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Another "Innocent" Person About to be Executed

There has been much ado in the media lately about another "innocent" person about to be executed. Unfortunately, most of the media coverage about the impending execution of cop-killer Troy Davis has spent precious little time discussing the facts of the case. This link contains a fairly complete rebuttal of the claims made by Davis' advocates, who seem to have little interest in getting at the truth of the case. Even more poignant is this link, which has information about the victim in this case — Officer Mark Allen MacPhail.

Davis was convicted and sentenced to death in 1991. We live in strange times when the claim is made that he hasn't had due process yet.

Update: A reader usefully suggested that I link to the case being made by his supporters. Here is the Amnesty International take on the case.

Hovsep Joseph (mail):
His advocates are not claiming he is innocent. They are claiming mitigating circumstances which might have led to a sentence less than death should have been presented.
10.20.2008 4:53pm
Hovsep Joseph (mail):
I'm sorry. I was thinking of another case. I'm wrong.
10.20.2008 4:56pm
marcus:
what is the relevance if the background on the purported victim? that's the exact type of appeal to passion and prejudice that has no place in a conviction and death sentence under the law.
10.20.2008 5:03pm
MarkField (mail):

Davis was convicted and sentenced to death in 1991. We live in strange times when the claim is made that he hasn't had due process yet.


While the length of time might be relevant to whether he received due process, that isn't necessarily the case.
10.20.2008 5:06pm
EIDE_Interface (mail):

MarkField (mail):


Davis was convicted and sentenced to death in 1991. We live in strange times when the claim is made that he hasn't had due process yet.



While the length of time might be relevant to whether he received due process, that isn't necessarily the case.


I love it when liberals agitate for scum of the earth. You think you gain brownie points for heaven?
10.20.2008 5:10pm
Dilan Esper (mail) (www):
In addition to seconding what Marcus and Mark Field say, I would really condemn the tone of Professor Cassell's post. He's sneering at the idea that these innocence claims on death row EVER have merit. In fact, thanks to DNA technology, we learned that there were numerous innocent people on death row-- including people who got 17 years worth of "due process", just like Professor Cassell sneers in this case.

Look, I do understand that there's a certain type of person (see Scalia's concurrence in Herrera v. Collins) who thinks that the entire scheme of convicts claiming innocence is a con game that prevents the public from exacting the just punishments that criminals deserve. I wonder what Professor Cassell would think if he or someone he cared about were falsely convicted of murder. Of course, he needn't worry-- that never happens to people of his social station.
10.20.2008 5:13pm
CFG in IL (mail):
A better post would also have included a link to the case being made by his supporters.
10.20.2008 5:13pm
Steve:
I find the rebuttal fairly unconvincing, although it does add some important facts to the equation. Tellingly, there is no attempt whatsoever to grapple with the actual contents of the various affidavits of recantation; instead, there is a lot of speculation that perhaps the affiants were pressured. If the recantations were not credible, for whatever reason, I would expect a more forthright discussion of why that is so.

And I agree, even if the victim was an absolute saint of a man, that has no relevance to the question of whether the defendant killed him or not.
10.20.2008 5:14pm
Allan (mail):
I am confused.

Assume that he is innocent (I know it might be a stretch). And assume he has proof of his innocence.

Should we deny him more process to prove his case or should we just execute him because we have given him enough process?

Perhaps the answer is that the courts have done for this person all they can do and we should rely on someone else to determine whether a wrong needs to be corrected, that is, the person with the power of clemency.
10.20.2008 5:14pm
Happyshooter:
I am amazed that his supporters keep claiming that he 'signed up for the Marines' as if they think that makes him good or noble somehow.

I know that lawyers who support him are the type who hate the military, so I figure that they think the right and vets are so dumb that we will miss the 'signed up' part and not realize that he never actually served, much less attempted boot camp.

Everything I have read looks like it was a good arrest and conviction. Some of the witnesses turned, but years later and after being worked over by NAACP/Church types for years--folks who have overwhelming power in those types of areas.
10.20.2008 5:15pm
Paul Cassell (mail):
CFG in IL -- good suggestion. I've added a link to the Amnesty International webpage in the main post.
10.20.2008 5:18pm
Elliot123 (mail):
"I wonder what Professor Cassell would think if he or someone he cared about were falsely convicted of murder. Of course, he needn't worry-- that never happens to people of his social station."

Probably not. Few, if any, in Cassell's social station kill cops. It's behavior that is concentrated in much less educated and less responsible people. People in Cassell's social station know better.
10.20.2008 5:22pm
BruceM (mail) (www):
"He's not been proved to be guilty beyond a reasonable doubt" is a better way of arguing for not executing him rather than claiming he's actually, factually, innocent.

But a cop was killed so someone has to die. The poorer and darker, the better.
10.20.2008 5:23pm
bjr26:
I work across the street from the federal courthouse in San Francisco, and have seen several protesters holding placards regarding the Davis execution recently. Knowing absolutely nothing about the case until I read this post, I was hoping that this fairly complete rebuttal would arm me with some fun points to debate with them should they show up again.

I have to say, I'm a little disappointed. Turns out multiple witnesses have recanted their testimony regarding whether Davis shot officer MacPhail. So how does prosecutor Lawton rebut this evidence? He questions why it was not offered until just before Davis's first scheduled execution, and he suggests the high rate of recantation is itself evidence of "manipulation." This is pure speculation, of course, and at least to the latter claim, a little confusing -- in Lawton's view, would Davis be more deserving of a new trial if fewer witnesses had recanted?

Then there is the section titled physical evidence. A-ha, here we go -- here's the hard evidence that will prove Davis did it! Except this is all we get: "Crime lab tests demonstrated that the shell casings from Davis' shooting of Cooper earlier in the evening were fired from the same weapon as the casings recovered from the scene of Officer MacPhail's murder."

Well, that's evidence that the same weapon was used in both shootings -- but is it evidence that Davis pulled the trigger in the MacPhail shooting? No. In fact, Lawton's rebuttal then goes on to state: "Well worth noting is the Sylvester ["Red"] Coles herring. Davis' advocates are anxious to condemn Coles based on evidence far weaker than their characterization of the evidence against Davis." Hmm. Apparently, there is someone else (Coles) who may have been with Davis who could have been the shooter. But apart from Lawton's conclusory claim that the evidence against Coles is weak, Lawton's only other argument is that Coles confessed without his lawyer present, and that no lawyer would ever allow such a thing if there was a possible case to be made against his client, "Period." Well, a quick Google search revealed the following:


"At the trial, Sylvester Coles admitted that he had been carrying a .38 calibre silver chrome handgun, the same calibre used in the shooting, half an hour before Officer McPhail was shot. He said that he had discarded the gun before the incident, and that he had not seen the gun again. "


Assuming Coles actually did testify this way, it appears that at the very least it was possible for a case to be made against Coles. Thus, the fact that he confessed without a lawyer present suggests he received some bad advice from his counsel. So much for the Period.

Lawton does score some points by listing the numerous courts and parole boards that have considered the evidence presented at trial, but even here, Lawton mostly quotes the conclusions each of these courts (or boards) reached.

I mention all of this not because I think Davis is innocent, or should be spared the death penalty -- rather the opposite. But if this "rebuttal" is of the same quality as Lawton's case-in-chief against Davis, I guess I have more questions now than answers.
10.20.2008 5:26pm
Dilan Esper (mail) (www):
Elliot123:

You are actually proving my point. People have all sorts of background assumptions about professors and former federal judges, and their family members and social acquaintances, not being the type of people who commit violent crimes. Meanwhile, you accurately expressed the assumption about less educated and poorer people.

That's one of the reasons why we get false convictions of those less educated and poorer people, especially if they have priors.
10.20.2008 5:27pm
Kazinski:
Bruce M.
But a cop was killed so someone has to die. The poorer and darker, the better.

