Of Smoke and Mirrors
This evening at 7 PM, barring last minute intervention by the courts or reprieve by the state board of pardons and paroles, Troy Davis will be executed in Georgia's death chamber. This case has been reviewed and appealed for twenty years, but it has suddenly taken on celebrity status with the national media today. Even FOX News has gotten in on the act to tout the supposed questions that seemingly now exist concerning Troy Davis conviction and sentence. Questions not the least of which seem to be, the supposed recantation of the testimony of seven witnesses and the lack of a murder weapon.
Troy Davis was convicted in 1991 of murdering Savannah police officer Mark MacPhail. The jury that heard the case was comprised of seven black and five white jurors. The jury took less than two hours to arrive at their verdict after seeing the evidence and hearing the witnesses.
During the trial a number of witnesses testified to their incriminating observations of Troy Davis the night of the murder and their subsequent conversations with Troy Davis after the MacPhail murder. Two of those witnesses testified that Troy Davis admitted to them that he had shot and killed officer MacPhail the night of the murder.
The Georgia Bureau of Investigation matched the shell casings from officer MacPhail's crime scene to those recovered from another victim that Davis had shot earlier on the evening. There is no question or doubt that Davis shot the other man, but because he disposed of the weapon after murdering officer MacPhail, there is now an allegation that the evidence doesn't support his conviction of the MacPhail murder.
It seems that once again on the eve of an execution, there is a large cadre of celebrities and those involved in the anti capital punishment movement, who have garnered national media attention via their use of publicity and smoke and mirrors to attempt to prevent the Davis execution.
Their contention being that there is no gun to support the evidence and that seven of the original witnesses against Troy Davis have now changed their statements. In actuality what these witnesses have done is to now state that they were supposedly coerced by police and prosecutors into making their written statements twenty two years ago. Yet two years after they made those statements, (during the first rounds of the Davis appeal and review of evidence) they each swore in affidavits that their statements were true as written when they signed them. Yet now, they allege that the "police typed the statements and they never read what they signed." Therefore, they supposedly had no idea, either then, during the trial or in the twenty odd years since, that the police and prosecutors had some how misstated or misconstrued their statements.
That would seem to be a major problem for those seeking to have Troy Davis' death sentence commuted. It would seem to be the ultimate legal game changer literally screaming for the sentence to be set aside and commuted to life. Except for a few facts that are being overlooked of course.
First, it is common practice for police typist to type the written statements of all witnesses to a homicide. The statements are then presented to the witnesses for reading and review prior to their signing. If anything is wrongly stated or in error, the witness can request that it be corrected. If the person is incapable of reading and writing, the statement is read to them and the same thing applies.
The problem with an allegation that the witness statement is inaccurate or does not reflect what the witness actually said, (at this late date) is that while a mistake can be made concerning syntax or punctuation or even word usage, the material facts of the statement don't mysteriously change to a complete recantation of what was originally reported or stated. Especially in light of the fact that at least two years after the fact, the witnesses involved in Davis prosecution each swore that what they had signed as their official statements, were true and accurate accounts of what they witnessed, heard and reported to police concerning the conviction of Troy Davis.
For anyone remaining unconvinced and wishing to review the appellate process
Click Here
And from the man who knows the case the best.
The District Attorney who convicted Troy Davis spoke in 2008
Lawton: Troy Davis verdict correct Posted: October 18, 2008 - 11:30pm
By Spencer Lawton Jr.
Many people are concerned that an innocent man is about to be put to death. I know this, and I understand it. I am not likewise concerned, however, and I want to explain why. The only information the public has had in the 17 years since Troy Davis' conviction has been generated by people ideologically opposed to the death penalty, regardless of the guilt or innocence of the accused.
While they have shouted, we have been silent. The canons of legal ethics prohibit a lawyer - prosecutor and defense counsel alike - from commenting publicly, or engineering public comments, on the issue of guilt or innocence in a pending criminal case. Now that the U.S. Supreme Court has ruled, the case is over, and I can try to tell our side.
