Wednesday, June 23, 2010

Troy Davis' last stand?

Today is the big day for Troy Davis.  (I have previously blogged about the case many times: here, here, here, here, and here among others.)  Months ago, the U.S. Supreme Court ordered a Georgia district court to hold an evidentiary hearing at which Davis would attempt to prove his claim of actual innocence.  That hearing, which his lawyers have been requesting for years, finally begins today.  Death penalty activists on both sides of the debate have been watching the Davis case for years.  The anti crowd have touted the 7 of 9 original eyewitnesses who have backed off their trial testimony or flat-out recanted it, the jurors who have expressed doubt, the witnesses who swear the other suspect (Sylvester "Redd" Coles, one of the 2 non-recanting eyewitnesses) confessed to the shooting, etc.  The pro crowd cling to the original jury verdict, point to ballistics evidence they say links the gun to another shooting that Davis is possibly linked to (as is the other suspect), and his alleged jailhouse confessions (which are the subject of some of the recantations).

I have long thought this particular case is an excellent example of the realities of the criminal justice system.  So many people who support the death penalty couch their support in terms of "if guilt is certain" or "if there's a smoking gun" or "when there's DNA."  So many cases just aren't like that, though.  More cases are like Davis' case.  There are eyewitnesses who can't be sure and who give conflicting accounts.  Not out of malice or because they aren't trying their best but simply because memory is not nearly as reliable as we choose to believe.  There are descriptions of suspects that match the defendant but also match other guys.  (Black man, short hair, between 5'7 and 6'.  The generic descriptions of the shooters in this case could apply to Davis or to Coles.)  There are ballistics or fingerprints or some other marginal forensic evidence that still doesn't really answer who committed the crime.  (So the gun in this case is linked to another shooting earlier in the evening, but both Davis and Coles were at the scene of that earlier shooting, too, so the ballistics really get us no closer to an answer.)

In Davis' case, even after 20 years of investigation and testimony and appeals, it is still as likely that the other suspect, Redd Coles, committed the shootings as that Davis did.  Anyone who doggedly refuses to acknowledge that fact is fooling himself.   I don't think it likely that Davis will be able to prove his innocence, either, though.  His case that Coles did it relies on the same kinds of troubled eyewitness statements and jailhouse confessions that were used to convict Davis.  I don't think anyone other than Davis and Coles will ever know for sure which one of the two pulled the trigger. 

But if Davis isn't able to prove he didn't do it, the state of Georgia will be free to execute him, no matter how possible it is that the other guy did it.  The fact that we're even thinking about executing someone in a case as convoluted and unclear as this one is appalling.  I am uncomfortable with anyone being convicted in a case like this, where two suspects exist and there is no reliable way to separate between the two.  Now, because a jury who didn't hear everything once found Davis guilty and a district court might well conclude that Davis can't conclusively establish his innocence, Georgia will be allowed to kill him.  That will be a perfectly legal conclusion to this case, but it shouldn't be one that any of us can live with.

Troy Davis now has the burden to prove he is innocent.  If he can do that, he will get relief and avoid execution, of course.  No one would knowingly execute an innocent man.  But I suspect the best he will be able to do is show there exists lots and lots of doubt about his guilt.  So what then?  I can only hope that the judge will not blindly follow procedure and say, "Innocence not proven, so conviction stands.  Execution's a go."  Instead, I hope the judge would have the wisdom to say, "Davis can't prove he's innocent, but nor can the state prove he's guilty.  Respecting the finality of a 20 year-old jury verdict, which would not be the same at a trial today, is not more important than getting it right.  Getting it right here means admitting we just don't know who committed this crime so we sure as heck can't execute Troy Davis." 

I will be watching this hearing with great interest.


Unknown said...

I'll be watching with great interest too. Thanks for your concise recap.

Unknown said...

"Fooling themselves? Not likely!
Troy is much taller than Coles. There were 30 police investigated witnesses, 9 of which took the stand. If the police had gotten 2 different stories about height and clothing then that would have been investigated as well.
A High School Mate of Troy's said this:
I went to Windsor Forest High School with Troy Anthony Davis in 1984or 1985, I graduated in 1986. I do not remember graduating with him but I do remember him sitting behind me in Mrs. Todds science class with his arm in a cast the whole period kicking the back of my desk, asking me if I wanted to fight, and the most vivid of all Troy saying "I'll kill you cracker." This went on everyday for the whole period. It was my only class with him.
I remember reading the news after his arrest and just saying to myself, "He did it, I saw it coming years ago."
Troy Anthony Davis was a punk thug then and he deserves no mercy now, because he knew all along what he wanted to do with his life, and I believe that killing a white person was what he wanted to do.
The smirk on his face that the witnesses testified to is just what made him the killer that he is. July 17 will bring justice to more than The McPhail family, it will bring justice to me, 22 years later.