Not necessarily, a commie or a hippie would satisfy my bloodlust even better.
10.20.2008 5:32pm
Dave N (mail):
what is the relevance [is] the background on the purported victim? that's the exact type of appeal to passion and prejudice that has no place in a conviction and death sentence under the law.
Actually it can be highly relevant. Most states make killing a police officer in the line of duty more serious than killing non-police officers. Killing a police officer is oftentimes both a form of first degree murder (akin to felony murder) and an aggravator.

As for this case, I will look at the links and comment more later. However, right now, I have to make sure a man on death row for the last 26 years gets his due process by answering his federal habeas corpus petition.
10.20.2008 5:39pm
ejo:
so, it's the classic he's putting the murder on me defense, with 9 witnesses having testified that Davis did it and physical evidence putting it on Davis? doesn't sound too tough-he did it, he should be executed.
10.20.2008 5:51pm
Happyshooter:
But a cop was killed so someone has to die. The poorer and darker, the better.

No, pretty much a cop was murdered for no good reason other than the murderer was a scumbag. The murderer should die. If only society had the murderer somewhere where we could execute him.....Oh! Wait! We do. Davis is already in custody.
10.20.2008 5:56pm
Elliot123 (mail):
"You are actually proving my point. People have all sorts of background assumptions about professors and former federal judges, and their family members and social acquaintances, not being the type of people who commit violent crimes. Meanwhile, you accurately expressed the assumption about less educated and poorer people."

Perhaps you can prove your own point by pointing out the cop killers in Cassell's social station? Maybe you could tell us about the professors and former federal judges who have killed cops? Are cops on campus in danger from all those gang banger professors? Is the professor the real mass murder on campus? Do they carry Mac-10's in their briefcases? Do we need an Ivy Alert when a professor is lurking? Are full professors more likely to kill cops than assistants? Are they getting away with it because historically disenfranchised minorities are taking the rap for them? Shocking!
10.20.2008 5:57pm
T Trent (mail):
It's worth remembering that the Innocence Project is an advocacy organization. The same title might as well be broadly applied to the academics who produce the "statistical analyses" of "causes for wrongful conviction" based on the Innocence Project's own highly subjective, often bluntly misleading descriptions of their own cases. But, unlike media reports that only mislead the public when they leave out unflattering facts, these academic "analyses" are being accepted at face value by state legislatures under pressure to enact vast changes to the laws of evidence based on the 150 or so Innocence Project cases. Tragic as each of these cases may be, they are not statistically significant when properly contextualized within the many millions of rapes and murders, and rape and murder convictions that occurred over the same period of time (and many IP cases, particularly those involving gang rapes or dead victims and thus the possibility of multiple assailants --may not be cases of "actual" innocence at all).

Legal scholars have been loath to question the Innocence Project's statistical claims, not to mention the information presented to characterize individual cases. Looking at the effects of their advocacy on state laws, they should think again. How many of these cases of wrongful conviction would look very different if all the facts were objectively presented? How many of these men actually came to the attention of the police primarily because they were known rapists, not because of "eyewitness misidentification" or "false confession" or any other sympathy-inducing spin on the case? Some clients have already been returned to prison, or never released, because of other crimes. And of course it must be stated -- again -- that overturning a death sentence doesn't equal innocence. Of course. The picture of wrongful conviction, including convictions overturned by DNA, is far more complex than activists (and, unfortunately, many academicians) claim it to be.
10.20.2008 5:58pm
Fub:
Dilan Esper wrote at 10.20.2008 4:13pm:
I wonder what Professor Cassell would think if he or someone he cared about were falsely convicted of murder. Of course, he needn't worry-- that never happens to people of his social station.
Never say never. Almost a century and half a world away in an internationally famous case, Dr. Harvey Crippen was convicted of murdering his wife, based on the evidence of "body parts" found buried in his basement. He was hanged within weeks. Recent DNA testing of samples preserved from his trial has demonstrated conclusively that the "body parts" were not from his wife.
10.20.2008 6:00pm
ejo:
coles didn't shoot cooper as he wasn't at that party. yet the bullet dug out of cooper and the officer match-sounds like a pretty good forensic issue against Davis to me.
10.20.2008 6:03pm
Adam J:
I'm also a little disturbed by how the former Judge Cassell mentions the victim's biography in an apparent attempt to influence our opinion regarding the guilt or innocence of Davis. Perhaps he could illuminate me as to how this is relevant to guilt or innocence.

Also, what's the point about 1991? Does he think there should be a statute of limitations on attempting to prove innocence?

Nor do I see how Professor Cassell can claim Davis' advocates are opposed to reaching the truth of the case. They're extensive research certainly indicates the exact opposite to me. The prosecutor's rebuttal is the one light on truth, it spins a bizarre conspiracy theory about witness manipulation of 7 witnesses. Maybe I live in upside down world, but to me more recantors supports the exact opposite conclusion.

Also, while it is incomprehensibly hard on the victim's family, and I sympathize greatly for MacPhail's poor family, I think the prosecutor's appeal to their hardship is inappropriate. It's just not relevant to guilt or innocence, rather just an attempt to smear Davis' advocates (and not an altogether appropriate one, since the prosecution probably shares some part of the blame for having witnesses called who were later willing to recant their testimony).
10.20.2008 6:06pm
just a country lawyer:

what is the relevance of the background on the purported victim? that's the exact type of appeal to passion and prejudice that has no place in a conviction and death sentence under the law


We live in strange times, indeed. Or maybe not so strange at all given the history of government imposition of the death penalty...
10.20.2008 6:10pm
Nathan_M (mail):
I don't know enough about the evidence to have an informed opinion, but I find the prosecutor's brief extremely poor. For example:
And while an 80% recantation rate - the first in the history of the world? - may seem to some as overwhelmingly persuasive, to others of us it invites a suggestion of manipulation, making it very difficult to believe. [emphasis in original, except I've used italicization instead of underlining]


The the brief does not refer to any evidence of manipulation or coercion. This argument seems to me to be nothing but speculation, and the suggestion that somehow the defence's case would be strong if fewer prosecution witnesses had recanted seems difficult to credit.

Worth noting as well is the Sylvester ["Red"] Coles herring. Davis' advocates are anxious to condemn Coles based on evidence far weaker than their characterization of the evidence against Davis. This is the same Sylvester Coles who promptly presented himself to police and, [sic] who was advised by counsel to tell all that he knew - with his lawyer not even present. Which he did. "Law and Order" aside, no lawyer who thought it even remotely possible that any case could be made against client [sic] would ever allow him to give a statement to the police, and especially not without the lawyer's being present. Period.[emphasis in original]


Why is this worth noting? A defence lawyer's opinion of his client's guilt is (rightly) of no probative value, why should a prosecutor's speculation about that same defence lawyer's opinion be considered? I know this never happens on "Law and Order", but if Mr. Coles's lawyer foresaw what would happen to Mr. Davis then that would be a very good explanation of why he would permit his client to speak to the police (irrelevant an issue as that is). I'm going to speculate this is the only situation where Mr. Lawton has ever argued that giving a statement to the police is evidence of one's innocence.

I'll leave aside Mr. lawton's implicit suggestion that it's the defence's job to prove Mr. Coles guilty beyond a reasonable doubt, and that the evidence that Mr. Coles is guilty (and so Mr. Davis is not) is not relevant unless it is sufficient to convict Mr. Coles.

I have to say I don't find this brief at all convincing. Clearly this isn't a case like some other alleged wrongful convictions where DNA evidence conclusively proves the accused is, in fact, innocent. But if the defence's new evidence raises doubt about Mr. Davis's guilt I don't see how this brief rebuts it.
10.20.2008 6:13pm
Adam J:
ejo- Actually, one of the witnesses puts Coles at the party.
10.20.2008 6:13pm
underthegun:
Let's be honest here, exactly how many people on death row have been determined to be INNOCENT because of DNA?

