Troy Davis:The Real Story Of Ignored Innocence

Troy Anthony Davis (born October 9, 1968) was convicted of the August 19, 1989, murder of Savannah, Georgia, USA police officer Mark MacPhail. MacPhail was working as a security guard at a Burger King when he intervened in an argument between several men in a nearby parking lot. He was shot in the heart and face without having drawn his gun. One of the men, Sylvester “Redd” Coles, went to police and implicated Davis in the killing, and Davis was arrested four days later. During Davis’ 1991 trial, many witnesses testified they had seen Davis shoot MacPhail. Two others testified that Davis had confessed the murder to them. The murder weapon was never found, and no physical evidence linked Davis to the crime. Throughout his trial and subsequent appeals, Davis has maintained his innocence. Davis was convicted and sentenced to death in August 1991.

Many appeals in state and federal courts followed. Davis and his lawyers argued that the racial composition of the jury and poor advocacy from his lawyers had affected his right to a fair trial. Seven of the original nine eyewitnesses who had linked Davis to the killing recanted all or part of their trial testimony. Several stated they had felt pressure by police to implicate Davis. New witnesses implicated Coles in the crime. The appeals were denied with courts declaring that Davis had not provided a “substantive claim” of innocence and that the recantations were unpersuasive. In July 2007, September 2008, and October 2008, execution dates were scheduled but stayed shortly before the events took place.

Amnesty International and other groups such as National Association for the Advancement of Colored People took up Davis‘ cause. Prominent politicians and leaders, including former President Jimmy Carter, Al Sharpton, Pope Benedict XVI, Nobel laureate Archbishop Desmond Tutu, presidential candidate Bob Barr and former FBI Director and judge William S. Sessions called upon the courts to grant Davis a new trial or evidentiary hearing.

In August 17, 2009, the U.S. Supreme Court, over the dissenting votes of two justices, ordered a federal district court in Georgia to consider whether new evidence “that could not have been obtained at the time of trial clearly establishes [Davis'] innocence”. The evidentiary hearing was held in June 2010, during which several former prosecution witnesses recanted their previous testimony and described police coercion. Other witnesses asserted that Coles had confessed to the killing; this evidence was excluded as Coles was not given the opportunity to rebut it. In an August 2010 decision, the conviction was upheld, with the U.S. District Court for the Southern District of Georgia declaring that the new evidence cast only “minimal doubt on his conviction”. Subsequent appeals, including to the Supreme Court, were rejected, and a fourth execution date was set for September 21, 2011. A clemency hearing by the Georgia Board of Pardons and Paroles was set for September 19. Over 650,000 people signed a petition urging the Board to grant clemency. On September 20, the Board denied him clemency.

Davis is the eldest child of Korean War veteran Joseph Davis and hospital worker Virginia Davis. The couple divorced when Davis was very young and Davis grew up with four siblings in the predominantly black, middle-class neighborhood of Cloverdale, Savannah. He attended Windsor Forest High School, where one teacher described him as a poor student. He dropped out in his junior year so he could drive his disabled younger sister to her rehabilitation. Davis obtained his high-school equivalency diploma from Richard Arnold Education Center in 1987. A teacher noted that he attended school regularly but seemed to lack discipline. Davis‘ nickname at the time was “Rah,” or “Rough as Hell” , but neighbors reported that it did not reflect his behavior; they described him as a “straight up fella” who acted as a big brother to local children. In July 1988, Davis pled guilty to carrying a concealed weapon; he was fined $250 as part of a plea agreement in which a charge of possession of a gun with altered serial numbers was dropped.

In August 1988, Davis began work as a drill technician at a plant manufacturing railroad crossing gates. His boss reported that Davis was a likable and good worker who appeared to have positive life goals. However, his job attendance was poor, and by Christmas 1988 he stopped coming to work. Davis returned to the job twice in the following months, but neither time remained for long.

On November 15, 1989, a grand jury indicted Davis for murder, assaulting Larry Young with a pistol, shooting Michael Cooper, obstructing MacPhail in performance of his duty and possession of a firearm during the commission of a crime. Davis pled not guilty in April 1990. In a hearing in November 1990, the judge barred forensic evidence from the shorts that had been retrieved during the police search of the Davis home. The judge ruled that Davis‘ mother did “not freely and voluntarily grant the police the right to search her home”. She had testified that police officers had threatened to break down her door unless she let them into her home. The Georgia Supreme Court upheld the exclusion of the evidence in May 1991, saying that the police should have obtained a search warrant.

