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August 24, 2010

"Innocence claim rejected: Troy Davis loses challenge"

The title of this post is the title of this terrific synopsis by Lyle Denniston at SCOTUSblog of a big death penalty ruling handed down today.  Here is the start of the post along with links to the looong ruling the post discusses:

Carrying out a direct order of the Supreme Court, a federal judge in Georgia made a lengthy new study of a 21-year-old murder case but then ruled Tuesday that a Savannah, Ga., man had not proved that he is innocent of killing a police officer in a fast-food restaurant parking lot.   In a 172-page opinion (issued in two parts, found here and here), U.S. District Judge William T. Moore, Jr., ruled that it would be unconstitutional to execute an innocent person, but went on to rule that Troy Anthony Davis “is not innocent.”   Treating the case as an unusual one procedurally, Judge Moore said it appeared that he was acting as a fact-gatherer directly for the Supreme Court, so any appeal by Davis may have to go directly to the Justices.  He sent a copy of his ruling to the Supreme Court.

(NOTE TO READERS: The judge’s legal and constitutional analysis of the evidence and the issues begins on numbered page 91, which is page 29 of Part II.  Up to that point, the opinion is a recitation of the evidence and the history of Davis’s challenges to his conviction.)

A year ago, the Supreme Court sent Davis’s latest challenge — one filed directly with the Justices — to the District Court in Georgia “for hearing and determination.”  The order said that the lower court should “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's] innocence.”  The Justices’ unsigned order, issued over the dissent of Justices Antonin Scalia and Clarence Thomas, was apparently approved on a 6-2 vote (Justice Sonia Sotomayor took no part in it.)  It was a highly unusual action because the Court does not often order fact-finding by a trial-level court; it more often pronounces the law and then leaves it to lower courts to implement such a ruling.  The dissenters called the action an “extraordinary step — one not taken in nearly 50 years.”

Judge Moore closed his opinion by noting that he had carried out the Supreme Court’s mandate by holding a hearing and now ruling on Davis’s habeas challenge.  “This Court,” he wrote, “concludes that executing an innocent person would violate the Eighth Amendment to the United States Constitution” — a point long hinted at but not yet specifically decided by the Supreme Court.  However, the judge went on to reject Davis’s claim of innocence, summing up: “The evidence produced at the hearing on the merits of Mr. Davis’s claim of actual innocence and a complete review of the record in this case does not require the reversal of the jury’s judgment that Troy Anthony Davis murdered City of Savannah Police Officer Mark Allen MacPhail on August 19, 1989.”

In a footnote, the judge added that “while the state’s case may not be ironclad, most reasonable jurors would again vote to convict Mr. Davis of Officer MacPhail’s murder.  A federal court simply cannot interpose itself and set aside the jury verdict in this case absent a truly persuasive showing of innocence.  To act contrarily would wreck complete havoc on the criminal justice system.”  (The judge may have meant “wreak,” not “wreck.”)

August 24, 2010 at 04:04 PM | Permalink


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A correct result. If you read between the lines a couple of weeks ago, one could see where Moore was going. I often wonder if this case would be over a long time ago had the state habeas court held an evidentiary hearing like Moore did.

Posted by: DaveP | Aug 24, 2010 5:02:25 PM

Absurd. The jury instruction in the US is presumably similar to that in the UK .... namely that a conviction should only be handed down in the absence of reasonable doubt. If the prosecution does not have an "ironclad case", then either the conviction should be quoshed or the sentence of death put aside, especially after 21 years!! Anything less is a total travesty of Justice ... as is maintained by Amnesty International:

Posted by: peter | Aug 24, 2010 5:26:28 PM

are you saying that every trial has to be perfect and ironclad?

Posted by: DaveP | Aug 24, 2010 5:44:55 PM

Davep - I am saying that the most important aspect of any trial and conviction is the evidence of guilt or innocence. If it can still be said 21 years after, that the evidence is in any sense inconclusive, then Justice demands, and yes .. more so in a death penalty case, that the conviction be quoshed .. or at the very least, that a sentence that is still capable of reversal be substituted for that of death.
This cavalier (I would say maverick) attitude that a jury decision must be defended at all costs in the face of clear and damning new evidence that adds to the doubt of guilt, is irreconcilable with any notion of Justice. This, as they say, is a "no-brainer".