And the fact that the victim was a police officer IS relevant - if you can't see why - I doubt any explaining will do.
10.20.2008 6:14pm
Nathan_M (mail):

And the fact that the victim was a police officer IS relevant - if you can't see why - I doubt any explaining will do

It's relevant to the punishment, it's not relevant to guilt.
10.20.2008 6:20pm
john w. (mail):
Most states make killing a police officer in the line of duty more serious than killing non-police officers.

Apologies for being off-topic, but am I the only one who finds it vaguely disturbing that the lives of Government employees are considered to be more valuable than the lives of ordinary peasants like us??

It seems to me that (unprovoked) murder is murder, and ought to be severely punished no matter who the victim was.
10.20.2008 6:20pm
Blue:
"Nor do I see how Professor Cassell can claim Davis' advocates are opposed to reaching the truth of the case."

Balderdash. Davis' advocates want him not to die. Period. They are unconcerned with truth.
10.20.2008 6:24pm
gerbilsbite:
Steve above has it: the brief isn't a rebuttal so much as a "nyuh-uh!"

An evidentiary hearing on the motion would settle the issue, and seeing as how this is a capital case, there's ample justification for extra diligence.

But the thing that bothers me is how blithely proponents of capital punishment presume guilt where a conviction was obtained, evidence to the contrary be damned. While death penalty opponents have a similar reflexive reaction on the other side, the side that wants to take a life is always going to have a higher burden in my book.

Cameron Willingham in Texas was probably innocent (certainly not guilty beyond a reasonable doubt), and was still executed, and the rancor from D-P proponents were more than happy to ignore the facts of the case in favor of chanting "but he was convicted!" over and over. Small comfort, that.

In this case, it damn well ought to be important to you that 7 of 9 eyewitnesses have recanted. A judge can adequately determine if their recantations are legitimate, or if there was any misconduct or inadequate assistance of counsel in the original trial. Take a few hours of the court's time and make sure we get this right--that's not asking too much.
10.20.2008 6:25pm
gerbilsbite:
Steve above has it: the brief isn't a rebuttal so much as a "nyuh-uh!"

An evidentiary hearing on the motion would settle the issue, and seeing as how this is a capital case, there's ample justification for extra diligence.

But the thing that bothers me is how blithely proponents of capital punishment presume guilt where a conviction was obtained, evidence to the contrary be damned. While death penalty opponents have a similar reflexive reaction on the other side, the side that wants to take a life is always going to have a higher burden in my book.

Cameron Willingham in Texas was probably innocent (certainly not guilty beyond a reasonable doubt), and was still executed, and the rancor from D-P proponents were more than happy to ignore the facts of the case in favor of chanting "but he was convicted!" over and over. Small comfort, that.

In this case, it damn well ought to be important to you that 7 of 9 eyewitnesses have recanted. A judge can adequately determine if their recantations are legitimate, or if there was any misconduct or inadequate assistance of counsel in the original trial. Take a few hours of the court's time and make sure we get this right--that's not asking too much.
10.20.2008 6:25pm
Elliot123 (mail):
"Apologies for being off-topic, but am I the only one who finds it vaguely disturbing that the lives of Government employees are considered to be more valuable than the lives of ordinary peasants like us??"

I didn't know emloyees of the city sewer department were considered more important. Are they?
10.20.2008 6:26pm
Bob from Ohio (mail):
Affidavits were obtained years later. Hardly conclusive evidence of his "innocence". Just as likely that they are lying now rather than lying then.

Seems like they got the right guy. Amnesty International or not.

I especially liked the part of the state's attorney statement of facts when he talked about the "Sylvester [Red] Coles herring". Very witty.
10.20.2008 6:27pm
Adam J:
Blue- Nice use of balderdash, but you're rebuttal of my post has only slightly less substance then the prosecutors. It's a pretty disturbing that you think being opposed to the death penalty apparently means people don't care for the truth.
10.20.2008 6:33pm
Dilan Esper (mail) (www):
Perhaps you can prove your own point by pointing out the cop killers in Cassell's social station? Maybe you could tell us about the professors and former federal judges who have killed cops? Are cops on campus in danger from all those gang banger professors?

You are just digging your hole deeper. The fact that you and many others have these assumptions-- EVEN IF THERE IS SOME REALITY BEHIND THEM-- is exactly why sometimes innocent people end up on death row. We aren't able to look past our preconceived notions.

And the Paul Cassells and Antonin Scalias of the world, who never have to worry about a wrongful conviction themselves, can comfortably assume that the claims of innocence are phony and that considering them in a court proceeding is an abomination.
10.20.2008 6:35pm
gerbilsbite:
Just as likely that they are lying now rather than lying then.

50/50 shot they were lying (or, more accurately, coerced--that seems to be the usual explanation for changing testimony) then? Sounds like reasonable doubt to me. An evidentiary hearing seems appropriate.
10.20.2008 6:37pm
Nathan_M (mail):
Adam J - I agree with you that the prosecution's argument seems extremely weak, but remember that Davis's advocates are lawyers. No doubt they agreed to take his case because they had legitimate concerns over the verdict, but now that they have taken it they are doing everything they can to keep him from being executed.

They're not searching for the truth any more than the prosecutor seems to be, the difference is that's not supposed to be their job.
10.20.2008 6:39pm
c.gray (mail):

I'll leave aside Mr. lawton's implicit suggestion that it's the defence's job to prove Mr. Coles guilty beyond a reasonable doubt


I'm not so sure this suggestion is that far off the truth when the "defence" is seeking to obtain a new trial on such grounds 19 years after the events in question, and the first recantation only appeared 11 years after trial.
10.20.2008 6:42pm
Adam J:
Bob from Ohio- Still completely undermines the witnesses credibility. "Just as likely", "Seems like"... doesn't sound like enough to support "guilty beyond a reasonable doubt" to me. And wit aside, the prosecutor does nothing to dispute the possibility Red did the deed besides some bizarre law and order reference.
10.20.2008 6:46pm
Adam J:
Nathan_M- Fair enough point regarding the defense lawyers, they're ethically bound to continue the case even if they found evidence supporting guilt, however Amnesty International isn't similarly bound.
10.20.2008 6:53pm
Nebuchanezzar (mail):
Apologies for being off-topic, but am I the only one who finds it vaguely disturbing that the lives of Government employees are considered to be more valuable than the lives of ordinary peasants like us??

Well...I think it's more police officers than government employees. I believe the theory is that police officers are much more likely than "ordinary peasants" to be in situations where it would be really useful for a criminal if the officer were killed. The laws and punishments around cop-killing are therefore particularly harsh as a deterrent.
10.20.2008 6:55pm
Franklin Drackman:
I'm a Doctor, not a lawyer, but I love the give and take here. Surprised no condemned prisoners have claimed to be allergic to the drugs used in lethal injection. While its true its the overdose of Potassium that actually stops the heart, in truth, all of the commonly used agents (Thiopental Sodium and Pancuronium) are given in doses which would be lethal given alone(theres no such thing as "Potassium Allergy" in Humans). The most severe allergic reactions end up in death, so maybe thats why its not used to challenge the whole process. Always wondered if they use alcohol before cleaning off the IV insertion site.
10.20.2008 6:58pm
byomtov (mail):
to enact vast changes to the laws of evidence based on the 150 or so Innocence Project cases. Tragic as each of these cases may be, they are not statistically significant when properly contextualized within the many millions of rapes and murders, and rape and murder convictions that occurred over the same period of time

But the IP doesn't get involved in every case. You can't claim that they've only identified a few errors out of "millions" of cases when they don't have the resources to look at all those cases.

Besides, what are these "vast changes to the laws of evidence" that you're so worried about? Requiring DNA analysis? Changing known error-prone identification techniques? Requiring taping of police interrogations?

