Sunday, October 05, 2008 | News
Troy Davis: Justice delayed

“We didn’t know how to navigate the system. It got to the point where my brother didn’t see a lawyer … for years.”—Martina Correia, Troy Davis’ sister

People hold pictures of Troy Davis, who was sentenced to death in 1991, during a death penalty protest in Paris last July.
MEHDI FEDOUACH/AFP/Getty Images

By Chuck Stanley

Troy Davis is waiting, and on Sunday morning when you pick up this paper, Troy Davis will likely still be waiting.

What is unsure at this time is whether he will be awaiting a new hearing in his death penalty case, a new date with the execution room in Jackson, Ga., or a decision from the United States Supreme Court on which of these two scenarios to prepare for. The court’s decision may come any time between when this story first goes to press on Oct. 2, and Monday, Oct. 6, as some readers are still skimming these paragraphs. The uncertainty of Davis’ case, now at a crossroads between finality and a return to its beginning, seems oddly appropriate. All certainty seems to have evaporated in the nearly two decades since Savannah Police Officer Mark MacPhail was tragically gunned down while trying to stop an assault on a homeless man.
   
Davis was convicted of the killing in 1991 based on testimony from nine witnesses—seven placing Davis at the scene of the crime with a gun, two stating that Davis had confessed to the murder. Since then, all but two of those nine witnesses have recanted their testimony. Most allege that they felt pressured by police to testify as they did. The two witnesses who have not changed their story include the man alleged by some to be the actual shooter, and another witness who, when first questioned by police, reportedly said he could not identify the killer.
   
At the time of his near-execution on Sept. 23, Davis had been unsuccessful in his attempts to convince Georgia’s courts to consider evidence, in the form of sworn affidavits, thoroughly contradicting or calling into question the testimony that originally sent him to death row. For those who fight against the death penalty, Davis’ story, riddled with shady testimony as it is, illustrates why the finality of the death penalty is so problematic. A closer look at the case reveals problems within Georgia’s legal system that go beyond philosophical questions about the morality of capital punishment.
   
Nonetheless, whether new evidence is heard in the Davis case may have no effect on how most people feel about the death penalty. According to the Gallup Organization, which has polling information on the issue going back to the mid-1930s, the percentage of people who say they support the death penalty for someone convicted of murder has varied only slightly between 2000 and 2007, despite the fact that the majority of post-conviction DNA exonerations—many achieved through the efforts of the Innocence Project—have happened during this time period. The most recent polls by Gallup and ABC News show roughly two-thirds of those questioned are in favor of the death penalty as a punishment.
   
Martina Correia, who is Davis’ older sister and Amnesty International’s co-State Death Penalty Abolition Coordinator for Georgia, is not familiar with the public polling data. She is confident, though, that if people open their hearts and minds and examine the issue, support for the death penalty will wane.
   
“When I first started doing work with Amnesty [International], nobody thought that we would ever get rid of the death penalty for juveniles,” she says of one of Amnesty’s victories.

Inadequate or nonexistent legal counsel

    In 2006, the American Bar Association’s Georgia Death Penalty Assessment Team submitted an evaluation of the state’s death penalty system, which recommended a moratorium on executions due to “a need to reform a number of areas within Georgia’s death penalty system.”

    Included among the problems listed in the report is Georgia’s status as the only state not to provide indigent defendants sentenced to death with counsel during habeas corpus proceedings. Inmates facing the death penalty must act as their own attorney during the appeals process if they cannot afford to hire a lawyer. This, according to the report, helps create “a situation where this critical constitutional safeguard is so undermined as to be ineffective.”

    Martina Correia says her brother learned first-hand of the difficulties involved when a prisoner with no legal training is expected to defend himself in a case that has already been decided against him. She recalls how Davis was expected to mount his defense in a break room in the prison where he was confined. With no money, no attorney and no subpoena power, there was little he could hope to accomplish.

