The Long Road To The Davis Case

Andrew Cohen Examines A Ga. Murder Case That May Send An Innocent Man To His Death

(AP)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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The decades-long, law-and-order-fueled trend toward restricting appellate avenues in criminal cases may be reaching its gruesome but inevitable conclusion in the case of Troy Davis, a death row inmate who apparently will be executed soon despite a series of post-trial revelations about his lack of culpability that ought to shock the conscience of even the most ardent supports of capital punishment.

Davis, who is black, was charged, tried and convicted in Georgia for murdering a white police officer. He was sentenced to death in 1991. There was no physical evidence linking him to the crime. There was no DNA. There was no murder weapon found on him. Since his trial, seven of the nine main prosecution eyewitnesses against him have recanted their trial testimony. Some of these witnesses claim police coercion or harsh interrogation tactics caused them to be untruthful at trial.

Moreover, a handful of witnesses have stepped forward to claim that another man has confessed to the crime. This “other man,” according to the Atlanta Journal-Constitution, is one of the two remaining trial witnesses who, not surprisingly, still claims that Davis shot the officer. The final eyewitness (of the nine we are concerned with) initially told the police that he could not identify Davis at the crime scene before later changing his tune at trial and incriminating Davis. Even during this new age of DNA there has been no great movement to resolve these legal and factual conflicts.

Short of seeing a videotape of that other fellow’s confession, it’s hard to imagine a scenario that more clearly calls out for a full and independent evidentiary hearing, or even a new trial, to assess the validity of the changed narrative about Davis’ role in the crime. And, indeed, in an earlier time in our history it is quite likely that the federal courts would have ensured such a review. No more. The highly-politicized, step-by-step closing of the courthouse doors to appeals like this-the intentional restriction of meaningful appeals rights-may send an innocent man to his death.

When Davis’ appeal on these issues made it to the Georgia Supreme Court the judges there denied him any relief and declared in a 4-3 vote that there must be “no doubt of any kind” but that the trial testimony was of the “purest fabrication” in order to warrant interceding on Davis’ behalf. Got that? It takes only the absence of “reasonable doubt” to convict someone of murder but in Georgia to properly investigate a condemned man’s strong claim of innocence judges have to have “no doubt” at the outset of the inquiry that the inquiry will prove his innocence. How, one dissenting Georgia justice asked, can anyone ever meet such a standard?

It’s a game that Davis can’t win; and that’s precisely how leaders of the anti-appeal movement have wanted it. As the criminal justice system has become more conservative, the courts and the Congress have relentlessly created (or recognized) barriers to meaningful appellate review. The stated reason, of course, has always been to diminish frivolous appeals by prison inmates who have nothing better to do with their time than test the judicial system. But today the barriers are so high that they are keeping beyond the reach of substantive review the sorts of vital questions raised by Davis and his attorneys.

Having lost in Georgia, and at the lower federal court level, the defense then asked the United States Supreme Court to declare that the State violates the Eighth Amendment’s prohibition against cruel and unusual punishment when it executes an innocent man (or doesn’t even hold a full hearing on his strong claims of innocence). At a minimum, the defense believed, the Justices would look closely at the stringent, new “pure fabrication” rule the Georgia High Court came up with in the Davis appeal.

But it isn’t going to happen. The same Supreme Court in Washington, which delayed Davis’ execution last month, announced on Tuesday that it would not, after all, take the case on its merits. This virtually guarantees that Davis will be executed despite the grave doubts about his guilt. There will be no evaluation of the Eighth Amendment in these circumstances; no considered review of the new Georgia rule; no ardent discussion between Justices Scalia and Stevens about when, if ever, a defendant like Davis can ever get that meaningful new look from the courts.

Why the Justices turned away from a case they had sniffed at last month may forever remain a mystery. But what is perfectly clear is that Georgia has now created a virtually unassailable bar to criminal defendants whose shaky convictions are later subverted through the discovery of new evidence or the dissolution of the accuracy, reliability and credibility of important trial evidence. After decades of success, subtle and otherwise, the anti-appeal movement has just now reached its crescendo or, depending upon your point of view, its nadir.

[lulabelle7]

Thank you for this article. We are all disappointed in the Supreme Court as well as in the judicial system of GA regarding especially this case.

[donna_larson]

The US Supreme Court is a disgrace to the United States as far as I am concerned. America stands for
justice. Where is Troy Davis justice? With seven out
of nine witnesses recanting their testimony should constitute for a new trial for Mr. Davis. To many politics is going on in America instead of remembering
human lives and what is right. America does not stand
for a right to a fair trial anymore.

[sheila304]

Does anyone seriously believe this man would still be on death row if he were white?

Actually, I think this might be the case that finishes the death penalty in the States. The UK dropped the death penalty partly because it became obvious that they should never have hanged Timothy Evans. But really it would be far more to the point to have a retrial. I really don''t see them getting a conviction.