What are you so worried about?
10.20.2008 6:58pm
TerrencePhilip:
These anti-death penalty advocates will happily tell the most preposterous lies; their own credibility seems to mean nothing to them.
10.20.2008 7:00pm
just a country lawyer:

But, unlike media reports that only mislead the public when they leave out unflattering facts, these academic "analyses" are being accepted at face value by state legislatures under pressure to enact vast changes to the laws of evidence based on the 150 or so Innocence Project cases. Tragic as each of these cases may be, they are not statistically significant when properly contextualized within the many millions of rapes and murders, and rape and murder convictions that occurred over the same period of time

But but but...if you're opposed to reform measures like requiring taping of police interrogations, "you seem to have little interest in getting at the truth" of these cases.
10.20.2008 7:08pm
Helene Edwards (mail):
See, this is why I vote Democrat. A reactionary like Mr. Cassell just can't understand that black men are not responsible for their actions. The entire criminal law is based on an assumption of non-violence that essentially asks black men to surrender their masculinity and join a canon of civilization that they never signed up for. If a black man get get into Berkeley with a 900 SAT score, then why does he have to abide these white-authored homicide statutes? Mean people suck.
10.20.2008 7:13pm
Xanthippas (mail) (www):

There has been much ado in the media lately about another "innocent" person about to be executed. Unfortunately, most of the media coverage about the impending execution of cop-killer Troy Davis has spent precious little time discussing the facts of the case. This link contains a fairly complete rebuttal of the claims made by Davis' advocates, who seem to have little interest in getting at the truth of the case. Even more poignant is this link, which has information about the victim in this case — Officer Mark Allen MacPhail.
Davis was convicted and sentenced to death in 1991. We live in strange times when the claim is made that he hasn't had due process yet.


This is a ridiculous post. How does this sort of thing even end up on this normally more thoughtful blog? There isn't even an argument against sparing Davis here; Cassell sounds like any number of ignoramuses who want to moan and complain about "criminals" who gum up the works by having the audacity not be promptly executed, and he tries to give this post some substance by linking to a counter-argument, and then making a nakedly emotional appeal to sympathy for the victim. Well, here's a though for you Cassell: I happen to think that killing an innocent man and letting off the man who may have committed the crime is the gravest insult to the victim, even beyond trying no one at all for the crime.

Should we deny him more process to prove his case or should we just execute him because we have given him enough process?

Yes, that's it exactly it for the likes of Cassell. For him, and other "conservatives", there is such a thing as "too much" process. In their minds once you've sat on death row long enough you are deserving of death and nobody really cares what got you there because that all happened a long time ago and you're just slowing down the process of "justice" at this point.

Balderdash. Davis' advocates want him not to die. Period. They are unconcerned with truth.

And yet strangely, they have spent their time actually investigating Davis' claims, as opposed to Cassell and yourself, who can only link to someone else's counter-argument and post a blog comment. Who demonstrates concern for the truth?
10.20.2008 7:30pm
krs:
Helene Edwards, I think you might be standing on the line between edgy satire and racism.
10.20.2008 7:30pm
Adam J:
Good point Helene, because Davis' entire defense obviously revolves entirely around playing the race card. Maybe if you held off posting until you read the issue, like everyone else who has posted has appeared to have done. If you did so you would see the reason people think Davis is innocent is because 7 of 9 eyewitnesses have recanted their testimony in a case built on eyewitness testimony, not because Davis is black.
10.20.2008 7:37pm
Helene Edwards (mail):
@Adam J:

You're a young fellow aren't you dear? If, like me, you had actually been in law offices in Berkeley and Oakland in the mid-70's (about the time you were born?) and worked with the Panthers and their ponytailed sympathizers, you would know that the "7 of 9" thing is just the figleaf. The actual motivation is exactly as I described it. New justifications are always minted, but the fundamental sentiments are the same. Sorry to burst your bubble.
10.20.2008 7:47pm
MarkField (mail):

Helene Edwards, I think you might be standing on the line between edgy satire and racism.


Oh no, her posts leaped over that line some time ago.
10.20.2008 7:56pm
Elliot123 (mail):
"The fact that you and many others have these assumptions-- EVEN IF THERE IS SOME REALITY BEHIND THEM-- is exactly why sometimes innocent people end up on death row."

They are not assumptions if they are real.
10.20.2008 8:09pm
Xanthippas (mail) (www):

Good point Helene, because Davis' entire defense obviously revolves entirely around playing the race card.


I'm surprised you got that much out such blathering.


If, like me, you had actually been in law offices in Berkeley and Oakland in the mid-70's (about the time you were born?) and worked with the Panthers and their ponytailed sympathizers, you would know that the "7 of 9" thing is just the figleaf.


And now, the argument from authority; presumably, you have more credibility because you used to be on the other side. Well, perhaps the latter is true, but your ramblings betray you. Clearly, you were wiser when you were younger.
10.20.2008 8:10pm
Xanthippas (mail) (www):

They are not assumptions if they are real.


The inability to distinguish between the two is the hallmark of the "conservative" mindset.
10.20.2008 8:11pm
BruceM (mail) (www):
Kazinski: yeah but they can typically afford lawyers b/c they are spoiled brats and have rich parents (the hippies and commies).

So... dark skinned poor people it is. Cops and kids - whenever one dies, someone must be punished with death. Even if the death is a complete accident, force majeure, or caused wholly by the cop/kid.
10.20.2008 8:42pm
Redlands (mail):
Marcus,


what is the relevance if the background on the purported victim? that's the exact type of appeal to passion and prejudice that has no place in a conviction and death sentence under the law.


"Purported," victim?

As for your second assertion, I think the Supreme Court resolved that issue in 1991 in Payne v. Tennessee, didn't it?
10.20.2008 10:16pm
jccamp (mail):
First, the Georgia SC decision is much more illuminating that the linked file, in terms of rebutting Davis' arguments. It is HERE.

Next, as per the decision, rebuttal testimony is always considered less credible than original in-court testimony, for sound and logical reasoning. It has always been so. The original testimony stood up to vigorous cross-examination.

Third, again as per the GASC decision, most of the rebuttal testimony does not indicate Davis is not guilty, only that previous testimony affirming in some sense Davis' guilt is now being re-written to "I don't know nuthin'".

Next, a few points. As another post pointed out, all but one person say that Coles was NOT at the party, the scene of the first shooting. The firearm used in the first shooting was almost certainly that used in the later, fatal shooting.

Two of the defendant's new witnesses claim that Coles dumped his firearm immediately after the shooting. Yet, two other witnesses for the defendant claim that Coles was still carrying the gun later in the evening. Even the defendants' own witnesses contradict each other.

The only new witness for Davis who claims to have seen the fatal shooting actually describes a scene in which Davis is the shooter. This witness agrees that the person who hit the homeless man was also that the person who shot the officer. The GASC calls this "craftily-worded and vague account that can be represented as stating one thing when it might very well state the opposite."

Government witnesses from within a community that generally is not on good terms with the police are very susceptible to pressure and manipulation. That so many years have passed before the alleged recantations and that each of the recantations says "I don't know who shot the cop." argues that the original witnesses were more truthful at the time of trial, not ten years later.

Finally, a jury of Davis' peers heard the arguments and testimony, listened to a competent and aggressive defense, and then convicted Davis. Why should the verdict be set aside so many years later, absent any suggestion of prosecutorial misconduct or judicial bias? Remove all the former government witnesses who have now suddenly developed amnesia after speaking with Davis' advocates, and there is only one single witness who claims to have affirmative knowledge that Davis is innocent, and that man claims he knowingly allowed an innocent man to be convicted so many years ago, because he didn't want to get into trouble himself. That trouble would have been because the witness is a convicted felon who was violating the terms of his parole if his story is to be believed.

I would only add this. Witness after witness claim they were pressured by the police to lie in their original statements. Is it at all believable that officers who just had a friend and colleague murdered would pressure persons to falsely accuse an innocent person. No one has more desire to see the right person charged than the police. To believe otherwise is counterintuitive, and simply plays to the prejudice against police officers often prevalent in society. It is an emotional smokescreen, which does not meet any common sense test of how officers would react.
10.20.2008 10:46pm
Joel Capello:

7 of 9 eyewitnesses have recanted their testimony


doesn't matter. he's the scum of the earth!! he's guilty!! kill him! kill him! kill him! kill him! kill him!!! BLOOOOOOODDDDDD!!!!!!