At the trial in August 1991, the district attorney sought the death penalty. According to the prosecution, Davis had shot Michael Cooper, then met up with Redd Coles at a pool hall, pistol-whipped the homeless man Larry Young, and then killed Mark MacPhail. Trial witnesses Harriet Murray, Redd Coles, Dorothy Ferrell and Antoine Williams testified that Davis, wearing a white shirt, had struck Young and then shot MacPhail. Coles admitted arguing with Young but stated that Davis had hit him with a pistol. On cross-examination, Coles admitted that he also had a .38 pistol, but stated that he had given it to another man earlier that night. A neighbor of the Davis family, Jeffrey Sapp, testified that soon after the murder Davis had confessed to him. Kevin McQueen, a former fellow prisoner, testified that Davis had confessed to shooting MacPhail as he feared that the officer would connect him to the shooting of Cooper earlier in the evening.Cooper testified that he was inebriated when shot and said that Davis “don’t know me well enough to shoot me”. A friend of Cooper’s, Benjamin Gordon, stated that the man who shot Cooper was wearing a white T-shirt, though on cross-examination he admitted he did not know Davis and had not seen the person who shot Cooper. Darrell Collins, who had made an August 1989 police statement that he had seen Davis shoot at people in a car in Cloverdale and approaching MacPhail, recanted his statement under cross-examination by the defense, saying that he made the statement after threats by police with prison if he did not cooperate. He said in court that he had not seen Davis in possession of a gun or fire one. No murder weapon – neither the gun owned by Cole nor that said to be owned by Davis – was recovered. A ballistics expert testified that the .38 caliber bullet that killed MacPhail could have been fired from the same gun that wounded Cooper at the pool party, though he admitted doubt about this. However, he stated he was confident that .38 casings found in Cloverdale matched one allegedly later found by a homeless man near the scene of MacPhail’s shooting.

For the defense, Davis‘ mother testified that Davis was at their Cloverdale home on August 19, 1989, until he left for Atlanta with his sister at about 9 pm Davis denied shooting MacPhail, saying he had observed Coles striking Young after a quarrel about beer, but that he had fled before any shots were fired and did not know who had shot the officer. He also denied shooting Cooper.

On August 28, 1991, the jury, composed of seven blacks and five whites, took under two hours to find Davis guilty on one count of murder and the other offenses. Davis and three of his family members testified during the sentencing phase. In a final address to the jury, Davis pleaded, “Spare my life. Just give me a second chance. That’s all I ask.” He told jurors he was convicted for “offenses I didn’t commit.” As the death penalty was being requested by the prosecutors, MacPhail’s family members and friends were not allowed to testify. On August 30, 1991, after seven hours of deliberation, the jury recommended the death penalty and Davis was sentenced to death.

Since the death penalty was imposed, both the conviction and sentence were automatically appealed to the Georgia Supreme Court. Davis and his lawyers requested a new trial, citing problems with the selection of the trial site and the jury and a failure of defense lawyers to provide effective counsel.The request was denied in March 1992. In March 1993, the Georgia Supreme Court also upheld Davis‘ conviction and sentence, ruling that the judge had correctly refused to change trial site and that the racial composition of the jury did not deny his rights. The U.S. Supreme Court declined to hear an appeal in November 1993, The first round of direct appeals having been exhausted, in March 1994 an order was signed for Davis‘ execution.

In 1994, Davis began habeas corpus appeals when he made a petition in state court, stating that he was the victim of miscarriage of justice and wrongful conviction. In 1995, the federal funding of the Georgia Resource Center, which helped represent Davis, was cut by 70%, leading to the departures of most of the center’s lawyers and investigators. According to a later affidavit by the Executive Director the “work conducted on Mr. Davis‘ case was akin to triage… There were numerous witnesses that we knew should have been interviewed, but lacked the resources to do so.” The appeal stated that the testimony of the prosecution witnesses had been coerced by law enforcement personnel. The petition was denied in September 1997, with the court ruling that claims of improper law enforcement approaches should have been raised earlier in the appeal process, and the court could not usurp the jury’s role to evaluate the evidence offered during the trial. The Georgia Supreme Court affirmed the denial of state habeas corpus relief on November 13, 2000. During 2000 Davis also challenged the use of the electric chair during executions in Georgia, arguing that it constituted cruel and unusual punishment. By a 4-3 margin the Georgia Supreme Court rejected the challenge, stating once again that Davis should have raised the issue earlier in the appeal process. The decision was upheld on appeal.
Federal appeals