Posted by: peter | Aug 24, 2010 6:17:07 PM

If abolitionists had been able to cool their jets instead of prematurely sniffing what they thought was going to be a sweet victory, it would scarcely be news that Troy Davis is still guilty.

P.S. And of course his victim is still dead.

Posted by: Bill Otis | Aug 24, 2010 6:25:16 PM

agreed a capital case requires the utmost scrutiny. But no trial is ever perfect or ironclad, especially a capital one with the trial and sentencing hearing. Back to the case at point, Davis' attorney's failed miserably to prove actual innocence because he isn't. Just like in Ohio last week, all "smoke and mirrors" attacking cases 20 years old. Davis complains as well as Keith did about this other person who committed the murders, but failed to show anything substantial to back it up. Davis has been complaining about this other man all these years, then conveniently keeps him away from the factfinder when it's time to settle it once and for all.

Posted by: DaveP | Aug 24, 2010 6:29:21 PM

Only someone as blind to Justice as Bill, and by implication Judge Moore, could ignore without question the evidence that:

· Four witnesses admitted in court that they lied at trial when they implicated Troy Davis and that they did not know who shot Officer Mark MacPhail.
· Four witnesses implicated another man as the one who killed the officer – including a man who says he saw the shooting and could clearly identify the alternative suspect, who is a family member.
· Three original state witnesses described police coercion during questioning, including one man who was 16 years old at the time of the murder and was questioned by several police officers without his parents or other adults present.

It is not feasible to set aside this evidence with the words "A federal court simply cannot interpose itself and set aside the jury verdict in this case absent a truly persuasive showing of innocence." It should be enough, as it would be in a UK court, to show that the verdict was unsafe.

Posted by: peter | Aug 24, 2010 6:39:06 PM

peter --

Has it occurred to you that the Court's 172 page order, rendered after hearing all the evidence first-hand, might be viewed as more reliable than your six-line skewed summary of one side, rendered after a second-hand (at best) and pre-judged assessment?

Posted by: Bill Otis | Aug 24, 2010 6:46:00 PM

read Judge Moore's opinion about the witness recantations. Also, the Georgia Parole Board is one of the most thorough in the nation. If they had any doubt whatsoever, they would reduce it to life.

Posted by: DaveP | Aug 24, 2010 6:50:27 PM

Since we hear that:
(NOTE TO READERS: The judge’s legal and constitutional analysis of the evidence and the issues begins on numbered page 91, which is page 29 of Part II. Up to that point, the opinion is a recitation of the evidence and the history of Davis’s challenges to his conviction.)
.. No.

Posted by: peter | Aug 24, 2010 6:53:22 PM

peter --

Thanks for directly answering the question.

Just so we'll all be clear, you have explicitly taken the position that your "six-line skewed summary of one side, rendered after a second-hand (at best) and pre-judged assessment" is as reliable as the court's 172 page (or merely 81 page, if you prefer) order, "rendered after hearing all the evidence first-hand."

You know, now that I'm getting up there in years, my self esteem needs a boost. So could you please tell me where I could get an ego like that?

Posted by: Bill Otis | Aug 24, 2010 7:08:37 PM

good point, Bill. The bottom line is that Davis was afforded an extraordinary opportunity by SCOTUS to "clearly establish innocence". He did not, not even close. You can tell that Moore put alot of time into this to get it right. Like I said in my earlier post, this Coles guy is supposed to be guilty, but Davis' attorneys hid him from Judge Moore.

Posted by: DaveP | Aug 24, 2010 7:16:22 PM

DaveP - 7 commutations in 34 years is hardly evidence of your claim for the Georgia Parole Board, The best that can be said is that in having executive power to commute, it takes its role rather more seriously than in a state such as Texas .. which has recommended 2.
With regard to Judge Moore's opinion on the witness recantation, so far as I can see he does not weigh up or make a judgment of that evidence at all - but merely refers to general legal precedence to cast doubt on the validity of giving credit to any such changed evidence. That is a reflection once again of the usual approach to appeals - that they very rarely reconsider or take account of evidence, old or new, but merely go through the well worn path of review of process. That is a mockery of Justice.