[sashimi3-2009]

Upfront this looks bad,however I doubt that the truth will be known.I fail to see what DNA would prove in this case?I dont think the shooter touched anything but the gun.With all those witnesses someone needs to step forward with the weapon and save this man if he is innocent.Or face your maker someday and repent.Why does everyone want to wash their hands of life and blame it on others?

[fiteit1]

The officer that died (if a good officer) wouldn''t have wanted it this way. I am surprised that the family and friends of the officer is willing to sweep this under the carpet and let a (most likely innocent) person die and a guilty person not get punished. What a way to honor a relative or friend.

May the people that know the truth and did nothing and those that refuse to fully investigate it burn in hell.

[mickeym4045]

Wake up America. The death penalty is wrong. HOw many innocent men and woman have to die for someone ele''s mistakes? I watched my husband a innocent man be executed and I will never forget nor forgive it as long as I live. Nothing will stop the death penalty until one of the goverments familiy memembers go to death row and that is a fat chance of that happening. The world is watching as over 2.4 million americans are in prison, its the highest number in the world but I thought it was the land of the free. WAKE UP AMERICA AND GEORGIA NEEDS TO DO THE RIGHT THING. I''m praying for Troy and his family

[rebeccagray7]

How ironic that America is seemingly on the verge of electing our first black president, and yet there is still no such thing as a fair trial for a black man from Georgia. We are deluded to think that Obama''s nomination is the fulfillment of Martin Luther King Jr''s dream.

[rebeccagray7]

How ironic that America is seemingly on the verge of electing our first black president, and yet there is still no such thing as a fair trial for a black man from Georgia. We are deluded to think that Obama''s nomination is the fulfillment of Martin Luther King Jr''s dream.

Also, as a pro-life supporter, I am deeply disturbed to see the conservative Justices displaying such blatant disregard for the life of a (probably) innocent man. Especially when so many pro-lifers have pinned their hopes upon these Justices to defend the unborn. What about the sanctity of Troy''s life?

[rebeccagray7]

How ironic that America is seemingly on the verge of electing our first black president, and yet there is still no such thing as a fair trial for a black man from Georgia. We are deluded to think that Obama''s nomination is the fulfillment of Martin Luther King Jr''s dream.

Also, as a pro-life supporter, I am deeply disturbed to see the conservative Justices displaying such blatant disregard for the life of a (probably) innocent man. Especially when so many pro-lifers have pinned their hopes upon these Justices to defend the unborn. What about the sanctity of Troy''s life?

[rebeccagray7]

How ironic that America is seemingly on the verge of electing our first black president, and yet there is still no such thing as a fair trial for a black man from Georgia. We are deluded to think that Obama is the fulfillment of Martin Luther King Jr''s dream.

[rebeccagray7]

How ironic that America is seemingly on the verge of electing our first black president, and yet there is still no such thing as a fair trial for a black man from Georgia. We are deluded to think that Obama''s nomination is the fulfillment of Martin Luther King Jr''s dream.

Also, as a pro-life supporter, I am deeply disturbed to see the conservative Justices displaying such blatant disregard for the life of a (probably) innocent man. Especially when so many pro-lifers have pinned their hopes upon these Justices to defend the rights of the unborn. What about the sanctity of Troy''s life?

[rebeccagray7]

How ironic that America is seemingly on the verge of electing our first black president, and yet there is still no such thing as a fair trial for a black man from Georgia. We are deluded to think that Obama''s nomination is the fulfillment of Martin Luther King Jr''s dream.

Also, as a pro-life supporter, I am deeply disturbed to see the conservative Justices displaying such blatant disregard for the life of a (probably) innocent man. Especially when so many pro-lifers have pinned their hopes upon these Justices to defend the rights of the unborn. What about the sanctity of Troy''s life?

[rebeccagray7]

How ironic that America is seemingly on the verge of electing our first black president, and yet there is still no such thing as justice for a black man from Georgia. How can Obama''s nomination be the fulfillment of Martin Luther King Jr''s dream when Troy Davis cannot receive a fair trial?

[jonfairbanks]

Thank you, Mr. Cohen, for your fine article.
I understand that Thomas, who forgot the color of his own skin long ago, Roberts, Scalia and Alito would have no trouble sending Mr. Davis to his death, even if they were convinced of his innocence, because for them this is just a procedural matter (he who has no more appeals cannot appeal; innocence be damned). George Bush, as governor of Texas, once famously signed the execution warrant for a death-row inmate whom everyone recognized to be innocent. The problem here was also just procedural; he had used up all his appeals.
The part I don''t get here is how the other four Supreme Court justices, the so-called liberals (I''ll include Kennedy here) could go along with this travesty of justice. Shame on all of them.

Jonathan Fairbanks

[rebeccagray7]

How ironic that America is seemingly on the verge of electing our first black President, and yet there is still no such thing as justice for a black man from Georgia. How can Obama''s nomination be the fulfillment of Martin Luther King''s dream when Troy Davis cannot receive a fair trial?