Does that sound like someone that just unluckily happened to go Job hunting in Atlanta right after the killing occurred?

S said...

"Troy is much taller than Coles" says Mitchell. That is not true according to the court documents I have read. As an experienced criminal defense attorney having dealt with many cases involving shootings like this one, it would be shocking to me if the police didn't get different stories about the clothing and description of the shooter. Eyewitnesses at a chaotic scene like that are notoriously unreliable, varied in what they see, and very, very poor at accurately identifying the culprit. And let's not forget that one of those witnesses, one of only two who haven't since backed off their certainty about Davis, is Coles himself.

I have never claimed Troy Davis is a good guy. If you actually read my blog post, you would note I haven't expressed any degree of certainty that he is innocent. I have no such certainty. My argument about this case has consistently been that it is also likely that Coles was the shooter. And, yes, anyone who refuses to acknowledge that fact is fooling himself, Mitchell.

I have no doubt that if you could contact old schoolmates of Redd Coles, you would find similar descriptions of him. That very night, Coles was the one who threatened to kill a homeless man.

I suspect they were both "punk thugs" back then, but being a punk thug isn't a capital offense, so we really ought to be pretty concerned with figuring out which one of them committed the murder. With the varying evidence pointing to both of them, I don't see how we ever can.

Unknown said...

It's amazing how cavalier people can be about the death penalty. "Kill 'em all and God'll sort 'em out," was the joke in Viet Nam. And how often have we seen the cop attitude of "if he's not guilty of this crime he is guilty of others?"

I'm opposed to the death penalty in every case, but when there're questions like in this one, it's a no brainer.

Unknown said...
This comment has been removed by the author.
Unknown said...

Sorry for the typos, Seems I can't edit after posting..

Unknown said...

The differences in height can be seen in contemporary pictures. There is a picture of Coles standing in a courtroom that I saw a year or so ago and compared it then to a picture of Troy. While One would be hard pressed to get an actual height measurement from the pictures, one is definitely left with the impression that Troy is taller than Coles. Besides, Troy's actions at the scene, his trading clothes with Coles and his failure to name Coles at the trial Certainly tie him into the conspiracy to commit murder as well. To seriously believe that Troy is not guilty you have to believe some rather dubious claims.
1. That the cops preferred to tag Troy over an equally Black Coles.
2. They used coercion even though they knew that the tactic could backfire and free Troy, if proved.
3. That Troy was such good friends with Coles that he'd take the rap for him instead of ratting him out.
4. That the recanting witnesses didn't tell anyone for several years that they were lying on the stand, because they were afraid the cops preferred Troy over Coles.
5. That the thirty or more witnesses interviewed on the first two days all conspired against Troy withing 48 hours of the killing, even when interviewed by different policemen.

ETC.. Fooling themselves?? Yeah right..

Unknown said...

Oh and by the way, have you read the ORIGINAL trial transcript? I strongly suggest getting your hands on as much as you can read (It's huge) I'll bet you a steak dinner you'll change your mind if you read the entire thing. Plus you could make copies and publish them on the web. Really how could you comment well without reading the Transcripts? I've read a few parts of it that i could get hold of. I'd love more. If you'll post it I'll even defray some of the costs of copying it (court charges quite a bit.. sadly). What say, are you up for the challenge?
Why doesn't the Davis Family Post the Original Trial Transcripts?

Anonymous said...

Twenty two YEARS later, after dozens ( yes, dozens ) of highly skilled jurists have picked apart this case. they have still found for the State.
How many of the 'protesters', Carter included, et al, have READ the transcripts - I venture to say that they have not. Yet they are coming on strong for the convicted killer. He's already gotten 22 free years.

S said...

But, anonymous, that is what we would expect because once the conviction is first entered by a jury, all review defaults to that being the correct finding. In all of the DNA exoneration cases, you could say exactly the same thing. Appellate courts affirming the conviction does not mean the verdict was correct, merely that it was obtained lawfully.

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