(a cop gets shot and you let his partners solve the case? you might as well have let the victim's father call the shots.)

and paul, thanks for your scare quotes around "innocent." that's only easy when it's not YOUR friend getting murdered by the government.
10.20.2008 10:51pm
jccamp (mail):
And in response to this...
"apologies for being off-topic, but am I the only one who finds it vaguely disturbing that the lives of Government employees are considered to be more valuable than the lives of ordinary peasants like us??"


The reasoning is that an attack against the agents of government is the same as a strike against the government itself. Cops or judges as individuals, acting in a capacity as just another citizen, are certainly no more valuable than any other person. However, when an agent of government is struck down to prevent the execution of official duties, then the elected lawmakers have decided that the sanctions must be greater to insure the machinery of government is not impaired by threats or violence.
10.20.2008 10:53pm
jccamp (mail):
One more link to a reasonable discussion of the trial and conviction HERE
10.20.2008 10:56pm
jccamp (mail):
And finally, I think all of the personal attacks against the OP, Judge Cassell, merely indicate the paucity of those posters' demonstrable arguments against Cassell's position.

Make an opposing argument if you will, but name-calling negates any value in the argument itself.
10.20.2008 11:53pm
byomtov (mail):
Witness after witness claim they were pressured by the police to lie in their original statements. Is it at all believable that officers who just had a friend and colleague murdered would pressure persons to falsely accuse an innocent person. No one has more desire to see the right person charged than the police. To believe otherwise is counterintuitive, and simply plays to the prejudice against police officers often prevalent in society. It is an emotional smokescreen, which does not meet any common sense test of how officers would react.

I think this misses the point.

You are right that the police would want the killer charged and convicted.

The problem comes once the police become convinced, for whatever reason, that they have the right guy. Then the desire to see him convicted may easily overwhelm any reservations they have about pressuring witnesses, etc. In other words, if the police think the guy is guilty, whether he is or not, they are very likely to do all they can to have him convicted.
10.21.2008 12:14am
jccamp (mail):
"The problem comes once the police become convinced, for whatever reason, that they have the right guy. Then the desire to see him convicted may easily overwhelm any reservations they have about pressuring witnesses, etc. In other words, if the police think the guy is guilty, whether he is or not, they are very likely to do all they can to have him convicted."

Your argument might be credible in other circumstances, such as when the investigation leads to statements taken days, weeks or months later. However, if you read the rebuttal statements, the witnesses claim that on the night of the shooting, the officers pressured them and put words in their mouth. The defendant wasn't even in custody yet. The circumstances must have been murky at best. Why would the officers within hours of the murder assume guilt or innocence on anyone's part, and start pushing witnesses to fabricate eyewitness evidence? It is far more likely that an overwhelming number of witnesses all pointed, on their own, to the defendant because he was in fact guilty.

Please remember that a jury found the witnesses credible, convicting the defendant not only of the murder, but of the original shooting and the subsequent attack on the homeless man. Apparently, the original statements seemed to mesh sufficiently that the jury found guilt above and beyond a reasonable doubt.
10.21.2008 12:21am
jccamp (mail):
I might add that the police investigators should be presumed to have some professional ability and intelligence, and that any assumption (of someone's guilt) on the cops' part would have been grounded in fact, not in the immediate hysteria of the murder. At the time most of the statements were originally taken, the police were still fact-finding.

And you really should credit the cops with wanting to catch the right guy, and not leaping to conclusions.
10.21.2008 12:26am
jccamp (mail):
"And you really should credit the cops with wanting to catch the right guy, and not leaping to conclusions."

Duh. What i was trying to say was that the cops were not leaping to conclusions, not the person posting. Sorry for the confusion.
10.21.2008 12:28am
juris_imprudent (mail):
The DA's "rebuttal" was hardly convincing. Since when do DA's (or defense lawyers for that matter) NOT try their cases in the court of public opinion - at least when they deem it in their interest to do so. That brief was a much a plea to not air his dirty laundry as it was to see justice done.

You have to wonder if this isn't a bit like the case from "The Thin Blue Line".
10.21.2008 1:46am
Innocence Matters (mail) (www):
Gosh, where to start?

Davis was convicted and sentenced to death in 1991. We live in strange times when the claim is made that he hasn't had due process yet.

Every one of the 222 DNA exonerations had years of "due process" - some have had decades of due process -- and yet they sat in prison for a crime that they did not commit. For those interested in understanding the uphill battle that the innocent face in trying to get courts to consider their evidence of innocence, read Prof. Brandon Garrett's article Judging Innocence, 108 Colum. L. Rev. 55 (2008).

a fairly complete rebuttal of the claims made by Davis' advocates

Anything but my friend! Lawton's rebuttal is nothing more than an unpersuasive pack of distortions. Let's run through some of them.

1) Lawton suggests that it is a fact that Officer MacPhail ran past Coles to get to Davis. Well only if you believe Redd Coles -- he's the only witness supporting that "fact." I guess we should rest easy if the alternative suspect says it wasn't me, it was Troy Davis. (Not sure why that same logic doesn't work when Davis says it wasn't me, it was Redd Coles. According to three witnesses, Redd confessed -- indeed bragged -- that he shot Officer MacPhail. Another six witnesses implicate Redd as the shooter.)

2) Lawton argues that Davis the only one with "a motive to shoot Officer MacPhail." Why? Because Redd says so!

The undisputed facts at trial are that this was Redd's fight from the beginning. Redd was armed that night with a .38 caliber revolver - a fact that Redd lied about when he first spoke to the police. Redd hassled Young for a beer. When Young refused, Redd threatened Young "You don't know me. I'll shoot you." Harriet Murray saw Redd hassling Young. Murray heard Redd threaten to shoot Young. Murray saw him pull a gun out of his waistband. Within seconds of the treat, Young was pistol-whipped and Officer MacPhail was shot.

Every witness at trial agreed that Davis never said a word to Young and never showed any interest in Young's beer. Maybe I'm out on a limb here, but it seems to me that the armed instigator who is suddenly confronted by an armed police officer is the guy with the motive to shoot and kill him.

3) Lawton states there is physical evidence linking Davis (as opposed to Redd) to this crime. There is none.

At best, the ballistic evidence reveals that one shell casing found (under suspicious circumstances) at a nearby bank parking lot matched the shell casings found at the scene of the Cooper shooting. At worse, the mysteriously appearing shell casing is further evidence of an overzealous prosecution. The army of police thoroughly searched the crime scene and, yet, it was a homeless man who supposedly found the casing a day later? In either scenario, the physical evidence does not link Davis to the crime anymore than it links Redd to the crime. Both men were at both locations that night.

4) Lawton says the recantations are not credible because there are too many of them! That's priceless. Would he find 5 or 6 more credible? Would he prefer 1 or 2 recantations? Can we guess what Lawton's argument would be if only 20% of his witnesses recanted?

5) Lawton suggests that the only plausible explanation for seven recantations is that the witnesses were coerced, paid, or made to feel guilty. Not a shred of evidence - let alone credible evidence - to support that accusation. It's just a "theory" that Lawton's willing to float in an effort to sway the public and defend his conviction. Hmmm, sound familiar? Maybe a little like his approach to the trial in 1991.

Here's a thought. Maybe seven of the nine witnesses recanted because their testimony was false?

Interestingly, when Lawton needed the jurors to believe these witnesses back in 1991, he implored the jurors to remember that most had did not know Davis "from a sack of salt" and, thus, had no reason to falsely implicate Troy Davis. Now that his witnesses are no longer of any use to him, they are suddenly incredible, easily manipulated, and eager to help Davis. Lawton would have you believe that the independent witnesses are willing to lie to help a man who they don't know from "a sack of salt." Sure, that makes perfect sense.