First , Davis' advocates have insisted that there was no physical evidence in the case. This is not true. Crime lab tests proved that the shell casings recovered from the shooting of Michael Cooper at a party earlier in the evening were fired from the same weapon as the casings recovered from the scene of Officer Mark MacPhail's murder.
Davis was convicted of shooting Cooper. And, while it isn't physical evidence, consider the "testimony" of Officer MacPhail himself: When he comes to the rescue of a homeless man being harassed and pistol-whipped, the officer ran past Sylvester Coles on his way to catch Davis. This makes Davis the only one of those two with a motive to shoot Officer MacPhail. Yet Davis' lawyers argue to condemn Coles for shooting MacPhail. Why would he?
In fact, Davis' advocates are eager to condemn Coles based on evidence far weaker than their characterization of the evidence against Davis. Where is their sense of fairness? This is the same Sylvester Coles who promptly presented himself to police, and who was advised by counsel to tell all that he knew - with his lawyer not even present. Which he did. No lawyer who even faintly suspects a client of criminal conduct would let him talk to the police without counsel.
Second , they claim that seven of nine witnesses have recanted their trial testimony. This is not believable. To be sure, they've produced affidavits; a few handwritten and apparently voluntarily and spontaneous, except for concluding with "further the affiant sayeth not." Who wrote that stuff? The lawyers, perhaps? The law is understandably skeptical of post-trial "newly-discovered evidence." Such evidence as these affidavits might, for example, be paid for, or coerced, or the product of fading memory.
If every verdict could be set aside by the casual acceptance of a witness's changing his mind or suggesting uncertainty, decades after the event, it is easy to see how many cases would have to be tried at least twice (perhaps ad infinitum). Thus the law sets strict standards for such "newly discovered" evidence. For example, it cannot be for a lack of diligence that the new evidence was not discovered sooner, and the defendant is expected to present that evidence at the earliest possible time.
Yet these affidavits were not offered in a motion for new trial until eight days before the first scheduled execution in 2008 seventeen years after Davis' conviction. If this affidavit evidence was so compelling, why didn't they rush to seek a new trial in 2003 when they had most of the affidavits they now rely upon? Or collect those affidavits earlier?
Each of the now-"recanting" witnesses was closely questioned at trial by lawyers representing Davis, specifically on the question whether they were in any way pressured or coerced by police in giving their statements or testimony. All denied it. And while an 80 percent recantation rate - the first in the history of the world ? - may seem to some as overwhelmingly persuasive, to others of us it invites a suggestion of uncanny coincidence, making it very difficult to believe.
Third , they claim that their "newly discovered evidence" (i.e., the recantations) hasn't been adequately considered by the courts. This is not true. The affidavits, in various combinations, had already been reviewed by 29 judges in seven different types of review, over the course of 17 years, before Tuesday's ruling by the U.S. Supreme Court. The state Parole Board halted the execution in 2007, saying they wouldn't allow a possibly innocent man to be executed. Then, after more than a year of reviewing all of the evidence on both sides, and hearing from every witness Davis' lawyers presented - including Davis - they refused to grant clemency.
The trial was fair. Davis was represented by superbly skilled criminal defense lawyers. He was convicted by a fair jury (seven black and five white). The post conviction stridency we've seen has been much about the death penalty and little about Troy Davis. The jury found that Davis, after shooting another man earlier in the evening, murdered a police officer who came to the rescue of a homeless man Davis had beaten.
Mark MacPhail had never even drawn his weapon.
A more complete discussion of these - and other - points can be found at Chathamcounty.org/vwap/html
Spencer Lawton Jr. is Chatham County District Attorney.
Post Script (UPDATE)
At approximately 11:08 PM last night, Troy Davis was finally executed for the murder of Officer Mark MacPhail. "Journalists" present, reported that Davis' last words were a continuation of his denials of guilt and a request that God have mercy on the souls of those responsible for his execution.
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