Posted by: peter | Aug 24, 2010 7:17:49 PM

how many executions has Georgia had since Gregg and how many death row inmates were granted clemency by the parole board? Give us the percentage of petitions granted out of the total cases they had to decide. It doesn't matter about 34 years.

Posted by: DaveP | Aug 24, 2010 7:21:56 PM

there have been 46 executions in GA since 1983 and 7 commutations. That is 13% of death cases reduced to life by the parole board. I would say they are doing their job quite objectively wouldn't you agree?

Posted by: DaveP | Aug 24, 2010 7:34:55 PM

DaveP - approx 13% - but the reasons given are the significant factor - eg. disproportionate punishment as compared to co-defendant, juvenile at time of offence, good behavior and support of victim family .... none for possible innocence.

Posted by: peter | Aug 24, 2010 7:37:14 PM

yes, but apparently the parole board has not had a case before it where it found "actual innocence". Has any parole board in any state ever found a death row inmate deserving of freedom due to serious concerns about actual innocence? My point was that I am sure the Georgia Board of Pardons and Paroles would not hesitate at all to commute Davis to life if it had reason to. The parole boards are not "rubber stamps". I am sure they take the awesome responsibility quite serious when someone's life is at stake.

Posted by: DaveP | Aug 24, 2010 7:43:14 PM

DaveP - I would suggest that Parole boards rarely, if ever, consider claims of actual innocence. Such claims are supposed to be resolved by courts ... and it is highly unlikely that any Parole Board would challenge a court verdict of guilt. You have too high an expectation of the role of a parole board, just as they too often have such little regard for their own role.

Posted by: peter | Aug 24, 2010 7:54:38 PM

Guys, Davis never fingered Sylvester Coles until very very late in the game. That pretty much tells you all you need to know.

Posted by: federalist | Aug 24, 2010 8:29:34 PM

I seem to remember someone on the GA Board saying that no one would be executed in that state unless they were convinced that the inmate was guilty. I believe them. Also, last week in Ohio, Kevin Keith wanted a pardon from their parole board because he was "innocent". Davis as well told the Ga Board that he was innocent also and wanted relief.

Posted by: DaveP | Aug 24, 2010 8:43:59 PM


I can't see inability to bring forward the actual criminal as being a reasonable basis for denial of relief. Certainly it is extremely helpful to a claim of actual innocence to be able to do so but it should not be held against the convict that they cannot do so.

Posted by: Soronel Haetir | Aug 24, 2010 9:02:20 PM

The point is, Mr. Haetir, that everyone agrees that Davis was at the scene. So instead of fingering Coles then and there, he waited for 17 years to allege that Coles was the killer. Those aren't actions consistent with innocence, and when you want to reopen a state court judgment based on innocence, then courts get to draw conclusions about things like that.

Posted by: federalist | Aug 24, 2010 9:07:21 PM

The idea that an innocent inmate on death row should be held responsible for identifying and proving the guilt of the actual criminal from his prison cell is as absurd and unjust as the death penalty itself. As for being at the scene, if that is all it takes to get executed , I'm really glad not to be resident in the US.

Posted by: peter | Aug 25, 2010 5:50:09 AM

"The idea that an innocent inmate on death row should be held responsible for identifying and proving the guilt of the actual criminal..."

This is called assuming your conclusion. Specifically, you are assuming that Davis is an "innocent inmate." An impartial jury of 12 which, unlike you, heard all the evidence first-hand, thought otherwise, and now a conscientious (and I might add Clinton-appointed) district judge, on direct assingnment from the Supreme Court, has endorsed their work in a lengthy, careful and analytical opinion.

The abolitionist refrain about Troy Davis's "innocence" is identical in its shrill, superior and indignant character to the same claim they made about Roger Keith Coleman. And it's identical in one other respect as well, to wit, it's identically false.

Let's face it. Troy Davis's "innocence" was, in the abolitionist eye, never going to be a product of evidence. The district court's opinion could have gone on for 1000 pages and it would have made no difference. Davis's "innocence" has become an urban myth of the America-hating Left, much in the way that George Bush's "complicity" in arranging the 9-11 attacks has become a Leftist myth. Davis's innocence MUSt be assumed, no matter what the balance of the evidence, because that assumption is the necessary predicate to slam the United States as a rogue country that willy-nilly kills people for the fun of it, especially if they're black.

