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Ga. Death Row Inmate Failed to Prove Innocence, Rules Federal Judge

Alyson M. Palmer

08-25-2010

A federal judge in Savannah, Ga., on Tuesday ruled against Troy Davis' claims that he is innocent of the 1989 murder for which he's been sentenced to death.

The decision came nearly a year after the U.S. Supreme Court granted the request Davis' supporters had been making for years: ordering a judge to review what they say is evidence showing that Davis did not murder Savannah police officer Mark Allen MacPhail.

But after hearing two days of testimony in June, U.S. District Judge William T. Moore Jr. declared in a 172-page order that he wasn't impressed.

"After careful consideration and an in-depth review of twenty years of evidence," wrote Moore, "the Court is left with the firm conviction that while the State's case may not be ironclad, most reasonable jurors would again vote to convict Mr. Davis of Officer MacPhail's murder. A federal court simply cannot interpose itself and set aside a jury verdict in this case absent a truly persuasive showing of innocence. To act contrarily would wreck complete havoc on the criminal justice system."

Amnesty International USA, which has worked to save Davis from execution, issued a release saying it feared the ruling could put Davis back on track for lethal injection. One of Davis' lawyers, Philip W. Horton of Arnold & Porter in Washington, D.C., said Davis would appeal.

Moore's order suggested he thinks the case now goes directly to the U.S. Supreme Court, which sent the matter to him last year. In an unusual August 2009 decision, the high court transferred Davis' request for a writ of habeas corpus to the Southern District of Georgia for the district court's "hearing and determination." The court said the district judge "should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of the trial clearly establishes petitioner's innocence."

During the June hearing, Moore telegraphed then that he had problems with Davis' case. He criticized Davis' lawyers for calling witnesses who claimed another man, Sylvester Coles, had confessed that he had killed MacPhail -- without subpoenaing Coles himself.

On Tuesday, Moore decided a critical legal question in Davis' favor, ruling that executing an innocent man is unconstitutional and that a condemned man may challenge his conviction even without a claim that his trial was unfair. That question has not been decided by the U.S. Supreme Court, wrote Moore, but "[i]t is unclear why a patently erroneous, but fair, criminal adjudication would change the transcendental fact that one who has not actually murdered cannot be executed."

But Moore said Davis hadn't met his burden to prove his innocence.

Davis' backers have said seven of the state's nine trial witnesses have recanted their testimony. Moore said this claim "vastly overstates" Davis' evidence, saying "[n]ot all recantations are created equal":

• Two of those witnesses, Antoine Williams and Harriet Murray, neither directly stated that they lied at trial nor claimed that their previous testimony was coerced, said Moore.

• Two other so-called recantations, testimony by Jeffrey Sapp and Darrell Collins, were "impossible to believe," said Moore. He wrote those witnesses' claims of coercion were credibly refuted by testimony of prosecutors and law enforcement.

• The recantations of Dorothy Ferrell and Larry Young, found in affidavits, are greatly diminished in their value, wrote Moore, because Davis' lawyers did not call them to the stand at the evidentiary hearing. That meant the state didn't have the chance to cross-examine them and the judge didn't have the chance to judge their credibility, said Moore.

• Remarkably, Moore said he found credible the recantation of Kevin McQueen, who testified at trial that Davis had confessed to him while the two were incarcerated. During the evidentiary hearing in June, McQueen said he had fabricated the testimony in order to get back at Davis for a fight the two had in jail and because he received benefits from the state. But, Moore wrote, McQueen's trial testimony was so out of line with the testimony of the other state's witnesses that it should have been obvious to everyone at the trial that he was lying, making his recantation not very damaging to the state's case.

Moore was equally unmoved by other evidence supporting Davis' claim of innocence.

Moore said the testimony of those who said Coles confessed to them was of minimal value, as there wasn't evidence to substantiate such hearsay. He said the U.S. Supreme Court has found hearsay confessions to be suspect, with good reason: "[F]or any minimally connected convict, rounding up several persons who will concoct false confessions should not be difficult." Here, he said, Coles might have said falsely that he killed MacPhail to enhance his reputation as a dangerous man.

Davis' lawyers have said they didn't subpoena Coles before the hearing because the usual rules barring hearsay didn't apply to Davis' case. Davis' lawyers also argued that they didn't call Coles because they didn't expect him to own up to the crime.

But, wrote Moore, "Mr. Davis appeared to forget that the witness stand is the crucible of credibility; and his reluctance to put Mr. Coles to the test robbed the Court of its ability to accurately assess Mr. Coles's claim that he did not shoot Officer MacPhail."

Moore also said witnesses who said they saw Coles shoot MacPhail were not credible. For instance, he said Benjamin Gordon has added new details helpful to Davis with each statement he has given since the trial.

"Ultimately," concluded Moore, "while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors. The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value."

The state has been represented in post-trial matters by the office of Attorney General Thurbert E. Baker. "After an exhaustive review of the evidence, the district court reached the correct decision," Baker's spokesman, Russ Willard, said Tuesday.

Horton, one of Davis' lawyers at Arnold & Porter, said his team was disappointed and disagreed with Moore's order. "We'll appeal it," he said.

Moore's order suggested he viewed his role in the case as that of a "magistrate" for the Supreme Court, with an appeal to go directly to that court, and he directed the district court clerk to forward the order to the justices.

However, the case is in an unusual place procedurally, and Moore acknowledged he "has been unable to locate any legal precedent or legislative history on point."

Amnesty pointed to the decision as support for its campaign to abolish the death penalty. "Nobody walking out of that hearing could view this as an open-and-shut case," Larry Cox, Amnesty's executive director, said in the organization's press release. "The testimony that came to light demonstrates that doubt still exists, but the legal bar for proving innocence was set so high it was virtually insurmountable. It would be utterly unconscionable to proceed with this execution, plain and simple."

The case is In re Davis, No. 4:09-CV-130 (S.D. Ga)

Death Penalty Issues
Truth in Justice