“From ’91 to ’96, he didn’t have a lawyer,” recalls Correia. “Then the Resource Center gave him a lawyer.”

The Georgia Resource Center (GRC) is a nonprofit law office that represents indigent death row inmates in post-conviction hearings. It is funded by the state legislature. In January of 2005, the Los Angeles Times ran a story describing the organization as an overloaded operation with a staff too small to even show up to all of its clients’ hearings.

In 1996, when two men who had testified that Davis confessed to the murder of Mark MacPhail took back what they’d said, Correia thought her brother’s case would start to turn around. Things moved slowly, but Davis and Correia trusted their lawyers from the GRC. A long time passed before they realized that the center was too under-funded and spread too thin to pursue further evidence to support Davis’ innocence.

Today, Correia appreciates the efforts made by the Center, but feels that the lost time may have done more harm than good. According to Correia, Davis rarely saw a lawyer. His representation changed hands between visits as a result of turnover within the GRC.

“We didn’t know how to navigate the system,” she says. “It got to the point where my brother didn’t see a lawyer from the resource center for years.”
     
Since Davis obtained pro bono representation from attorneys for Arnold and Porter LLC a few years ago, the courts have refused to hear the evidence Davis believes could exonerate him. This may be largely due to legislation passed under the Clinton Administration. The Anti-Terrorism and Effective Death Penalty Act of 1996 was intended to streamline the execution process and limit the number of appeals capital criminals can use to delay their executions. The act limits the ability of appeals courts to overturn the rulings of lower courts unless it can be shown that the defendant did not receive a fair trial.

    Further complicating Davis’ request to have the evidence heard is the courts’ general reticence at accepting recantations of testimony. The general assumption is that witness testimony becomes less reliable with the passage of time due to the malleability of human memory.

With no physical evidence to support or contradict Davis’ innocence, the number of witnesses who now say not that their memories have changed, but that they clearly remember being untruthful in their testimony, raises serious questions about the reliability of eyewitness testimony in general. According to the Innocence Project, eyewitness misidentification was a factor in 77 percent of the more than 200 post-conviction DNA exoneration cases in the United States.      

    Anne Emanuel, a Georgia State University law professor and chair of the team that released the Georgia Death Penalty Assessment Report, points our that one recommendation of the report was for the state to adopt more standardized procedures for obtaining eyewitness testimony and confessions.      

State Rep. Stephanie Stuckey Benfield (D-Atlanta) has sponsored legislation that would do just that. One measure, assigning police administrators, who are unaware of a suspect’s identity, to oversee lineups, is intended to eliminate the possibility that a witness’s recollections might be swayed by the real or perceived expectations of law enforcement officers who are escorting them through the process . This is important, because in cases like the MacPhail murder, where DNA evidence is not available, eyewitness testimony may be the only evidence. 

“Not every criminal bleeds or spits or ejaculates or sheds at a crime scene,” says Benfield, a former defense attorney.

A Georgia Innocence Project Law Enforcement Survey conducted in 2007 showed that 82 percent of Georgia’s law enforcement agencies have “no written policy governing the collection of eyewitness evidence using live or photographic lineups or one-on-one show-up identifications.” Benfield is confident that will change. In the meantime, though, Georgia residents have little assurance that eyewitness testimony is being obtained in a way that will minimize the risk of faulty identification.
 
None of this means that the witnesses in the Troy Davis trial are more or less likely to be telling the truth now than they were 19 years ago. If Davis is given a new trial, it seems that his chances of acquittal would be great. The state would again be saddled with the burden of proof in a case two decades old without the benefit of any physical evidence.

“As a general rule, the passage of time makes it more difficult for the state,” says GSU’s Emanuel.

Martina Correia, heading home from a recent visit with her brother at the Georgia Diagnostic and Classification Prison in Jackson, was thinking beyond the facility’s lethal injection chamber, to the state’s courts and law enforcement practices: “I think [this case] will open up a lot more than the death penalty.” SP