This mindset is related to, although it's not exactly the same as, the one that insists OJ didn't do it. OJ was acquitted (by the criminal jury, although not the civil one), so he's not an adjudicated murderer, no doubt about that. But is he the guy who stuck in the knife? No serious person -- except those who're serious about hating the country -- thinks he wasn't.

Again, to a certain turn of mind, these episodes have long since stopped being cases and started being icons. They are the Religion of the Left. That's the reason these debates go nowhere. You can argue facts, but you can't argue religion.

Posted by: Bill Otis | Aug 25, 2010 10:22:25 AM

Somehow a conclusion that, well, the government's case wasn't ironclad but a jury DID find him guilty way back when doesn't square with the notion the judge's finding was all that careful or that analytical.

Posted by: John K | Aug 25, 2010 10:58:30 AM

John K --

The case does not need to be proved beyond all doubt. It needs to be proved beyond a reasonable doubt. It was.

I suppose we could have a system where people get aquitted on the basis of UNreasonable doubt. Let's put that on the ballot and see what percentage of the electorate goes for it.

As I said, Davis's "innocence" is like Coleman's "innocence". It has nothing to do with evidence. It has to do with abolitionist religion. And religion is perfectly respectable, but not in the role of controlling secular law.

Posted by: Bill Otis | Aug 25, 2010 12:05:53 PM


The point is that after a conviction BRD the burdens of proof shift. This is especially so, where as here, an inmate is trying to convince a federal court to set aside the judgment of a state court. In habeas the inmate has an affirmative duty to prove there was something wrong with the original proceeding, not merely that the original threshold of BRD would not be met. I also believe that the changed balance is entirely appropriate.

Posted by: Soronel Haetir | Aug 25, 2010 1:27:43 PM

Bill - the problem with your argument is that everything you utter assumes that guilt must be absolutely assumed once the trial has been completed. Whether you say it or not, I have the sense that you would prefer no appeal but a simple and quick death of the convicted. The difficulty with that approach is that we know that around 140 people, for a variety of reasons, have been freed from death row with either charges dismissed, or acquitted. Whether you personally believe those decisions were correct is immaterial - the fact is that due process decided that the original convictions were either incorrect or unsafe. At least 9 of those decisions were made as recently as 2009.
the phrase I used, which you find objection to:
"The idea that an innocent inmate on death row should be held responsible for identifying and proving the guilt of the actual criminal..."
simply states the obvious ... reliance on the present systems of review, that place the entire burden of proof of innocence on an inmate on death row, and the chance factor that a fully capable and adequately funded attorney will represent that inmate effectively to discover evidence of such quality that will meet or exceed the supremely high hurdle of proof demanded, and which may in many cases only succeed therefore with the identification of the actual guilty party .... is insane and unacceptable. The variables concerned make it certain that not all inmates, who should be judged innocent, or less culpable, will be identified by the process of review, with the unavoidable result that innocent men and women will be executed. In 34 years, since 1976, we have heard promises that the death penalty system can be improved so that mistakes cannot occur. Now we have yet another case where there is glaring evidence that malpractice and error occurred on a significant scale .. yet you are prepared to rely on a court verdict, not only of guilt but for a punishment of death, when all reason tells us that such malpractice and error should NEVER be acceptable in a trial of such exceptional seriousness that a mans life is at stake. And what makes this case so astounding that the international community has responded with such outrage on behalf of human rights, is that this man has already faced 21 years not only of incarceration, but of not knowing if each one will be his last. You give me the label "abolitionist" and I accept it. But that is not a political statement but a humanitarian one. Politics may be adversarial .... human rights should not be. And thankfully I begin to see around the US, even in Texas, those who are beginning to understand that. No doubt you will be the last.
Finally, and admitting that I have read fully the published judgment of Judge Moore, I again contest your statement that: "now a conscientious (and I might add Clinton-appointed) district judge, on direct assingnment from the Supreme Court, has endorsed their work in a lengthy, careful and analytical opinion." is in this case an adequate response to the situation that caused the reference back by the Supreme Court in the first place. Nowhere in the document is there an evaluation or testing or critique of the actual evidence presented for review. Such analysis as there is is conducted wholly on the legal principle of the presentation of such evidence. That is unacceptable.

