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October 10, 2011

Georgia prosecutor in Troy Davis case comments on "doubt campaign"

Gerogia's legal newpaper, the Daily Report, has this notable new piece authored by Spencer Lawton, the lead prosecutor in the trial of Troy Davis, which is headlined "Prosecutor: Troy Davis appeals driven by 'doubt campaign' rather than truth."   Here is the start of the lengthy commentary:

As the lead prosecutor in the trial of Troy Davis, I can say that the case has been badly mismanaged by one of our most important institutions, one impressed with a profound public trust.  And while the criminal justice system isn't irretrievably broken, it is very badly damaged.  People are right to wonder how the system could put to death a man with so much doubt remaining.  How is this to be explained?

There are two Troy Davis cases.  Davis I was decided on the facts in courts of law, where he was fairly convicted and sentenced, and his appeals were denied.  Davis II is still under way as a public relations campaign where his innocence is proclaimed on the strength of a "doubt" that is manufactured and false, the overarching purpose being to defeat the death penalty.

The mantra has become "no physical evidence, and seven out of nine eyewitnesses recanted."  Neither is true.  There was physical (ballistic) evidence and persuasive circumstantial evidence.  Some of the so-called recantations weren't recantations at all, others were flatly unbelievable, and others were subsequently abandoned by the defense in a federal evidentiary hearing.

October 10, 2011 at 09:37 AM | Permalink


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He may be right, but how can we trust him?

See Sivak v. Hardison, 2011 WL 3907111 (9th Cir. 2011) (vacating death penalty because prosecutor did not correct informant’s perjury about absence of deals); Lambert v. Beard, 633 F.3d 126 (3rd Cir. 2011) (murder conviction vacated under Brady where prosecution failed to disclose inconsistent statement of its critical witness that named a person other than the defendant as the killer); U.S. v. Kohring 637 F.3d 895 (9th Cir. 2011) (Withheld evidence that key government witness had allegedly sexually exploited minors was material for purposes of defendant's Brady/Giglio claim warranting reversal of conviction); Johnson v. Florida, 44 So.3d 51 (2010) (“The reversal of the death sentences in this case is directly attributable to the misconduct of the original prosecutor. He knowingly presented false testimony and misleading argument to the court…”); William v. Ryan 623 F.3d 1258 (9th Cir. 2010) (case remanded for evidentiary hearing on whether defendant prejudiced where prosecutor suppressed evidence suggesting an alternate person was the perpetrator which is "classic Brady material."); Stanley v. Schriro, 598 F.3d 612 (9th Cir. 2010) (“Moreover, the increasing frequency with which innocent people have been vindicated after years of imprisonment counsels a different approach. See Samuel R. Gross et al., Exonerations in the United States 1989 through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 523-24 (2004) (noting that from 1989 through 2003 exonerated individuals “spent more than 3,400 years in prison for crimes for which they should never have been convicted . . .”); State ex rel. Engel v. Dormire, 304 S.W. 3d 120 ( Mo. 2010) (kidnapping conviction reversed where state failed to disclose letter suggesting that a prosecution witness had been paid for his testimony); Valdovinos v. McGrath, 598 F.3d 568 (9th Cir. 2010) (murder conviction vacated because "a pattern of non-disclosure permeated the proceedings against [petitioner]" which deprived petitioner of due process.); Robinson v. Mills, 592 F.3d 730 (6th Cir. 2010) (murder conviction vacated where prosecution suppressed material impeachment information concerning its key witness, Sims; namely that that Sims had worked as a paid informant for at least three local and state law enforcement agencies in multiple cases); U.S. v. Johnson, 592 F.3d 164 (C.A.D.C.,2010) (conviction for possessing heroin with intent to distribute vacated because of government's failure to disclose evidence that heroin found in defendant's bedroom was actually owned by his cousin); Cone v. Bell, 129 S.Ct. 1769 (U.S.,2009) (Remand was required, on petition for habeas corpus from Tennessee murder conviction and death sentence for review of the effect of prosecution’s suppression o prosecution’s suppression of evidence regarding the seriousness of defendant's drug problem on his sentence); Gonnella v. State, 686 S.E.2d 644 (Ga.,2009) (murder conviction reversed where prosecutor failed to disclose deal with accomplice); Simmons v. Beard, 590 F.3d 223 (3d Cir. 2009) (murder conviction and death penalty vacated because of due process violation where prosecutor failed to disclose that witness was pressured to cooperate and that a second witness committed perjury); Wilson v. Beard, 589 F.3d 651 (3d Cir. 2009) (murder conviction and sentence of death vacated because of prosecutor’s suppression of favorable information regarding witnesses criminal convictions and providing money to witnesses); Montgomery v. Bagley, 581 F.3d 440 (6th Cir. 2009) (murder conviction and death penalty vacated because of prosecutor’s failure to disclose exculpatory report from ‘witnesses who would have cast serious doubt on the State’s case.” ); U.S. v. Price, 566 F.3d 900 (9th Cir. 2009) (conviction reversed where prosecutor violated his due process duty under Brady to learn the results of investigation into criminal past of government witness); U.S. v. Reyes, 577 F.3d 1069 (9th Cir. 2009) (government violated due process by not disclosing favorable evidence discovered in parallel SEC proceedings); Douglas v. Workman, 560 F.3d 1156 (10th Cir. 2009) (murder conviction and death penalty vacated because of due process violation where prosecutor failed to disclose promise to key witness); Drake v. Portuondo, 553 F.3d 230 (2d Cir. 2009) (murder conviction vacated because of due process violation where prosecutor knew witness was testifying falsely); Harris v. Lafler, 553 F.3d 1028 (6th Cir. 2009) (murder conviction vacated because of due process violation where prosecutor suppressed promise to key witness); U.S. v. Robinson, 538 F.3d 1265 (10th Cir. 2009)(conviction reversed because of district court’s refusal to disclose informant’s mental health records to defense which violated Due Process); Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) (prosecutor presented false evidence to jury and failed to later correct the record)

Posted by: Michael R. Levine | Oct 10, 2011 12:46:30 PM

Again, why should we trust his assertions? Too many prosecutors have confimation bias--and strive for conviction at any cost, istead of justice.
The most recent Texas case of Michael Morton is a perfect example.


