Yes: Davis advocates’ claims on evidence, recanted testimony are not true.
This guest column originally appeared in the AJC in October 2008.
Many people are concerned that an innocent man is about to be put to death. I know this and I understand it. I am not likewise concerned, however, and I want to explain why.
The only information the public has had in the 17 years since Troy Davis’ conviction has been generated by people ideologically opposed to the death penalty, regardless of the guilt or innocence of the accused.
While they have shouted, we have been silent. The canons of legal ethics prohibit a lawyer — prosecutor and defense counsel alike — from commenting publicly in a pending criminal case. Now that the U.S. Supreme Court has ruled, the case is over and I can tell our side.
First, Davis’ advocates have insisted that there was no physical evidence in the case. This is not true.
Crime lab tests proved that the shell casings recovered from the shooting at a party earlier in the evening were fired from the same weapon as the casings recovered from the scene of Officer Mark Allen MacPhail Sr.’s murder. Davis was convicted of that shooting.
And, while it isn’t physical evidence, consider the “testimony” of MacPhail himself: When he comes to the rescue of a homeless man being harassed and pistol-whipped, the officer ran past Sylvester Coles on his way to catch Davis. This makes Davis the only one of those two with a motive to shoot MacPhail. Yet Davis’ lawyers argue to condemn Coles for shooting MacPhail. Why would he have shot him?
In fact, Davis’ advocates are eager to condemn Coles based on evidence far weaker than their characterization of the evidence against Davis. Where is their sense of fairness? This is the same Coles who promptly presented himself to police, and who was advised by counsel to tell all that he knew — with his lawyer not even present. Which he did. No lawyer who even faintly suspects a client of criminal conduct would let him talk to the police without counsel.
Second, they claim that seven of nine witnesses have recanted their trial testimony. This is not believable. To be sure, they’ve produced affidavits; a few handwritten and apparently voluntarily and spontaneous, except for concluding with the words, “further the affiant sayeth not.” Who wrote that stuff? The lawyers, perhaps?
The law is understandably skeptical of post-trial “newly discovered evidence.” Such evidence as these affidavits might, for example, be paid for or coerced or the product of fading memory. If every verdict could be set aside by the casual acceptance of a witness’s changing his mind or suggesting uncertainty, decades after the event, it is easy to see how many cases would have to be tried at least twice (perhaps ad infinitum). Thus, the law sets strict standards for such newly discovered “evidence.”
For example, it cannot be for a lack of diligence that the new evidence was not discovered sooner, and the defendant is expected to present that evidence at the earliest possible time. Yet these affidavits were not offered in a motion for new trial until eight days before the first scheduled execution in 2008, 17 years after Davis’ conviction. If this affidavit evidence was so compelling, why didn’t they rush to seek a new trial in 2003 when they had most of the affidavits they now rely upon? Or collect those affidavits earlier? Each of the “recanting” witnesses was closely questioned at trial by lawyers representing Davis, specifically on the question whether they were in any way pressured or coerced by police in giving their statements or testimony. All denied it.
Third, they claim that their “newly discovered evidence” hasn’t been adequately considered by the courts. This is not true. The affidavits, in various combinations, had already been reviewed by 29 judges in seven different types of review over the course of 17 years.
The trial was fair. Davis was represented by superbly skilled criminal defense lawyers. He was convicted by a fair jury (seven black and five white members). The jury found that Davis, after shooting another man earlier in the evening, murdered a police officer who came to the rescue of a homeless man Davis had beaten.
Officer MacPhail had never even drawn his weapon.
Spencer Lawton, former district attorney for Georgia’s Eastern Judicial Circuit, prosecuted the Davis case in 1991.
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