Posted by: peter | Aug 25, 2010 2:22:05 PM

Government-speak ala 1984. Now, people who honor, nurture and defend the United States Constitution are referred to as "America-haters." Why am I not surprised that the torture cheerleader and former sucker of the government teat is unhappy that there are persons who are ever-vigilant against efforts to eradicate the protections afforded to ALL by the constitution? Nor am I surprised to once again be reminded of what type of person is the real America-hater.

Posted by: Mark # 1 | Aug 25, 2010 2:46:27 PM

"Nowhere in the document is there an evaluation or testing or critique of the actual evidence presented for review."

Huh? He goes through each piece of evidence and evaluates its veracity/reliability. Start at page 125.

Posted by: Confused | Aug 25, 2010 3:44:09 PM

Marky --


P.S. How are we doing with the Farsi lessons?

Posted by: Bill Otis | Aug 25, 2010 5:39:54 PM

Marky --

P.P.S. If you ever develop enough wattage to make something that might be mistaken for an argument, rather than spitting, be sure to let us know.

Posted by: Bill Otis | Aug 25, 2010 5:59:11 PM

peter, your response is pathetically weak. I am not advocating the view that in order to prove innocence an incarcerated person must prove who really did it. What I am saying (and you'd know this if you had any real familiarity with the case) is that it is indisputed that Troy Davis was in a position to know who killed Officer MacPhail, and yet he did not finger Coles until well over a decade after his arrest. That is not consistent with innocence, and only a fool would think otherwise.

Next time, don't bring any of that weak crap in here.

Posted by: federalist | Aug 25, 2010 7:28:59 PM

Federalist - "it is indisputed that Troy Davis was in a position to know who killed Officer MacPhail, and yet he did not finger Coles until well over a decade after his arrest."
Clearly you have difficulty reading:
Four witnesses admitted in court that they lied at trial when they implicated Troy Davis and that they did not know who shot Officer Mark MacPhail.

· Four witnesses implicated another man as the one who killed the officer – including a man who says he saw the shooting and could clearly identify the alternative suspect, who is a family member.

The fact that Davis was a witness to the shooting, if indeed he was, places him in no greater a position than other witnesses. Since Coles was the one who effectively fingered him, if Davis did know that Cole was the real killer (and there is an affidavit claiming Coles confessed to being so) then he may well have been advised by his own counsel that to make a counter-claim would have been counter productive. But who can say what was in his mind, or what he thought he saw or knew.
As this, and other examples of witness evidence in other cases show, accurate, certain, immediate recall of what has happened, especially when that event is unexpected, can be daunting, and maybe false. Pressure at or close to the time, to make that recall, often increases the likelihood of error since witnesses are highly susceptible to suggestion.
It is for these reasons that most states have or are in the process of revising and strengthening procedures for the taking of witness statements.
Grits for Breakfast has an interesting and relevant series of posts on this question of eyewitness testimony - starting with this one:
With regard to your suggestion that I "should not bring any of that weak crap here" .... I have responded to your invective before I believe and have no need to do so again.

Posted by: peter | Aug 26, 2010 3:50:29 AM

confused - a start of the section headed "Analysis", the judge makes clear the scope he has chosen to deal with the evidence:
"The Court begins its analysis by considering the cognizability of a freestanding claim of actual innocence.
Concluding that the claim is cognizable, the Court then
determines the appropriate burden of proof and whether
Mr. Davis has met that burden."
Such analysis of the evidence that follows the legal pramble is entirely colored by the totally unreasonable bar that he sets for it. Were we discussing the reversal of eyewitness claim from one or two of 9 people who gave evidence at the trial, we might have reason for healthy scepticism, but 7?!!! The judge is effectively calling 7 out of 9 witness, originally called for the prosecution, liars! If they are, then none of their evidence is reliable and the original trial may have looked very different. That trial cannot therefore be relied upon.

