Wednesday, October 22, 2008
News D.A.'s flawed Troy Davis argument
Posted by Mara Shalhoup on Wed, Oct 22, 2008 at 9:27 PM
Chatham County District Attorney Spencer Lawton has penned an editorial, published yesterday on AJC.com and Sunday on SavannahOnline.com, 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.
Comments (9)
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For more information, contact the Campaign to End the Death Penalty at (773) 955-4841, cedp@nodeathpenalty.org. The Georgia State Board of Pardons and Paroles can be contacted at (404) 651-6671 and (404) 656-5651, or at 2 Martin Luther King Jr. Drive, S.E., Suite 456, Balcony Level, East Tower, Atlanta, GA 30334-4909. I have called they take your name and city,state that you are in support of Troy Davis.
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Lawton, just like the rest of the legal system in Georgia, has his head firmly and squarely up his ass. www.journeyamerica.wordpress.com
As Mara Shalhoup says "... 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. ...". An Atlanta Journal-Constitution article by Bill Rankin dated 6 Oct 2008 said, about the Troy Davis case: "... The U.S. Supreme Court ... will meet in a private conference on Friday [ 10 October 2008 ] to consider Davis’ appeal ...". Could material not in evidence have been presented to the Paroles Board and the U.S. Supreme Court in private beyond closed doors? For example, there have been on the web (web site at www.fop9.net and blog comment by markallenmcphail) that said: "... physical evidence tying Davis to the murder ... Bloody "spotted" clothing was removed from Davis' house after he was named as a suspect. Because of the way Troy was standing above Officer MacPhail when he executed the officer he would have received a faint splatter of blood ..." and "... There WAS BLOOD on the shorts….. they did do a DNA testing that the Pardon’s and Parole board requested LAST year in 2007 hearing ..." and "... The blood was so degraded (due to time) and the spots so small that the test "consumed" the sample without results ...". However, it is my understanding that the "bloody" shorts were NOT introduced into evidence in the case and that the shorts belonged to Troy's mother's friend and were seized by the police who entered Troy's mother's house and took the shorts from her dryer. The possibility that the "bloody" shorts were considered by the Paroles board "beyond closed doors", despite their not being part of evidence of the case, disturbs me, particularly when I see that the U.S. Supreme Court held a "private conference" because it has been a practice of the FBI to meet with Federal Judges during trials/hearings and to present the Federal Judges with material not in evidence without the knowledge of the defense attorneys. My worry is that maybe the FBI might have been influenced by the FOP and prosecutors in the Troy Davis case to go to the "private conference" on Friday, 10 October 2008, and then and there present the "bloody" shorts, saying something like: "These "bloody" shorts clearly show Troy Davis is guilty. They were not admitted only because of technical search and seizure problems. You Justices ought not to grant certiorari for Troy Davis because the "bloody" shorts (even though technically inadmissible) show him to be guilty." Since Troy Davis's defense attorneys would not have been allowed in the "private conference", they would not have been able to show that the "bloody" shorts were irrelevant (not even being Troy Davis's shorts). Since the "bloody" shorts would not have been in evidence, Troy Davis's defense attorneys would not have been in a position to (and they did not) deal with them in their petition for certiorari, but they could have easily dealt with the issue if the issue had been presented to them honestly instead of possibly being sneaked into a "private conference" behind their backs. Tony Smith PS - As to the practice of the FBI to meet with Federal Judges during trials/hearings and to present the Federal Judges with material not in evidence without the knowledge of the defense attorneys, I have seen such in my personal experience as a lawyer. I should also state that in most cases, such a practice seems to me to further the cause of truth and justice, but the possibility that in the Troy Davis case the practice (if in fact used in the U.S. Supreme Court "private conference") might not only work against truth and justice, but also might result in the killing of an innocent man, has caused me to speak out now, especially since the execution is set for next Monday, and hearings are now set before the 11th Circuit.
