Wednesday, October 22, 2008

D.A.'s flawed Troy Davis argument

Posted By on Wed, Oct 22, 2008 at 9:27 PM

Chatham County District Attorney Spencer Lawton has penned an editorial, published yesterday on and Sunday on, to let people know why the upcoming execution of Troy Davis doesn't weigh on his conscience.

The only problem: All of Lawton's points are supported by evidence that supposedly hasn't seen the light of day — except that it has. In fact, most of Lawton's revelations have been addressed and contradicted by published reports and court documents. He also glosses over evidence that suggests Davis — who is scheduled to die Oct. 27 — could be innocent.

Lawton writes:

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 in a pending criminal case. Now that the U.S. Supreme Court has ruled, the case is over and I can tell our side.

After the jump, a dissection of Lawton's ensuing argument.

But first, a little background.

Lawton was D.A. back in 1991, when Davis received the death penalty for the murder of off-duty Savannah Police Officer Mark MacPhail. MacPhail was shot dead after he ran to the aid of a homeless man who was being pistol-whipped. The 27-year-old officer left behind three young children.

Since Davis' conviction, seven of the nine witnesses who testified against him at trial have recanted their testimony, with most of them claiming they were pressured by police to identify Davis as MacPhail's killer. One of the two men who didn't recant, Sylvester "Redd" Coles, admitted to being at the scene of the crime and is alleged to have later confessed to three people that it was he who killed Officer MacPhail.

Here's what Lawton has to say about the other evidence (aside from allegedly faulty eyewitness testimony) that proves Davis' guilt:

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.

Yet the shell casings only prove that the same person (or at least the same gun) shot Cooper and MacPhail. The matching shell casings do nothing to link Davis to the two shootings. What's more, "Redd" Coles allegedly was at the scene of the earlier shooting, too. And according to signed affidavits, witnesses claim to have seen Coles dispose of a gun shortly after MacPhail was killed — a gun whose caliber was the same as the bullets recovered from both crime scenes.

Regarding the Cooper shooting, New York Times columnist Bob Herbert opined: "The jury ... convicted Mr. Davis of a nonfatal shooting earlier that same evening on testimony that was even more dubious."

Another of Lawton's points has to do specifically with Coles. The D.A. claims in his editorial that Coles acted in good faith when he went to Savannah police the day after the murder and became the first person to identify Davis as the killer:

Davis’ advocates are eager to condemn Coles. ... Where is their sense of fairness? This is the same 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.

Yet the AJC provides a slightly different account of the Coles incident. (When you click on the preceding link, scroll down to the story "High court faces classic murder mystery.") The paper's November 2007 article describes Coles' 1991 testimony against Davis as follows:

Questioned about why he sought out lawyer John Calhoun the day of the murder, Coles told the jury he had worked for Calhoun "off and on."

The attorney had accompanied Coles to the police station, where he told officers that he saw Davis with a .38-caliber gun just before the murder.

"Why didn't you just go straight to the police?" asked defense attorney Robert Falligant.

"I don't know," Coles said. "That's what I chose to do."

As for the seven of Davis' trial witnesses who recanted their testimony — as well as other witnesses who stepped forward to say Coles later confessed to them — Lawton writes that those statements were thoroughly reviewed:

[Davis' supporters] claim that their “newly discovered evidence” 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 last Tuesday’s Supreme Court ruling.

Yet the last and highest court to issue a ruling in the case, the Georgia Supreme Court, didn't consider the truthfulness of the newly discovered evidence. Rather, in a 4-3 ruling earlier this year, the justices ruled that the evidence wasn't admissible due to a technicality. (Earlier this month, the U.S. Supreme Court, merely decided not to hear the case. It didn't indicate whether the evidence was trustworthy.)

Lawton's last point is perhaps his strongest. He writes that, if there truly was doubt about Davis' guilt, the state Board of Pardons and Paroles would have granted Davis clemency:

The 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 suggestion is that the Paroles Board knows something the rest of us don't — and something that the rest of us never will. That's because the board's deliberations take place beyond closed doors.

Let's hope that the evidence the board considered is more convincing than what Lawton's editorial delivered.

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