In December 2001, Davis filed a habeas corpus writ in the United States District Court. He submitted exculpatory affidavits that contained recantations of testimony of prosecution eyewitnesses, the testimony of a previously undiscovered eyewitness and others with information bearing on the crime. From 1996 onwards, seven of the nine prosecution witnesses recanted all or part of their trial testimony. Dorothy Ferrell, for example, stated in a 2000 affidavit that she felt under pressure from police to identify Davis as the shooter because she was on parole for a shoplifting conviction. In her affidavit, she wrote: “I told the detective that Troy Davis was the shooter, even though the truth was that I didn’t know who shot the officer.” In a 2002 affidavit, Darrell Collins wrote that the police had scared him into falsely testifying by threatening to charge him as an accessory to the crime, and asserted that “I never saw Troy do anything to the man (Larry Young).” Antoine Williams, Larry Young and Monty Holmes also stated in affidavits that their earlier testimony implicating Davis had been coerced by strong-arm police tactics. In addition, three witnesses signed affidavits stating that Redd Coles had confessed to the murder to them. The State of Georgia argued that the evidence had been procedurally defaulted since it should have been introduced earlier, and this position was accepted by the judge in May 2004, who stated that as the “submitted affidavits are insufficient to raise doubts as to the constitutionality of the result at trial, there is no danger of a miscarriage of justice in declining to consider the claim.” He also rejected other defense claims about unfair jury selection, ineffective defense counsel and prosecutorial misconduct. The decision was appealed to the 11th Circuit Court, which heard oral arguments in the case in September 2005. On September 26, 2006, the court affirmed the denial of federal habeas corpus relief, and determined that Davis had not made “a substantive claim of actual innocence” or shown that his trial was constitutionally unfair; in addition, neither prosecutors nor defense counsel had acted improperly or incompetently. A petition for panel rehearing was denied in December 2006.

Legal experts argued that a major obstacle to granting Davis a new trial was the Antiterrorism and Effective Death Penalty Act of 1996, passed after the Oklahoma City bombing, which restrained federal courts from overturning death penalty convictions, and ordering new trials. Legal authorities have criticized the restricting effect of the 1996 Act on the ability of wrongfully convicted persons to prove their innocence.
First execution date

On June 25, 2007, Davis‘ first Certiorari petition to the US Supreme Court was denied, and his execution was then set for July 17, 2007.

Davis‘ case gained increasing public exposure and support from organizations and prominent individuals. Nobel Peace Prize winner Archbishop Desmond Tutu urged the courts to agree to hear the evidence of police coercion and recanted testimony. An appeal to Governor of Georgia Sonny Perdue urging him to spare Davis‘ life was sent on behalf of Pope Benedict XVI.[49] Similar appeals were sent by singer Harry Belafonte, Sister Helen Prejean, author of Dead Man Walking, and actor Mike Farrell. Amnesty International published a report about Davis‘ case characterizing it as a miscarriage of justice and a “catastrophic flaw in the U.S. death penalty machine.” The human rights group initiated a letter-writing campaign and delivered 4,000 letters to the clemency board. William S. Sessions, former FBI Director and federal judge, called on authorities to halt the execution process, writing that “[i]t would be intolerable to execute a man without his claims of innocence ever being considered by the courts or by the executive”. Politicians and others such as Jesse Jackson, Jr. and Sheila Jackson Lee, and former Texas District Attorney Sam D. Millsap, Jr., and the organization Murder Victims Families for Reconciliation requested that the courts grant Davis a new trial. U.S. Congressman John Lewis spoke to the Georgia State Board of Pardons and Paroles, suggesting that Coles – one of the two eyewitnesses who had not recanted – was the real killer. Representatives from the Council of Europe and European Parliament also spoke out on Davis‘ case, asking U.S. authorities to halt the planned execution and calling for a new trial.

On July 16, 2007, the Georgia State Board of Pardons and Paroles granted a ninety-day stay of execution in order to allow the evaluation of evidence presented, including the doubts about Davis‘ guilt. The stay was superseded by the August 2007 decision of the Georgia Supreme Court to grant Davis’ application for discretionary appeal from the denial of his Extraordinary Motion for a New Trial. Defense lawyers requested a new trial based on statements of mistaken identity. On March 17, 2008, the Georgia Supreme Court denied the appeal by a 4–3 majority. The majority wrote that the recanting witnesses “have merely stated they now do not feel able to identify the shooter”, that the trial testimony could not be ignored, and that they “in fact, favor[ed] that original testimony over the new.” In dissent, the Chief Justice wrote that “if recantation testimony, either alone or supported by other evidence, shows convincingly that prior trial testimony was false, it simply defies all logic and morality to hold that it must be disregarded categorically”.
Second execution date

In July 2008, Davis‘ lawyers filed a petition for a writ of certiorari in the US Supreme Court, appealing from the Georgia Supreme Court decision and arguing that the Eighth Amendment creates a substantive right of the innocent not to be executed. However, an execution date was scheduled for September 23, 2008, before the United States Supreme Court decided whether to take up Davis‘ case. The Georgia Supreme Court refused to grant a stay of execution and the Board of Pardons and Paroles denied clemency without giving a reason for their decision.
Demonstration in support of Troy Davis, Paris, July 2008.