Or maybe, these easily manipulated witnesses were manipulated by the police and the prosecution in 1991?

6) Lawton states that not one witness "qualified or retracted" their statements at trial when pressed by defense. In truth, two witnesses (Darrell "DD" Collins and Dorothy Ferrell) did just that during the trial (albeit, Collins first retracted during the prosecutor's direct) and another (Monty Holmes) refused to honor a subpoena.

Lawton's suggestion that the claims of police intimidation and coercion only surfaced recently is belied by the trial record. In 1991, at trial, Darrell "D.D." Collins -- a juvenile - testified that he was interrogated for hours and threatened with arrest. It was under those circumstances that he provided a statement implicating Troy Davis. Collins "told [the detective] what he wanted to hear." T. 1135. " 'Cause [Collins] was scared, [and] didn't want to go to jail." T. 1145. The police told him "if I don't cooperate with them, that I'm gonna be in prison for ten to twelve years." T. 1135.

Dorothy Ferrell called defense counsel, hours after testifying at trial, and confessed that her testimony implicating Troy Davis was false. When Ferrell was arrested and brought back to court, she let her perjured testimony stand out of fear that if she did not stick with the story, she would be imprisoned for up to 10 years. The trial proceeded without any investigation into the claims of police coercion revealed at trial.

7) Interestingly, Lawton never attempts here is to explain why the original trial testimony is worthy of our trust. Why not? Because he cannot. The fact of the matter is that these witnesses provided highly implausible and unreliable evidence of guilty. Lawton won because he out-lawyered the defense!

Decades of scientific studies confirm that distance, lighting, duration of crime, weapon-focus, other race effect. can impede ability to encode sufficient detail to make an accurate identification later. Moreover, a witness' memory of the assailant's face is malleable. Even unintentional suggestions -- let alone the overt pressure alleged here -- can contaminate memory and lead the witness to confidently identify the wrong person. ALL THE EYEWITNESSES IN THIS CASE WERE EXPOSED TO DAVIS' PHOTO PRIOR TO THE "OFFICIAL IDENTIFICATION." The trial lawyers did NOT file a motion to suppress the identifications as unduly suggestive and inherently unreliable.

In the absence of expert testimony explaining that there is no significant correlation between accuracy and confidence, jurors typically put great weight on eyewitness certainty. Davis' trial attorneys did not call an expert; the jurors were instructed they could consider certainty when judging the reliability of these identifications.

Dorothy Ferrell was standing at least 160 feet away from the scene. It is impossible to observe sufficient facial detail at that distance. What explains her selection of Davis? The detectives showed Ferrell a single photo of Davis prior to the official identification and told her that he was the shooter. When later asked if she recognized the shooter from a group of five photos, she selected the photo previously shown to her.

The other witnesses were in the dimly-lit parking lot and in the line of fire during the few seconds that transpired from Sylvester "Redd" Coles' threat to shoot Larry Young to the shooting death of Officer MacPhail.

Stephen Sanders -- one of eight passengers in a van ordering food at the drive-thru window after a night of drinking -- was unable to identify the shooter that night. A month later, Sanders still could not identify the shooter. Neither could his companions. Yet, two years later, Sanders identified Troy Davis at trial. Memory does not improve over time.

Antione Williams initially reported that he saw an armed man (instigator) arguing with Larry Young as the instigator stood in front of Young. Williams saw the instigator pistol-whip Young and shoot Officer MacPhail. (Redd testified that he was the only one hassling Young. Redd conceded, as did the other witnesses, that Troy Davis never said a word to Young.) Over the next ten days, Williams viewed the wanted poster prominently displayed at his place of employment, with the same photo of Davis shown used in the photo array. Even after repeated exposure Williams was only 60% sure that Davis was the shooter.

Harriet Murray was in the parking lot waiting for Young to return. She saw one man (later identified as Redd) hassling Young for his beer as he walked back to the lot. She heard that man threaten Young, "You don't know me. I'll shoot you." (Redd admitted that he -- and only he - made this threat.) Murray saw him pull a gun out of his waistband. At that point, she ran for cover.

Larry Young told the police, as he bled from his untreated head injury, that he was not sure who hit him because "everything happened so fast."

Does the public have any reason to feel confident that these eyewitnesses were accurately identifying Officer MacPhail's killer? It is not even a close question.

The State's determination to kill Troy Davis will not change the truth -- Troy Davis was convicted on implausible eyewitness testimony.

8) Lawton does make one point supported by the record, "the whole process has been similarly unfair" to all of us concerned about justice!
10.21.2008 2:21am
Kazinski:
Innocence matters? Hah, the only thing that matters to those supporting Davis is the death penalty. If he was serving life without parole he'd be dead to you. Why can't he be dead to everybody?

I'm no expert on the case but clearly the key to the case is the Cooper shooting. Davis was found guilty of shooting Cooper beyond a reasonable doubt. The Redd herring won't wash because there were witnesses that saw Davis shoot Cooper. And forensic evidence linking the one gun to the two shootings. Eyewitness evidence can be problematic, but that is plenty enough physical evidence to to bolster the eyewitnesses.

Your hugely long post also undermines your credibility, its pretty typical of death penalty foes to just stir up as big a cloud of dust as possible, just to create an artificial fog around the facts. Just like the Mumia cloud of dust that is still going on.
10.21.2008 3:04am
Innocence Matters (mail) (www):
Kazinski
Innocence doesn't matter?


Hah, the only thing that matters to those supporting Davis is the death penalty.

Wow, you're quick to judge. In fact, I'm a lawyer not an anti-death penalty activist. I never spent one minute of my career or my personal life working to abolish the death penalty. This case is about innocence. The fact that Davis is on death row only makes it more abhorrent that his compelling evidence of innocence has not been heard.


I'm no expert on the case but clearly the key to the case is the Cooper shooting. Davis was found guilty of shooting Cooper beyond a reasonable doubt.

The evidence used to convict Davis of the Cooper shooting is even more problematic. Given your aversion to lengthy post not authored by Spencer Lawton or someone else expousing your views, I will spare you the discomfort of knowledge. If there comes a time when you decide to learn the facts - i.e., to read the trial transcript, the police report and the original witness statements - I would be happy to make them available to you.

In the meantime, I guess for you "ignorance is bliss."
10.21.2008 3:38am
Adam J:
jccamp - Thanks for linking the Georgia decision. It's a little more enlightening, but very disturbing that recantations in GA have to prove that original testimony was "purest fabrication". That is of course impossible, since the recanting witness' credibility is always shot- they either lied under oath before or lied under oath now. Not good for proving much of anything. Basically the "purest fabrication" standard is a a nice way to ensure recantations never are admitted.

You also mischaracterize the additional evidence- they show more then "I don't know who shot the cop"- As taken from the dissent, they show that "nearly every witness who
identified Davis as the shooter at trial has now disclaimed his or her ability to do so reliably. Three persons have stated that Sylvester Coles confessed to being the shooter. Two witnesses have stated that Sylvester Coles, contrary to
his trial testimony, possessed a handgun immediately after the murder. Another witness has provided a description of the crimes that might indicate that Sylvester Coles was the shoo
10.21.2008 11:13am
jccamp (mail):
"Basically the "purest fabrication" standard is a a nice way to ensure recantations never are admitted. "

That is simply untrue. Sworn testimony in open court is always considered more reliable than later recantations. Court testimony has been subject to cross-examination. Court testimony (and witness demeanor) has been viewed and assessed by both judge and jury. Court testimony is closer in time to the events than (sometimes years) later recantations. Court testimony is subject to impeachment in front of the trier of fact.

