Friday, June 29, 2007
News

Bad luck row?

Sister appeals to death penalty supporters to avert execution

Last week, the U.S. Supreme Court (the court building is shown here) refused to review the case against Troy Anthony Davis (inset, with his mother) who was convicted in 1991 of murdering police officer Mark Allen MacPhail in Savannah. CREDIT: Alex Wong/Getty Images

By Stephanie Ramage

Anti-death-penalty activist Martina Correia has adopted an unusual approach in her efforts to avert her brother’s execution in Georgia: She’s appealing to those who support the death penalty.

“People who support the death penalty can be helpful,” says Correia, who volunteers for Amnesty International. “If they believe in the death penalty, they probably want to preserve the integrity of the legal process, so I think they would take a lot of interest in Troy’s case, because when you won’t even give him a new trial despite all these problems with the case, something is wrong. They would want to be 100 percent certain of his guilt.”

She’d welcome cards and letters from them.

In 1991, Correia’s brother, Troy Anthony Davis, was convicted of the 1989 slaying of Savannah Police Officer Mark Allen MacPhail. The officer was working an off-duty security job at a Burger King in the parking lot of a Greyhound Bus terminal when a gunman shot him twice, once in the chest and a second time in the face as the officer lay dying on the ground. Correia has said she wants justice achieved, not only for her brother, but for MacPhail’s family, and that can’t happen if the wrong man is executed.

Davis has always said he was innocent and claims his conviction was based on false or coerced testimony.

All but two of the witnesses who claimed to have been present in the parking lot the night of the crime have recanted their testimonies.

“The witnesses that the prosecution drew a line under to convict Troy, of those nine, six have recanted and one has given testimony that contradicted trial testimony,” says Jay Ewart, an attorney with the Washington, D.C., law firm of Arnold and Porter, who has taken on Davis’ defense pro bono.

What Davis, now 38, has wanted since his conviction is a new trial. But, while recanted testimony may be a factor in determining whether a person convicted of a capital crime should be given a new trial, according to Curt Nesset, a professor of law at the University of Georgia, it is the quality of the recantations rather than the number that should be considered.

“You’re dealing with people who have already lied,” says Nesset, who is currently teaching a course on capital punishment cases. “So, the question then becomes ‘were they lying then, or are they lying now?’”

The circumstances surrounding the original testimony, as well as the quality of the testimony itself, would have to be weighed against the circumstances surrounding the recantation, he says, as well as the quality of the recantation.

Of the two remaining witnesses in Davis’ case, one told police on the night of the shooting that he would not recognize the shooter if he saw him again. Ewart says a bystander has since given a sworn affidavit that the shooter was carrying the gun in his left hand; Davis is right-handed.

Nonetheless, on June 25, the U.S. Supreme Court refused to review Davis’ conviction.

Ewart explains that the court “gets thousands and thousands of review requests. It’s like a lottery. I guess Troy’s case didn’t stand out.”

Which means that Davis’ only remaining option is to ask the state pardons and parole board for clemency. That process cannot begin until after the state has worked with Savannah authorities to set an execution date.

Luck and circumstances
Ewart says the problem, as he sees it, is that the flaws in the handling of Davis’ case came to light after his trial in Savannah, when he was already in the federal habeas system, meaning that any appeals at that point would have to be based on a violation of constitutional rights, not on things like questionable testimony that would have been dealt with at the state district court level.

“It’s a little intricate,” says Ewart.

“At the federal level, you can’t get relief based on innocence—you have to get relief based on constitutional rights.”

Ewart and Correia say the likelihood of Davis getting a new trial plummeted as one external factor after another turned against his favor. The worst and most significant of these developments, for Davis and other death row inmates, may have been the 1995 federal defunding of the Georgia Appellate Practice and Educational Resource Center. At that time, the center received 70 percent of its funding from a federal grant and employed eight attorneys who monitored or assisted in all of Georgia’s death row cases. According to a statement submitted to the court by Mary Elizabeth Wells, who worked at the center, after the feds pulled the funding, all the attorneys left except herself and one other.
“This left only Steve Bayliss and myself as staff attorneys along with one investigator … and one member of support staff,” Wells wrote, “to shoulder the resource center’s entire burden of administrative duties, its involvement in approximately 80 capital cases in various stages of post conviction review—most of which had been handled
by staff members other than Steve and myself and required extensive time with which to become familiar—and its responsibilities to locate volunteer counsel for all
of Georgia’s death sentenced inmates if we could not represent them ourselves. These tasks were particularly daunting given that several experienced attorneys had left the office, and at the time, I had only five years experience doing capital habeas work and Steve had only four years experience.” The 80 or so cases the two handled involved “113 inmates facing execution.” She continued, “In the time between our defunding and Mr. Davis’ hearing, we also went through both a federal and an internal audit.” They also moved their office twice during that year.

The two asked the American Bar Association’s Post-Conviction Death Penalty Representation Project to help them locate volunteer counsel, but because the federal government had defunded all the centers like theirs nationally, the project was overwhelmed with requests for help. In the midst of all this, only the Georgia Supreme Court offered a shred of relief. Chief Justice Robert Benham sent letters to every law firm in the state with more than 20 attorneys expressing the desperate need for volunteer counsel and imploring attorneys to step up. “As a result of this campaign,” wrote Wells, “we did locate counsel for several cases, but Mr. Davis’ case was not one of them.”
As Ewart reviews this and other developments in Davis’ nearly 17-year case history, he says “It’s been a bout of luck and circumstantial happenings that are just horrible.”
Correia believes that there is still a chance her brother’s sentence can be commuted to life without parole—the maximum clemency the pardons and parole board could show
in the case.

But opinion editors at the Savannah Morning News are satisfied he’s had his chance. On June 27, they wrote: “No one wants to see anyone executed based on tainted evidence. But many of his claims have already been heard—and tossed out—in several courts. Now add the highest court in the land to that list. The Georgia Board
of Pardons and Paroles is expected to get a clemency plea in a last ditch effort to stop the execution. Board members should be as merciful as the killer who looked down the gun barrel at a bleeding police officer and pulled the trigger.” SP