We'll never know what the Board of Pardons & Paroles considered, but I don't think there is any reason to suspect the U.S. Supreme Court heard secret evidence that wasn't presented in the briefs that were filed. The Supreme Court's conferences have always been conducted in secret, and there are never any witnesses or attorneys present to argue the case or the evidence. The reason the Court didn't take the case is probably that they did not feel the legal question presented by Davis' petition was one that compelled their intervention. The Georgia Supreme Court decision was based upon Georgia statutes and Georgia legal precedent primarily, and Davis' attorneys had a hard time articulating a solid federal constitutional argument for why the GA Supreme Court decided the case incorrectly. State supreme court decisions are only appealable to the U.S. Supreme Court when they implicate a federal constitutional or statutory interest and when they are not supported by an "independent and adequate" ground of state law. I'm not sure the Court believed that the Davis petition presented a strong enough constitutional argument to justify their taking the case, beyond a simple "he's innocent" argument. Unfortunately they didn't think that was enough of a reason to hear it. I don't agree with their decision to deny certiorari to hear the appeal, but I am pretty confident it was based upon purely legal grounds and not any "secret evidence" that was somehow presented to them.
As Sara said, "... The Supreme Court’s conferences have always been conducted in secret, and there are never any witnesses or attorneys present to argue the case or the evidence. ...", but that does not refute my point, which is that it is possible that the Justices could have been presented in private with material not in evidence (such as the "bloody" shorts). If the Paroles board (which also has private proceedings) ordered, in 2007, a DNA testing of the "bloody" shorts, that would indicate a pattern by the prosecution of presenting material not in evidence to the decision-makers, possibly behind the backs of the defense attorneys, thus increasing my worry about the possibility similar actions with respect to the Supreme Court, especially as it set a private conference instead of either an open oral argument hearing or (as in the vast majority of cases) merely denying certiorari by routine order. According to the Supreme Court docket for the Troy Davis case: "... Sep 23 2008 Application (08A241) granted by the Court. The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is granted pending the disposition of the petition for a writ of certiorari. ...". As an AP story on live5news.com said on Monday 6 October 2008: "... There were expectations that the court would render a decision in the case on Monday [6 Oct 2008], but there was none ... Davis's appeal [actually a petition for certiorari] is not listed on the docket for oral arguments this week. The most likely date for his case to arise is in a conference by the Supreme Court justices scheduled for Friday [10 Oct 2008] ...". As the Supreme Court docket showed "... Oct 6 2008 DISTRIBUTED for Conference of October 10, 2008. ..." that is what happened, and certiorari was denied on 14 October 2008 after the closed-door private conference. So, the Supreme Court could have dealt with the Troy Davis petition in three ways: 1 - it could have on Monday 6 October 2008 have routinely ruled on it (the vast majority of dispositions that day were routine denials).; 2 - it could have ordered oral arguments (open to the public); 3 - it could have (and did) order it distributed to a private conference. The private conference choice leaves open the possibility that worries me, about material not in evidence being used in making the decision.
There is absolutely zero, zilch, even suggestion that the Justices were "presented evidence" during their closed conference. Where are you coming up with this stuff? It would be a complete departure from court procedure to allow anyone not on the court to even be present at the conference, let alone to present evidence, LET ALONE to present evidence not in the record publicly before the court. It simply didn't happen, and I don't know why you are trying to convince people that it did with nothing more than a pure conspiracy theory that has no basis in fact.
Also, every single petition for certiorari that is granted is first discussed at a private conference. That is how the petitions are considered and voted upon by the court when they decide what cases to take. It was not at all out of the ordinary for this petition to have been discussed at a private conference. No case would be set for oral arguments on the merits of the case without first having a vote on whether to grant cert at a private conference of the judges. Respectfully, Tony, you should read a little more about how the Court works before theorizing about what docket entries must mean. They do not indicate a conspiracy here, and I again say that as someone who desperately wishes the court had taken the Davis case and overturned his conviction.
Sara said "... It would be a complete departure from court procedure to allow anyone not on the court to even be present at the conference, let alone to present evidence, LET ALONE to present evidence not in the record publicly before the court. It simply didn’t happen ...". However, if the Paroles Board ordered a DNA test on the "bloody" shorts that were not in evidence, then it DID happen there, and no matter what the "official" rules of court procedure say, I have seen in my personal experience as a lawyer the FBI meeting with Federal Judge during a trial/hearin and presenting the Federal Judge with material not in evidence, all without the knowledge of the defense attorneys. Sara's suggestion that I should "... read a little more about how the Court works ..." would not change my direct observation of what really does happen, no matter what the written rules and procedures say. My fear is that something similar may have happened during the Supreme Court private conference on the Davis case, which was unusual in that the vast bulk of cases in which certiorari was denied (hundreds of them) were disposed of on 6 October 2008 without being distributed for private conference.
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