Affidavits of recantation lack adversarial review. Affidavits are not subject to decision of veracity by a jury or trier of fact. Affidavits, especially in this case, are created years after the facts they allege to represent. Persons who recant can be subject to pressure, bribery, coercion and failing memory, none of which are subject to cross examination. In this case, several of the affidavits fail even in presenting sworn testimony, because the recanting witnesses have refused to swear to the amended facts as alleged. Not a single witness who testified at the original trial has now declared another person responsible; rather, each has declared a newly considered lack of knowledge as to who actually committed the murder.

A jury of Davis' peers heard all of the witnesses, viewed crime scene evidence and description, and rendered a decision. Competent and vigorous representation for Davis was present and unable to shake the witnesses statements, or the jury's perception of the witnesses' veracity. Now we are asked to believe that a majority of witnesses were pressured by the police to frame an innocent man - with absolutely no foundation or suggestion of why the police would so persecute Davis - and at the same time, we should believe that these same witnesses are not being pressured to change their testimony on Davis' behalf, even though they live in a society generally hostile to the police and sympathetic to Davis.

The sole new witness who claims that Davis is definitely not the shooter is a convicted felon who remained silent for years, and whose brother is coincidentally another Davis witness. In fact, this new witness's statement can be interpreted to actually identify Davis as the killer.

Of those people who claim that another man took credit for the shooting, at least one says that he does not believe Coles, and there is certainly grounds for arguing that Coles was merely trying to enhance his reputation among his societal group.

All in all, not very convincing when compared to the scrutiny of the original trial.
10.21.2008 12:55pm
Adam J:
jccamp- I agree that a recantation don't have a tremendous amount of credibility behind it, but they also undermine the credibility of the original testimony. A recantation isn't as very likely to be achieved through coercion. Defense attorneys don't have any weight to throw around, unlike prosecutors &police. You make a claim that the neighborhood wants Davis go free &distrust cops- care to flesh that out or is it just completely spurious? Nor is making a recantation so easy, you're acknowledging you helped wrongfully put someone in jail, you're destroying your credibility, you're risking putting yourself on the hook for perjury.

You're looking at this case with blinders on when you say police had no reason to pressure witnesses. Police certainly had a reason why they would "persecute" Davis. They have a personal stake in solving the crime &ensuring their fellow officer's killer was found and punished. It woudl be incredibly hard to remain an objective investigator. What if they find enough evidence to convince themselves Davis committed the crime, but lack the evidence to convict? You think it'd they would let Davis walk? They could have pressured witnesses to testify, which a number of the recantations seemed to indicate happened.
10.21.2008 1:26pm
jccamp (mail):
J Adam -

I suppose we just disagree on the frequency and validity of testimony recantations. If, in reading the various links to the story, you have not recognized that the various eyewitnesses are neighbors and/or acquaintances of Davis, then my saying it is meaningless. However, I would refer you to this link which is the government's response to the defendant's latest motion. In particular, I suggest reading pp 45 through 48 for the rationale I have suggested. Anyone familiar with the environment will recognize the validity of the state's arguments.

One last thing, "What if they find enough evidence to convince themselves Davis committed the crime, but lack the evidence to convict?"

Do you really think that cops have two standards re: guilt, that is, the cops intuitive and unfounded sense of someone's guilt and the "beyond a reasonable doubt" standard? There is only one meaningful standard, that which is required to convict. The opinions of detectives are merely suggestive of investigative tactics, and are subject to change at a moment's notice. The only possible exception might be when cops have knowledge of evidence that will be excluded at trial because of say, search and seizure issues, but, of course, that is not the situation here. Again, no one has presented a single believable explanation about why police, only hours after a murder, would pressure innocent witnesses to lie and perjure themselves while ignoring another perfectly valid suspect. There is however, ample grounds to suggest that Davis and his anti-capital punishment advocates would encourage witnesses to consider shading former statements in the interest of helping out poor Mr Davis. Otherwise why did several witnesses provide new statements but refuse to swear to their truthfulness.
10.21.2008 1:49pm
jccamp (mail):
More:

"Nor is making a recantation so easy, you're acknowledging you helped wrongfully put someone in jail, you're destroying your credibility, you're risking putting yourself on the hook for perjury. "

Not when you claim "the cops made me do it" and you're becoming a hero for finally standing up to them. And as I'm sure you well realize, no one in government has any intention of widening the debate by charging recanting witnesses with perjury. Talk about a sideshow...

And finally, are affidavits, admittedly collected between 6 and 14 years after the fact, but only presented in 2008, really believable, even in the opinion of the defense counsel? If so, why were they not presented in their entirety during one of the several habeas procedures? I suggest it was because the lawyers for Davis recognized the essential uselessness (in legal terms) of the recantations, and so preserved them for a public relations push, hoping to gain by public clamor what they failed to achieve via the law.
10.21.2008 2:00pm
jccamp (mail):
And many thanks to Judge Cassell for inciting this riot of opinions. As always, perhaps no one changed any inclination, but the exchange itself remains instructive.
10.21.2008 2:03pm
Bob from Ohio (mail):

Still completely undermines the witnesses credibility. "Just as likely", "Seems like"... doesn't sound like enough to support "guilty beyond a reasonable doubt" to me.


Let me re-phrase then.

The affidavits are worthless. Such affidavits are always worthless.

The witnesses testified and were subject to cross examination. He was convicted and those convictions were upheld on appeal.

The only "new" evidence are bogus affidavits. There is no possible DNA evidence to prove him "innocent"

No reasonable doubt. The only people with "doubt" are anti-death penalty fanatics.

17 years and counting. Justice [to his victim] delayed is justice denied.

Kill him and be done with it.

Better?
10.21.2008 2:05pm
Opher Banarie (mail) (www):
I believe there is a bigger issue here: Our criminal justice system is not interested in defining "truth" at trial. For example, in the case of David Westerfield the defense attorneys were trying to get a plea deal before trial to take the death penalty off the table in exchange for telling the police where the murder victims body was buried. (The negotiations collapsed when the police found the body as part of their investigation.)

Obviously, the defense knew that (a) David Westerfield had murdered the girl and (b) that he knew where the body was. Yet, at trial the defense argued that the police had planted evidence to frame their client.

If both sides were in fact more interested in finding the truth than in "winning" there would be much less of this kind of arguing 17 years later.
10.21.2008 3:24pm
jccamp (mail):
As a matter of ethics, defense counsel don't concern themselves with "truth", but with providing the client with the best defense possible.

Prosecutors are enjoined to only pursue charges they believe truthful and appropriate. But in reality, the concept of "truth" as an absolute measure of recreating factual events does seem to suffer to the benefit of "our truth" and "their truth".
10.21.2008 3:45pm
Adam J:
Jccamp- "Not when you claim 'the cops made me do it' and you're becoming a hero for finally standing up to them." Who considers them heroes? Everyone realizes they either lied on the stand or lied now, nobody in their right mind would consider that heroic. I don't understand your animus towards the community. You seem to think the community is somehow organized into influencing the witnesses because of their hatred of cops. Why do you think this, because it's a black community? I don't understand this, my suspicions would be that the community is generally highly alarmed of the possibility of a convicted murder being released back into their neighborhood. And I suspect you dismiss perjury too lightly, the prosecutor obviously won't "widen the debate" before any retrial, but if a retrial occurred it would be threatened when any recanting witness testifies (as it should be in my opinion).