Amnesty International condemned the decision to deny clemency,[70] and the executive director of Amnesty International USA, added: “The U.S. Supreme Court must intervene immediately and unequivocally to prevent this perversion of justice.” Former President (and Georgia Governor) Jimmy Carter released a public letter in which he stated “Executing Troy Davis without a real examination of potentially exonerating evidence risks taking the life of an innocent man and would be a grave miscarriage of justice.” Reverend Al Sharpton also called for clemency after he met and prayed with Davis on death row. A stay of execution was also supported by the NAACP; the president of the Georgia state conference said “This is a modern-day lynching if it’s allowed to go forward.” Former Republican Congressman and Libertarian presidential candidate Bob Barr wrote that he is “a strong believer in the death penalty as an appropriate and just punishment,” but that the proper level of fairness and accuracy required for the ultimate punishment has not been met in Davis‘ case.

A last minute emergency stay issued by the Supreme Court less than two hours before Davis was scheduled to be put to death, halted the execution. Lawyers for Davis argued that lower courts had failed to permit a hearing to carefully examine the recanted testimony and four eyewitnesses who implicated Coles. Lawyers for the Georgia attorney general’s office argued that most of the affidavits had already been presented and reviewed, and that questions about the quality and credibility of the witnesses were raised at the initial trial.

On October 14, 2008, the Supreme Court declined to hear Davis‘ petition, and a new execution date was set for October 27, 2008.
Third execution date

On October 21, 2008, Davis‘ lawyers requested an emergency stay of the pending execution, and three days later the 11th Circuit Court of Appeals issued a stay of execution to consider a newly-filed federal habeas petition. Davis‘ supporters continued their appeals and actions; these included such as rallies held worldwide,[82] a petition with 140,000 signatures presented to the state Board of Pardons and Paroles,[80] and an appeal from the European Union calling for the death sentence to be commuted.[81] In contrast, the Chatham County prosecutors asserted that Davis was guilty and deserved the death penalty.
Rapper M1 speaks at a rally in support of Troy Davis held in 2009 in New York City

Oral arguments were heard by a three-judge panel on December 9 in Atlanta. Davis‘ lawyers again argued that exculpatory affidavits proving Davis innocent had not been examined in a court of law; they noted the witnesses who had implicated Coles, and that his photo was not included among those shown to witnesses in the case.[83][84] The Senior Assistant Attorney General argued that, in extraordinary cases, evidence of wrongful conviction could be heard at this stage of the appeals process but that in this case the recantation evidence was untrustworthy, and are generally regarded with the “highest suspicion.”[83] Multiple courts and boards had also previously declined appeals.[83] During the hearing, judge Joel Dubina commented: “As bad as it would be to execute an innocent man, it’s also possible the real guilty person who shot Officer MacPhail is not being prosecuted.”[83] Another judge, Stanley Marcus, noted that two of eyewitnesses had not changed their recollections, and that no DNA was available to categorically clear Davis.[83] After the hearing, Davis‘ sister, Martina Correia, an active campaigner for her brother stated “This is not family against family. We have no ill will against the MacPhail family. When justice is found for Troy, there will be justice for Officer MacPhail.”

On April 16, 2009, the panel denied Davis‘ application by a 2–1 majority. Judges Dubina and Marcus rejected the petition stating that Davis‘ claims having been reviewed and rejected in the past, and that the recantations were not persuasive.

Judge Rosemary Barkett, the dissenting judge, stated that it would be “unconscionable and unconstitutional” to execute Davis when evidence may establish his innocence.[86] She wrote that the procedural bars “should not prohibit the filing” of another legal challenge.[86][87] In an interview, Mark MacPhail Jr. said of his father, “He gave his life for the community and now I’m trying to help out his name and help him in some way.” Of the appeals process, he says, “The past two years we’ve had countless appeals and it just keeps on getting drug out.” Of Davis, MacPhail said, “He decided to break the law. And our law says, you kill an officer of the law, who tries to uphold it, you must be punished.”[88] The 11th Circuit issued an order extending the stay of execution for 30 days to allow Davis the opportunity to file a habeas corpus petition with the U.S. Supreme Court.[86] Davis filed a petition for habeas corpus with the U.S. Supreme Court on May 19, 2009.[89]