Michael Morton walks out of the Williamson County courthouse a free man on Tuesday with lawyer John Raley. The Texas Court of Criminal Appeals will decide whether his conviction will be thrown out. While Michael Morton begins rebuilding a life after almost 25 years in prison, his lawyers are moving forward on phase two of their quest for justice: looking into the investigators and prosecutors whose efforts sent him to prison for a murder he did not commit.

Angered by revelations of hidden evidence and apparently ignored leads that could have saved Morton from a wrongful conviction, defense lawyers have promised to conduct a vigorous investigation in the coming weeks.
Details of how that investigation will proceed remain hidden behind sealed court records, but presumably Morton's lawyers will seek to force onetime District Attorney Ken Anderson, now a district judge, and other former Williamson County officials to testify under oath in depositions.
Any new information unearthed would be added to allegations of official misconduct that are pending at the state's highest criminal court.
"Mr. Morton is the victim of a crime; he lost his wife," defense lawyer Barry Scheck said, arguing that a rush to judgment by prosecutors and investigators victimized Morton yet again, depriving him of 25 years of freedom and the chance to raise his son.

Court documents prepared by Morton's legal team focused on four allegations of wrongdoing, including the withholding of a possible eyewitness account of Christine Morton's murder and the apparent failure to fully investigate the cashing of a $20 check, made out to Christine, nine days after her death.
Recent DNA tests identified another man as a suspect in the 1986 Morton murder and the similar bludgeoning death two years later of Debra Masters Baker in Austin. The suspect, unnamed in court records, was not in custody as of Friday, officials said.

The new DNA evidence prompted Williamson County District Attorney John Bradley to join Scheck in asking the courts to throw out Morton's conviction. That request is pending at the Texas Court of Criminal Appeals, which must approve all sentences that are vacated based on actual innocence.
But defense lawyers also informed the appeals court that in the unlikely event that Morton's request is denied, they will pursue allegations of official misconduct as a second path to attack his conviction.
To further develop those allegations, Morton's lawyers and Bradley agreed to allow "limited discovery," a legal process by which information is collected or exchanged. Details about the discovery plan are hidden in sealed files, except for one: If the appeals court agrees to throw out Morton's conviction, the time for discovery ends, and the allegations of misconduct "shall remain unresolved," court records show.

The appeals court has no deadline to issue its ruling but has acted on actual innocence requests as quickly as about one month, adding a sense of urgency to Morton's legal team.
"Those are serious matters," said Gerry Goldstein, one of the state's leading criminal defense lawyers whose San Antonio firm joined Morton's cause earlier this year. "We are pursuing those. I can't discuss exactly how, but you can trust us that these will be pursued vigorously."
Bradley, district attorney for the past 10 years, said he will have a role in the investigation, though he also declined to provide details, noting that the agreement is under seal.

Bradley said his association with Anderson — the two are friends who have co-written several legal books, including one still offered for sale — will not influence his actions.

"My role is to represent the state. I believe I can do so without bias," he said via email. "I will cooperate completely in providing, to the extent I have the authority to do so, the (Innocence Project) lawyers any relevant information. It matters not to me who was involved in that discovery."
Bradley also noted that the judiciary will decide if anything improper happened a quarter-century ago. "I don't decide" that, he said. "I provide the state's side of the story."
'Suppressed' evidence
Morton's allegations of wrongdoing focus on four pieces of information that were found recently in Williamson County files but were not provided to Morton's trial lawyers.
This is reporter Chuck Lindell's 10th story on the Michael Morton case since mid-August, when DNA evidence indicated that he did not kill his wife in 1986. This story draws deeply from briefs filed by Morton's lawyers, other court records, transcripts of Morton's trial and several interviews to work around the fact that key records remain under court seal.

Posted by: Michael R. Levine | Oct 10, 2011 12:52:36 PM

"He may be right, but how can we trust him?"

If he's right, it doesn't make a particle of difference if we trust him. The case is about the facts, as shown by the evidence, and facts don't change based on the character of the lawyers. Even less do they depend on other, unrelated cases.

Posted by: Bill Otis | Oct 10, 2011 2:26:07 PM

I recently spoke with an anti-DP person in the crim justice field in NY who confirmed that for her, toward the all-consuming goal of preventing an execution--of the guilty and doubtful alike--
"""the end justifies the means""".

Combine this immoral mentality with an irresponsible media as follows, and the situation is hardly surprising:

< "Still, for 15 years nearly every news report of the Davis case continued to state, as if it were fact, that seven of nine eyewitnesses recanted. This without mentioning that the "recantations'' had been thoroughly discredited. No wonder doubt flourished." > {Spencer Lawton}

Posted by: adamakis | Oct 10, 2011 3:46:31 PM

It is curious how the "doubt campaign" and thousands of media articles never mentioned that Davis was convicted of another shooting that same night.

Posted by: DaveP | Oct 10, 2011 8:14:58 PM

The prosecutor's article was very informative and I wish he would have penned this article before now. What ethical rule bars the prosecutor from discussing the merits of allegations made in post-conviction petitions?

Posted by: justice seeker | Oct 11, 2011 3:54:38 PM

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