Update in the case re: Troy Anthony Davis

by S. Renee Greene

On October 27, 2008, Troy Anthony Davis was scheduled to die for the murder of Savannah police officer Mark Allen MacPhail in the early morning hours of August 19, 1989.

On October 22, 2008, Troy Anthony Davis filed an application with the 11^th Circuit Court of Appeals seeking authorization to file a second federal Habeas (for unlawful detention) petition, raising for the first time a freestanding actual innocence claim. Davis now claims that his execution would violate the Eighth and Fourteenth Amendments because he is actually innocent of the offense of murder. Davis claims that the prosecution knowingly presented false testimony at his trial; that the prosecution failed to disclose material evidence; and that his trial counsel was constitutionally ineffective.

By now, most folks who are interested have heard the story: Nine ‘key’ witnesses, seven recants, and three witnesses who did not come forward during trial who state that one of the two remaining witnesses actually confessed to the murder. Sylvester “Red” Coles is the one the other three witnesses point to as the liable party by his own admission.

Now comes the lone September 2008 affidavit of witness Benjamin Gordon, who testified under oath that he did not see the shooter and that Troy Davis was not in the group of people at the late night party in which the officer was killed. He again reiterates that he signed the police report without reading it “under duress” (i.e., he was threatened by the police).

All told, 26 witness affidavits were given, more than half stating that Davis either wasn’t present or that they could not positively identify him as the shooter, but only Gordon’s affidavit was considered to be good enough for the court to consider as possibly true.

“By imposing filing deadlines on all death row inmates, and by limiting condemned killers convicted in State or Federal court to one Federal habeas petition — one bite of the apple — these landmark reforms will go a long, long way to streamline the lengthy appeals process . . . .”); 141 Cong. Rec. S16892, S16913 (1995)

In this affidavit, Gordon stated that he had known since 2003 that “Red” Coles allegedly confessed to the murder of Officer MacPhail, but he did not share the information because Coles is a family member. Gordon stated that he told Coles to ‘clear it up’ because they had someone else locked away for the murder. His words were only that “Cole cried.” Though Gordon stated that Coles confessed to the murder, the court relied only on Gordon’s attestation that “Coles cried” (his reaction to being told to turn himself in). In their estimation, Coles’ grievance in tears did not constitute an admission of guilt.

Per the appellate brief in the 11^th Circuit Court of Appeals:

Gordon’s affidavit does not overwhelmingly bolster the credibility of Davis’s witnesses — including Joseph Washington, who said at trial that he saw Coles shoot the officer, and Tanya Johnson, who said at trial that Coles looked nervous after the shooting — to the point where no reasonable fact-finder would have credited the State’s witnesses…the record, including all of the post-trial affidavits, is, at best, ‘tortured’ and ‘difficult.’

Also notable is the fact that of the four witnesses who did “unambiguously” identify Davis as the shooter, three of them have recanted. Other than Coles himself, Steve Sanders, an Air Force serviceman, is the only one left who has not recanted.  

There are only four questions that remain, in the public conscience of revenge and the need for retributive bloodthirstiness:

1)      What are the motives of the witnesses who recanted?

2)      What have they to gain, except maybe to purge their own souls and lose their own freedom because they testified under oath and are now basically saying they lied?

3)      Considering that Gordon, and several others, attest to having been coerced by policemen, and that Gordon would willingly, even after waiting too long, turn in a “family member” whom he says confessed to the officer’s murder; what has he to gain except the clearing of his own conscience for sending an unrelated innocent man to his death?

4)      What will Office MacPhail’s family have to gain in never knowing who truly murdered their loved one; and that there will be every possibility that an innocent man “was” executed for it, which truth cannot be discovered post-mortem?

If, according to the court, the recants of the key witnesses are ‘tortured’ and ‘difficult,’ why are they not in ‘tortured and difficult’ in the favor of the man whom the state will execute without knowing for certain that he committed the crime which was pinned to him?

Most importantly: No ballistics evidence ever surfaced that linked Davis to the murder weapon and the trial court overlooked the testimony of other witnesses that directly links Coles to possession of the murder weapon, even the undisputed testimony that Coles threatened to shoot the homeless man, Young, only moments before Officer MacPhail was gunned down in cold blood.

The Circuit Court panel admits that it is never in the public interest to execute an innocent man who has not been categorically or morally proven “guilty beyond a reasonable doubt.” The court states again, “we cannot establish by clear and convincing evidence that a jury would not have found him guilty of Officer MacPhail’s murder.” In other words, it also cannot establish by clear and convincing evidence that Davis actually did commit the officer’s murder. Their own admission should be grounds enough to grant habeas; yet, they denied it.

Of particular note, Circuit Judge Barkett dissents the opinion of the Panel of his judicial peers. In disagreeing with the other two judges, Barkett says “While we must deal with the thorny constitutional and statutory questions before us, we also cannot lose sight of the underlying issue in this case. Simply put, the issue is whether Troy Anthony Davis may be lawfully executed when no court has ever conducted a hearing to assess the reliability of the score of affidavits that, if reliable, would satisfy the ‘threshold showing’ for ‘a truly persuasive demonstration of actual innocence,’ thus entitling Davis to habeas relief.” The judge further states “To execute Davis, in the face of a significant amount of proffered evidence that may establish his actual innocence, is unconscionable and unconstitutional.”

Barkett feels that the circumstances do not fit neatly into the narrow procedural confines used to deny Davis’ petition for a writ of habeas. He also indicates that the peer Panel inadvertently omits the fact that the procedural limitations (the one-bite of the apple guidelines) were actually made to constitutionally protect the innocent and to make certain that no miscarriage of justice takes place. The U.S. Supreme Court decided, “…the execution of a legally and factually innocent person would be a constitutionally intolerable event.”

What is undisputed in this case is that “Red” Coles was harassing and following a homeless man, Larry Young, between a pool hall and a Burger King parking lot. Troy Davis and Darrell “D.D.” Collins were present during some portion of the harassment. Someone hit Young, nearby police officer Mark MacPhail responded, and someone shot MacPhail three times. The police had no leads until Coles went to the police station the following day and verbally implicated Davis.

In other words, the police investigation proceeded in the manner that it did based solely on Coles’s statement and not because of any positive evidence presented that would have implicated Davis. Per Barkett, “though the witnesses stated they did not know what color shirts either Davis or Coles were wearing, that they identified the shooter as ‘wearing a white shirt.’ … a claim of actual innocence is a cognizable Constitutional claim … the evidence presented by Davis in support of his actual innocence claim is significant and compelling … obviously, the execution of an actually innocent individual has nothing to do with the goals of criminal punishment. Such an execution would serve no retributive purpose nor have any deterrent value. On the contrary, the execution of an actually innocent individual undermines the legitimacy of the criminal justice system’s power to punish. Likewise, the Fourteenth Amendment’s Due Process Clause prohibits states from depriving any person of life or liberty without due process of law… The concept of punishing an innocent defendant with the penalty of death simply because he did not file his papers as early as he should have is draconian.”

Although the 11^th Circuit is not Davis’ ‘court of last resort’ (he still has one more play in the U.S. Supreme Court), it would appear that, if nothing else, the case of Troy Anthony Davis certainly deserves a second look in a trial court rather than under appeals.

The execution of Troy Anthony Davis has been stayed another 30 days as of April 16 to grant time for a final appeal. If, in fact, he is innocent, hopefully the U.S. Supreme Court will take another 5-10 years to hear it. Maybe by then, something in the real killer’s soul will give way and allow a public confession to end the torment that must be lurking somewhere inside.