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Tuesday, September 30, 2008
Davis trial recanting proves nothing solid
The Atlanta Journal-Constitution
An anguished gentleman writes from the British Isles to inquire as to why Georgia intends to execute a convicted cop killer whose guilt is now suspect because various witnesses have “recanted” their testimony.
The gentleman can be forgiven for his certainty that a miscarriage of justice is about to occur. It’s the odd nature of high-profile cases that crucial misconceptions are repeated so often that spin becomes fact.
The Troy Anthony Davis case is a prime example.
The Georgia Supreme Court dealt thoroughly and authoritatively with the alleged recantations in March.
The facts of the case, as recounted by Justice Harold Melton in the majority opinion, are these:
In the early morning hours of Aug. 19, 1989, Davis was at a Savannah pool hall with two friends, Sylvester Coles and Darrell Collins. When a homeless man leaving a nearby convenience store declined to share his beers with Coles, Coles followed him up the street, cursing. Davis, Collins and Coles surrounded him. Davis, from behind, struck the homeless man in the head with a pistol, badly injuring him. Collins fled. When it became obvious that police were being called, Davis and Coles fled, too.
Officer Mark MacPhail, working off-duty nearby, gave chase, shouting for Davis and Coles to stop. Coles did. MacPhail continued to pursue Davis. “Davis kept running and fired a handgun at MacPhail, who was shot and fell,” Justice Melton wrote. “Davis then stood over MacPhail smiling and fired again. Altogether, MacPhail was shot three times, once in the face, once in the right thigh and once in the chest.”
The father of two, a former Army Ranger, was dead.
Earlier in the evening, another shooting had occurred. A bullet retrieved by the hospital “was similar to bullets from the murder scene. Shell casings retrieved from the two scenes were matched with greater certainty.” Davis was identified at trial as the man who shot the earlier victim.
The defense contended at trial that Coles was the shooter. But trial evidence enabled the jury to conclude that Davis had clubbed the homeless man and had murdered Officer MacPhail.
As to the recanting witnesses, the justices noted that sworn trial testimony reflects fresher memories and includes public oaths, cross-examination, a presiding judge.
A recantation certainly raises questions about the witnesses’ trial testimony and has to be weighed as to whether the original testimony was pure fabrication.
An acquaintance of Davis, Jeffrey Sapp, testified at trial that he had admitted striking the homeless man and killing the officer. He lied, he said, because officers pressured him.
Another witness, Kevin McQueen, had testified that Davis had confessed to him in jail he had murdered MacPhail because the officer had seen his face. He said in a 1996 affidavit, after the trial, he’d lied because he was angry at Davis.
“We note,” wrote Justice Melton, “that, even if the recantations … were credited as true, they would show merely that Davis did not admit his guilt to these witnesses, not that Davis was not guilty.”
The homeless man, Larry Young, gave testimony “that tended to identify Davis as the one who struck him.” That was based on what the men were wearing and where they were standing. A dozen years later, Young said in an affidavit that he was “unable to remember what anyone looked like or what different people were wearing” and he “just couldn’t tell who did what.”
Wrote Justice Melton: “This new expression of uncertainty fails to show that Davis was not in fact the perpetrator …”
Collins said at trial in 1991 that he saw Davis strike Young — important because others testified that the same person who struck the homeless man murdered MacPhail.
A dozen years after the fact, Collins said he did not witness Davis striking Young. “This testimony does not in any way show that Davis was not guilty of striking Young and shooting MacPhail …” Melton wrote.
It boils down to this: Do you believe the witness testifying closest to the murder — or the revised testimony and memories of a decade or more later? Some of those who changed their testimony blamed police pressure. But it’s just as easy to believe that they felt pressure from opponents of the death penalty to spare Davis from the justice his crime warrants. The cop-out position now is: You can’t be certain; besides, he’ll never get out of prison.
MacPhail is an abstraction, a long-dead husband and father who’s not here to plead for his life. He’s not here with a public relations campaign and legal team trying to revise history. He is dead. Davis killed him.
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