Posted by: peter | Aug 26, 2010 4:36:05 AM

peter --

False recantations, after years of importuning (and who knows what else) by the defense and its allies, is a rountine staple of criminal cases. I saw in all the time in the US Attorney's Office.

Troy Davis is just the next Abu-Jamal. It would make no difference if the district court's opinion here were 1000 pages long. You simply are not going to accept that these recanting witnesses are lying, even though you have never seen them and the distict judge did. Troy Davis MUST be innocent for the same reason Abu-Jamal MUST be innocent, namely, that the ideological Left has declared that It Be So. It's now less of a case than an icon (again like Abu-Jamal).

The reason you claim to have a better fix on the case from 3000 miles away than the jurors or the judge who heard it is not that you're stupid or arrogant. It's that you occupy a place on the ideological spectrum from which admitting that Davis is guilty has become heresy and simply is not to be done.

It's no longer about evidence. It's about faith. It has taken on exactly the same True Believer affect that one sees, on the Right, with the Birthers, and on the Left, with the Bush-Planned-9-11 people.

The Davis case has been examined and re-examined by our courts. The judgment is in. He did it. At some point the game is up, just as it was up with Roger Keith Coleman after years of similarly outraged protests that he was innocent.

If you have a case to make, make it to the court of appeals and/or the Supreme Court. But Troy Davis is not going to become innocent simply by virtue of insisting, however repeatedly, on a website, that he is.

Posted by: Bill Otis | Aug 26, 2010 8:41:09 AM

Bill writes: "False recantations, after years of importuning (and who knows what else) by the defense and its allies, is a routine staple of criminal cases. I saw in all the time in the US Attorney's Office."

I suspect this sums up as well as any sentence could why so many appellate rulings and this particular 172-page study by Judge Moore have about them the feel of "going through the motions" toward a jaded, predetermined outcome.

And, federalist, it's always a hoot when folks who have it rely on their guilt-dar to determine if a defendant is innocent or not. "Well, he must be guilty because he didn't do what innocent people do under those circumstances."

I envy you that gift.

Posted by: John K | Aug 26, 2010 10:40:00 AM

Bill - "Troy Davis is not going to become innocent simply by virtue of insisting, however repeatedly, on a website, that he is."
Until such time as the courts or other body come to accept that, in this case, recanting witnesses of such proportion to the whole cannot be dismissed as an aberation, or that their new testimony throws grievous doubt on the safety of the original trial process and verdict, I and every other person interested in the principles of fair trial will protest on websites like this. Every case is unique and every witness is unique. The Davis case has NOT been examined and re-examined by your courts, and will not have been until a retrial occurs. All that has been re-examined is the process that has taken place, with a desperate attempt by the judiciary to sustain a conviction and sentence in the face of certain malpractice by the police and prosecution authorities before the trial, and the failure to accept the real doubt the new witness testimony brings to the conviction. Even if Davis is guilty (and the judge accepts that there is NOT a watertight case against him in spite of his views of the witness recantations), the irregularities that have taken place must not be allowed to be endorsed by a failure to grant a re-trial. Davis has been held securely for 21 years. The state has not proved that he is a danger to anyone .... and that alone should demonstrate that, as one of the significant deciders of the death penalty (future dangerousness), the death penalty is inappropriate.
These comprehensive factors must weigh heavily on any decision to sustain the death penalty in this case, and for justice to be seen to be the priority of the legal process in Georgia and the US, a retrial is demanded.
Unless or until the courts prove in open trial that its case against Troy Davis is sound, the world body of human rights organizations and individuals will not rest in condemning the US for its obvious risk of executing an innocent man.
And as for being 3000 miles away, in this age of the internet, we are as close to this case as those sitting on the US Supreme Court and yourself.

Posted by: peter | Aug 26, 2010 10:56:17 AM


Sorry but that is a bogus position that presupposes your conclusion just as much as you claim Bill's does. One of the possible outcomes of the district court proceeding was that a new trial would be held. Davis was unable to make a credible enough showing to even reach that point.

I agree with you as far as you go on "not acting innocent" but that seems pretty much orthogonal to Davis' claims. Davis was granted an extraordinary opportunity, an opportunity of dubious legality yet could not bring forward credible evidence to even warrant the new trial you seem to believe Davis has coming as a matter of right.