[rebeccagray7]

How ironic that America is seemingly on the verge of electing our first black President, and yet there is still no such thing as justice for a black man from Georgia. How can Obama''s nomination be the fulfillment of Martin Luther King''s dream when Troy Davis cannot get a fair trial?

[rebeccagray7]

How ironic that America is seemingly on the verge of electing our first black President, and yet there is still no such thing as justice for a black man from Georgia. How can Obama''s nomination be the fulfillment of Martin Luther King''s dream when Troy Davis cannot get a fair trial?

[rebeccagray7]

How ironic that America is seemingly on the verge of electing our first black President, and yet there is still no such thing as justice for a black man from Georgia. How can Obama''s nomination be the fulfillment of Martin Luther King''s dream when Troy Davis cannot get a fair trial?

[rebeccagray7]

How ironic that America is seemingly on the verge of electing our first black President, and yet there is still no such thing as justice for a black man from Georgia. How can Obama''s nomination be the fulfillment of Martin Luther King''s dream when Troy Davis cannot get a fair trial?

[c-mo6]

there is still no such thing as a fair trial for a black man from Georgia. We are deluded to think that Obama''''s nomination is the fulfillment of Martin Luther King Jr''''s dream.

Also, as a pro-life supporter, I am deeply disturbed to see the conservative Justices displaying such blatant disregard for the life of a (probably) innocent man. Especially when so many pro-lifers have pinned their hopes upon these Justices to defend the rights of the unborn. What about the sanctity of Troy''''s life?


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Posted by rebeccagray7 at 11:14 PM : Oct 14, 2008
+ report abuse

Ok, we get it.

[rebeccagray7]

How ironic that America is seemingly on the verge of electing our first black President, and yet there is still no such thing as justice for a black man from Georgia. How can Obama''s nomination be the fulfillment of Martin Luther King''s dream when Troy Davis cannot get a fair trial?

[robertsonfop]

But Chatham County prosecutors have long expressed confidence that Davis is a cop killer.

On Tuesday, District Attorney Spencer Lawton accused Davis%u2019 supporters of manipulating the legal process, using the news media and waging a public relations campaign to undermine confidence in the court system, all at the expense of MacPhail%u2019s family.

%u201CWhile an 80 percent recantation rate%u2026may seem to some as overwhelmingly persuasive, to others of us it invites a suggestion of manipulation, making it very difficult to believe,%u201D Lawton said in a lengthy statement.

He noted that each of the recanting witnesses was vigorously cross-examined at trial as to whether they were pressured by police to point the finger at Davis. %u201CAll denied it,%u201D Lawton said.

The justice system, Lawton added, has been %u201Cpainstakingly indulgent%u201D of Davis%u2019 claims, not dismissive as his advocates contend.

In the meantime, MacPhail%u2019s family has endured %u201Ca seemingly endless succession of new technical and substantive legal threats to their faith and hope,%u201D he said. %u201CIt should be obvious that the PR campaign intensifies the agony of the victim%u2019s family.%u201D

[slarabee]

Robertsonfop,
The opinions of the DA and/or prosecutors are ALWAYS that they%u2019re convictions are righteous. However if you had read all of the affidavits it is clear that this case has serious problems. Police correction seemed to be the common thread.
Whenever there is police coercion, there is a risk of false testimony, which appears to be what has happened in this case.
The fact the testimony held up under rigorous cross examination is irrelevant. Fact is witnesses are routinely prepped for testimony in our court system. It may not be ethical but it happens every single day.
The question at the end of the day is; Has there been enough inconsistency to warrant further investigation into this case?
You imply that there has not been enough inconsistency in this case to warrant a new hearing or investigation of any kind and you would bet Troy Davis%u2019 life on it, question is would you bet your own? I think not.
Yesterday was a sad day for justice and freedom in America.

[mickeym4045]

I was just sick when I read they were going to go ahead with the execution. What more do they need to prove a man is innocent. The police and DA''s threaten witnesses to win a case as they get bonus and promoted when a case is closed. It''s the good ol boys club and will close a case at any cost. There have been a few men that came within hours of being killed by legal injection who are now free, not one person should die if there is any doubt and there is clearly doubt in this case when most of the witnesses have recanted their story. For the courts to say the witnesses were asked if there were forced against there will years ago to say anything false, please there not to put themself in harms ways as the police will find anything on the witnesses to get what they need. WAKE UP AMERICA. Funny how is America is bankrup yet we have money to spend on killing inmates which on average is 2.4 million dollars per death row case. Enough of the death penalty.

How can this happen in America? Well, it is happening and since 9-11 we have lost more rights than we realize. Troy is innocent, in my opinion but what does that matter. Black man kills white cop in Savannah, hello? I''m white but this is wrong and something must be done. I hate to think that Troy has to be a martyr because the "Supreme" Court can''t protect the innocent!