t forget someone that stands over and shoots someone.”
Sounds convincing, doesn’t it? And it is, until you read this:
One [witness] who has not recanted his testimony is…Steven Sanders. He was one of a number of members of the US Air Force who were in a van at the drive-in section of the Burger King restaurant at the time of the crime. In a statement given to police shortly after the shooting, Stephen Sanders said that he had seen a “black male wearing a white hat and white shirt, black shorts” shoot the officer and then run off with another person who Sanders thought was wearing a “black outfit”. He said that he “wouldn’t recognize them again except for their clothes”. However, for the first time, two years later, at the trial, Stephen Sanders identified Troy Davis as the gunman…Two of his Air Force colleagues, Daniel Kinsman and Robert Grizzard, who were with Sanders at the time of the crime, have signed affidavits standing by their statements given to the police that they could not identify the gunman. Robert Grizzard has said that, contrary to what he mistakenly testified at the trial, he could not then and still could not recall what the gunman was wearing. For his part, Daniel Kinsman has testified that he remains convinced that the gunman was firing the gun with his left hand. Troy Davis is right-handed.
Doesn’t sound quite as powerful when put that way compared to the way Ann Coulter tells it, does it (including the fact that Sanders disagrees with all the other witnesses about the color of Coles’s clothing that night)?
Coulter manages to write her entire 1000+ word essay without even mentioning Coles and his role as witness, except to say that there were two men at the crime scene, one in a white shirt and one in a yellow shirt. Coulter also writes that “Not one witness said the man in the yellow shirt pistol-whipped the vagrant or shot the cop.” But this is disingenuous of her; after all, why would they? It was Davis who was on trial, not Coles (who had become one of the prosecution’s star witnesses), and it was Davis the police were framing their case against when they interrogated potential witnesses. If police coercion and intimidation were used to shape their testimony, the results certainly wouldn’t have included the idea that it might have been Coles who actually was guilty. And of course we can’t expect Coles to have implicated himself.
Coulter also conveniently omits this sort of thing, which describes some of the testimony at a 2010 hearing where Coles was fingered by some as the guilty party, and why such testimony was excluded:
Anthony Hargrove testified that Redd Coles had admitted the killing to him. The state’s lawyers described Hargrove’s testimony as hearsay evidence; Judge William T. Moore permitted the evidence but stated that unless Coles appeared, he might give the evidence “no weight whatsoever.” Another witness making a similar statement was heard, but a third was rejected by Judge Moore as the claims were inadmissible hearsay because Coles was not called as a witness and given the opportunity for rebuttal. Moore criticized the decision not to call Coles, saying that he was “one of the most critical witnesses to Davis’s defense”. One of Davis’s lawyers stated that the day before they had been unsuccessful in serving a subpoena on Coles; Moore responded that the attempt had been made too late, given that the hearing had been set for months.
I don’t know about you, but I am extremely uncomfortable with executing a man based on this sort of record. I also believe that requiring a person to prove his or her innocence is an unconscionably high standard. That doesn’t mean that Davis wasn’t guilty; I have no idea whether he was or wasn’t. But he does not have to be have been innocent to convince me that his execution was wrong (even if legal), and that it will serve to set back the cause of those who believe in the death penalty, as well as the cause of justice.
[ADDENDUM: And here John Hawkins rails against bleeding-heart liberals who love cop-killers such as Davis. Of course, it serves Hawkins’s purpose to ignore the fact that a lot of people who argued that Davis should not be put to death are not liberals and do not oppose the death penalty. What’s more, Hawkins disingenuously repeats Coulter’s sophistic argument about the number of witnesses in the Davis trial [emphasis mine]:
Of course, despite the incredibly slanted accounts you may have read, Troy Davis is not one of these mistakes. More than a dozen courts looked at the trial and came to that conclusion — and no wonder. Davis shot a cop to death in public. There were 34 witnesses at the trial. Some of them were strangers. Some of them were friends of Davis. To this day, there are several people, some strangers and some former friends, who said they saw Davis shoot Officer Mark MacPhail and haven’t recanted.
Talk about “incredibly slanted!” The appeals courts did not rule on Davis’s guilt or innocence in the same way the trial had. They required that Davis prove his innocence, an almost impossibly high standard, especially because of lack of forensic evidence. Then there’s the statement about “34 witnesses.” Does Hawkins not imply here that there were 34 eyewitnesses who identified Davis at trial? There were not (the research I’ve done has indicated that 34 is the number of witnesses of all sorts whom the prosecution called at the trial), and almost all the eyewitnesses who fingered Davis have recanted. Plus, the main “friend of Davis” who fingered Davis was possible-murderer Coles, whom Hawkins, like Coulter, does not mention was a witness. And I’ve already described some of the flaws in the testimony of those few other witnesses like Sanders, who have not recanted.)
If Hawkins and Coulter and others think Davis is guilty and that his execution was just, fine. But don’t distort the record or omit obvious and important facts in order to make your argument, which is what I have seen from every article I’ve read so far from the pro-Davis-execution camp. I don’t like this sort of sophistry when it’s done on the left, and I don’t like it any better when it’s done on the right. Mistakes are one thing, but this looks like purposeful shaping of the record to make a polemic argument.]
[ADDENDUM II: Ace weighs in on the matter of the shirts.]
[ADDENDUM III] Several commenters have put forth the idea that Davis was guilty because blood was found on the shorts he wore that night; some bloggers have alleged it was Officer MacPhail’s blood. Since this is one of those lies that get halfway around the world before the truth has a chance to put its boots on, I thought I’d set the record straight by quoting Judge Moore, a district judge who ruled on Davis’s case in 2010:
The State introduced evidence regarding Mr. Davis’s “bloody” shorts. (See Resp. Ex. 67.) However, even the State conceded that this evidence lacked any probative value of guilt, submitting it only to show what the Board of Pardons and Parole had before it. (Evidentiary Hearing Transcript at 468-69.) Indeed, there was insufficient DNA to determine who the blood belonged to, so the shorts in no way linked Mr. Davis to the murder of Officer MacPhail. The blood could have belonged to Mr. Davis, Mr. Larry Young, Officer MacPhail, or even have gotten onto the shorts entirely apart from the events of that night. Moreover, it is not even clear that the substance was blood. (See Pet. Ex. 46.)]