And from what I have seen Bill is absolutely right on the issue of false recantations. I don't understand the mental forces at work with the phenomena but it is real and persistent enough that I will not credit, even in groups such claims without extraordinary proof.

Posted by: Soronel Haetir | Aug 26, 2010 12:05:31 PM

John K --

What can I tell you? I sat in court year after year and heard these recantations. Sometimes it's hard to tell when a person is lying, and sometimes they might as well be carrying a neon sign saying, "I'm lying."

What is "jaded and predetermined," as you put it, is your insistence that Davis is innocent, even though your acquaintance with the case is neither as close nor as neutral as those who have concluded otherwise.

And to go back for a minute to the defense importuning that brings about these false recantations: Often it's a good deal more than merely "importuning." Sometimes it's murder and the extremely credible threat thereof. I'm sure you know about this as well or better than I, since L.A. is the virtual capital of witness elimination and intimidation, especially in these drug gang cases. You have been a journalist far too long to think that the defense plays Mr. Nicey. What they play is slit-your-throat, as I'm sure you know.

As to federalist's point: If the cops accused you of murder, and you didn't do it but saw who did, how much time would you waste telling them, "You got the wrong guy. It wasn't me, it was X."

Let me guess. Three milliseconds.

When it takes the accused 17 years to come up with Mr. X, there's a message there. The message is, he's lying.

Posted by: Bill Otis | Aug 26, 2010 12:14:28 PM

Bill, I don't think Davis is innocent. In fact I think he's not. My concern is with the system's power, and sometimes its inclinations, to distort determinations of innocence and guilt. It's not Davis I care about but some innocent dude who someday finds himself on trial for murder only because some cop tinkered with the evidence.

Posted by: John K | Aug 26, 2010 12:34:22 PM

Soronel - your position in support of Bill's assertions that recantations are rarely to be trusted is itself a pre-judgment of evidence. Judge Moore clearly shared your view and therefore gave little weight to them, in spite of the fact that the state's case was substantially based on the original eyewitness statements, other hearsay evidence, and a disputed bullet forensic conclusion. As you are aware, the gun used in the crime has never been found and so no physical evidence could be brought by the prosecution. It is also suggested that the defense team made an error of judgment at the evidentiary hearing in not subpoenaing Coles, and that the judge indicated he might have been more prepared to accept the validity of more of the recantations if Coles had been available to give evidence. I have had connection with another case where it was the judge who demanded the presence of a key witness at an evidentiary hearing. If Coles presence was so vital for the known type of evidence being presented at the hearing, I can think of no good reason why the judge should not have used his powers to at least warn the defense of his expectations, if not to make that supoena himself. But it seems the rigidity of process in Georgia precluded this initiative from the judge. I find that remarkable, given that the defense had a witness willing to testify to Coles admission of guilt to her. Whatever the legal rights of this, the system is again discredited by a failure to follow through on known available evidence, and such evidence as was presented was prejudged on the basis of that ommision. That a man's life is imperilled by poor judgment of strategy by representing attorneys, without correction by a court that has already made a judgment on what evidence it needs to hear, is another worrying weakness of judicial process.
The only inferred conclusion through the arguments I have made is that due process has been stiffled by an inflexible review process designed to make the proving of innocence as impossible a task as can be imagined. I cannot know that Davis is innocent, but neither can I know that he is guilty. The judge admits there is no ironcast case against Davis, but only hearsay evidence of eyewitnesses who now recant their evidence. Given that situation, it is clearly unsafe to rely on a jury verdict made 21 years ago to the extent that a totally unnecessary death will probably now result. To err on the side of caution should be regarded as a strength of the legal process. To knowingly err on the side of risk of wrongful execution is unconscionable.

Posted by: peter | Aug 26, 2010 5:34:34 PM

Correct me if i'm wrong here but,even if you have seven recantations of eyewitness testimony out of the nine witnesses,doesn't that still leave two eyewitnesses to the murder?It seems to me that even one credible eyewitness is enough to convict someone of murder.

Posted by: Drew | Sep 22, 2011 12:50:56 AM

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