So just for clarification, seven of nine recanting witnesses are willing help release a murderer from prison, ruin their own credibility, anger the authorities, risk criminal prosecution, all in order to win some brownie points with the community &spite the police... thanks for clearing that up. Not to mention that Davis might not be so thankful to the witnesses who put him in prison, and if he is in fact the scum of the earth you seem to think, he might decide payback is in order. So I guess you can add endanger their own lives to the list too.
10.21.2008 3:47pm
The Skeptic:
The interesting thing is that the same people would be making the same types of arguments against the verdict if the "alternative suspect" Coles had been charged and convicted. It's not about the facts for them, it's about the death penalty. Question to those attacking the verdict in this case, and be honest: if it was proven beyond a reasonable doubt to you that Davis was the murderer, would you still be trying to undermine the verdict of death?
10.21.2008 6:09pm
just a country lawyer:

And many thanks to Judge Cassell for inciting this riot of opinions. As always, perhaps no one changed any inclination, but the exchange itself remains instructive.


maybe he would have a different view on this topic if he had ever represented individuals accused of crimes? has he? i have no idea.
10.21.2008 7:01pm
jccamp (mail):
And maybe the defense attorneys in this thread would have a different opinion if they ever had to consider more than giving an accused felon the most effective defense possible. If they had to forswear perjured testimony, character assassination, unsupported charges against honest and honorable witnesses, bogus arguments and junk science...just like the prosecution lawyers do. Or, if they had to, for instance, think about victim impact. Like a judge might...

Have you?
10.21.2008 10:05pm
jccamp (mail):
Adam,

With all due respect, you don't seem to have much experience in this. You say

"And I suspect you dismiss perjury too lightly, the prosecutor obviously won't "widen the debate" before any retrial, but if a retrial occurred it would be threatened when any recanting witness testifies (as it should be in my opinion)."

In any allegation of perjury, it's an affirmative defense to assert that the suspect has recanted the perjured testimony and subsequently corrected the record. So, generally, any recanting witness who claims to be correcting past perjury with a new statement has, in fact, not committed perjury.

In addition, a prosecutor who indicts for perjury a former government witness who has recanted in a case such as this would risk approbation for trying to coerce witness testimony via threat of prosecution. It just would not happen. Among other things, the prosecutors couldn't prove perjury. See above.

"my suspicions would be that the community is generally highly alarmed of the possibility of a convicted murder being released back into their neighborhood. "

Remember Mr. Coles bragging to anyone who would listen that he's the one who killed the officer? He was enhancing his stature with this claim.

"Why do you think this, because it's a black community?"

Are you suggesting that if I disagree with your take on this, I'm a racist? Have you ever spent any time in a poor black neighborhood? A poor community of any ethnicity? Other than driving by on the expressway, I mean...

Did you bother reading the state's response to the Davis motion? A series of appellate courts have found the traverse convincing. Maybe you should re-think whether all those learned judges are wrong and you are right.
10.21.2008 10:22pm
byomtov (mail):
jccamp,

My comment was a general one, and not related to the specifics of this case, the details of which I am unfamiliar with.
10.21.2008 11:03pm
jccamp (mail):
Your point is well taken, human nature being what it is. Perhaps the single most compelling differentiation between effective investigators and poor ones is the ability to completely shed a previous theory and quickly adapt to changing factual discoveries.

I just thought that in the Davis case, much is being made re:recanted testimony that the police in the hours immediately after the shootings were being accused of pressuring possible witnesses to perjure themselves, said accusations being the rationale behind some many people changing their stories. I was pointing out that the claimed pressure was unlikely in this instance.
10.22.2008 10:01am
Adam J:
jccamp - I'm afraid it is you the one who doesn't seem very knowledgable about perjury. Retraction of a perjury statement must be timely... typically during the same proceeding. Obviously, these retractions were not timely, as they've not corrected "the record" at all- Davis was convicted by a jury that only heard the original statement. And I am not contradicting "all the learned judges", only 4 of the 7 at the Georgia Supreme Court level.

Also, I have actually spent time working volunteering and working in depressed neighborhoods (not recently however). There is often greater mistrust of police officers in those communities, but they like criminals being taken off the street, just like anywhere else. It's just ridiculous to think there was some sort of community pressure to have folks recant &help release a murderer. The prestige Red sought to gain was with his own associates, who I agree probably were not model citizens. I don't see what that has to do with the community. I'm sorry, I didn't mean to accuse you of being racist, it's just very strange to me why you would think a community would be willing to pressure witnesses to lie in order to release a murderer.
10.22.2008 12:03pm
byomtov (mail):
Another "Innocent" Person About to be Executed."

Another "Guilty" Person Convicted of Murder.

Masters spent about ten years in prison. That's how long it took him to get due process. Others have taken longer.

Maybe Davis is guilty. I don't know. But let's admit that things can go wrong, and not sneer at the notion that there can be false convictions and that the police and prosecutors can misbehave.
10.22.2008 2:00pm
jccamp (mail):
At least where I reside, perjury cannot be proven without the state meeting an evidentiary burden that the false statement was made in an official proceeding. When confronted with contradictory statements, one of which was not made in a defined proceeding, I don't believe a prosecution is possible without meeting this burden. There is a statute of limitations, which would have tolled in this case. Also, as part of an affirmative defense of recantation, it is material that the original, perjured testimony did not affect the proceeding - something the GASC specifically found - and the recantation is made before discovery by the state of the original perjury. I believe both apply here. The statute also refers to a "continuous proceeding" - as you correctly pointed out my error - and separately "a matter." I can't find case law defining "a matter" which could conceivably include the appellate process.

I would repeat that whether theoretically possible, perjury on this case would never fly. The government would be under significant pressure to grant immunity to the witnesses, so that their altered testimony would be heard in the interests of justice.

I agree that many persons within such a community would not favor a killer returning to the neighborhood. What I disagree with is your assumption they would - or could - resist pressure not to express that view. The public response to Davis' advocates public appeals prove my point. Do you really think those persons advocating a new trial really understand the issues? or are they simply subscribing to a anti-death penalty, us-against-them mentality, fostered by Davis and his supporters? Do you really think one single person could be found in Davis' old haunts willing to sign a petition to keep Davis locked up, regardless of their personal views as to Davis' guilt?

And I wasn't limiting the reference to legal opinions to the GASC. A District Court judge, a panel from the 11th CCA and lately, the USSC have all - sometimes more than once - upheld the convictions on both procedural and factual grounds.

To be fair, a number of states, including mine, will generally grant at least an evidentiary hearing for a new trial based solely on recanted trial testimony. Georgia does not, without fairly steep burdens.
10.22.2008 7:07pm
Adam J:
jccamp- In NY the statement must be in testimony or subscribed written instrument- that's the whole point of notarizing a document. I imagine that the statute of limitations would apply to the earlier statement, but that wouldn't be the chief concern of the prosecutor. The prosecutor would be far more concerned with the witness lying now (since that's the evidence that tends to prove innocence and makes the prosecutor look bad. There is absolutely no way the prosecution would grant immunity to these witnesses, the prosecution doesn't even want the witnesses testifying considering their new affidavits, he would prefer their trial testimony read into the record. By denying immunity he puts the defense in the uncomfortable position of trying to coax them onto the stand. He'll have no compunction (nor should he) mentioning the dangers of lying under oath. That's a good thing, we could see how well the witnesses stand up to a nice vigorous cross examination &may actually deduce whether they were lying then or are lying now. If it came out in testimony that any of the witnesses were pressured into their recantations as you seem to think, he'd be reconvicted (and the defense attorneys would be in deep shit to boot).

The public response issue is confusing to me- public response only ramped up after so many witnesses recanted, not before. I'm certain there are some folks who would prefer a murderer going free to being killed, but they are an extreme minority. I'm against the death penalty (because of its applied so randomly &because our government does make mistakes, not morally), but I'd rather a known murderer be executed then be released. I also do think its possible to find a witness so corrupt that they would say Davis didn't shoot MacPhail, despite them actually seeing and testifying that he was the killer. But seven of the nine witnesses being this disturbed? No, I don't think that's possible. Red's bragging is further evidence to me, I don't think his friends would be willing to lie about that. Red could just be trying to build his "prestige" with other hoods, but its also quite possible he's telling the truth. It raises a whole lot of doubt in my mind.

Also, it was my understanding that many of the other judges did not receive all of the affidavits. I think its terrible that it took so long for this evidence to come to light, but I can't see how you're willing deny him process &kill him because of the fault of his lawyers- he had no control over this.
10.23.2008 1:52pm