On August 17, 2009, the Supreme Court ordered the Savannah federal district court to “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis'] innocence.”[90][91] Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg and Stephen Breyer wrote that “[t]he substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.” Justice Antonin Scalia dissented, stating the a new hearing would be “fool’s errand” because Davis‘ claim of innocence was “a sure loser.” He was joined by Justice Clarence Thomas.[92]
Federal hearing

In response to the Supreme Court order, a two-day hearing was held in June 2010 in a federal district court in Savannah in front of Judge William Moore.[92][93] Former prosecution witness Antoine Williams stated he did not know who had shot MacPhail, and that because he was illiterate he could not read the police statements he had signed in 1989.[94] Other prosecution witnesses, Jeffrey Sapp and Kevin MacQueen testified that Davis had not confessed to them as they had stated at the initial trial.[95] Darrell Collins also recanted his previous evidence that he had seen Davis shoot Cooper and MacPhail.[94] The witnesses variously described their previous testimony against Davis as being the result of feeling scared, of feeling frightened and pressured by police or to get revenge in a conflict with Davis.[94][95] Anthony Hargrove testified that Redd Coles had admitted the killing to him. The state‘s lawyers described Hargrove’s testimony as hearsay evidence; Judge William T. Moore permitted the evidence but stated that unless Coles appeared, he might give the evidence “no weight whatsoever.”[94][95] Another witness making a similar statement was heard, but a third was rejected by Judge Moore as the claims were inadmissible hearsay because Coles was not called as a witness and given the opportunity for rebuttal.[93][96] Moore criticized the decision not to call Coles, saying that he was “one of the most critical witnesses to Davis‘ defense”. One of Davis‘ lawyers stated that the day before they had been unsuccessful in serving a subpoena to Coles; Moore responded that the attempt had been made too late, given that the hearing had been set for months.[93] State attorneys called current and former police officers and the two lead prosecutors, who testified that the investigation had been careful, and that no witnesses had been coerced or threatened. A state attorney asserted that the testimony of at least five prosecution witnesses remained unchallenged, and the evidence of Davis‘ guilt was overwhelming.[93] In July 2010, Davis‘ lawyers filed a motion asking Moore to reconsider his decision to exclude testimony from a witness to a confession by Coles,[96] but in August 2010, Moore stood by his initial decision, stating that in not calling Coles, Davis‘ lawyers were seeking to have only part of the evidence on the matter.[97]

Moore ruled that executing an innocent person would violate the Eighth Amendment, but that Davis and his legal team had failed to demonstrate his innocence. In his decision, Moore wrote: “while Mr. Davis‘s new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors.”[91] Of the seven recantations, Moore found that only one was wholly credible and two who were partly credible.[91][98] He did not consider Coles’ alleged confessions because of the failure of Davis‘ lawyers to subpoena Coles, and suggested that Davis should appeal directly to the Supreme Court. In November 2010, the federal appeals panel dismissed an appeal on the case, without ruling on its merits. They stated that Davis should appeal the case directly U.S. Supreme Court “because he had exhausted his other avenues of relief.”[99] Rosemary Barkett, one of the panel judges, later released a statement saying that though she agreed with the decision, she still believed that Davis should be given a new trial.[100]
U.S. Supreme Court appeal
A man protesting the September 21 execution date at the September 17 Occupy Wall Street rally

In January 2011, Davis‘ legal team filed a new appeal with the United States Supreme Court, alleging that the 11th Circuit appellate panel had “evinced a clear hostility” during his August 2010 appeal, and again asking for a new trial. The appeal was rejected without comment by the Supreme Court in March 2011, setting the stage for a new execution date.[102][103]

In May 2011, Amnesty International and People of Faith Against the Death Penalty asked religious leaders to sign a petition to the Georgia Board of Pardons and Paroles calling for the commutation of Davis‘ death sentence. By September 17, 2011, over 660,000 people[104] had signed the petition for clemency including Pope Benedict XVI, Archbishop of Atlanta Wilton Gregory, William Sessions (former head of the Federal Bureau of Investigation), President Jimmy Carter, representatives for the European Parliament, and Archbishop Desmond Tutu.
Fourth execution date

On September 7, 2011, Georgia set Davis‘ execution date for September 21, 2011.[106] The Georgia Board of Pardons and Paroles set a hearing for Davis‘ second bid for clemency for September 19. The Board did not grant him clemency in September 2008, but the five-member Board had three new members On September 20, the Board denied him clemency.

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