Troy Davis: Less than innocent, but an injustice occurred in executing him
A friend at work suggested I read Charles Lane's column in the Washington Post on the topic of Troy Davis' guilt in the murder of Officer McPhail. I read the column, which helpfully linked to Judge Moore's 174 page decision denying Davis' petition to seek to avoid the death penalty assessed against him.
After reading Lane's column, and more importantly Judge Moore's decision, I concluded there is reason for people to have concluded that Troy Davis was guilty of murdering the off-duty police officer McPhail. However, I also concluded that Troy Davis' original trial was problematic in how evidence of another crime on the same night was used against Davis, and that Judge Moore's weakest argument was his belittling of the various witnesses' affidavit and live testimony that another person, Coles, was the shooter.
In my opinion, Judge Moore should have given Davis' lawyers time to rectify their failure to subpoena Coles. This hearing was not a low impact, soft tissue car accident case where a person who loses just loses some money. This was a case involving a man's life. So what that the lawyers for Davis failed to initially call Coles as a witness. Pushing the case back a week to let the lawyers subpoena Coles would not have prejudiced the prosecution, who also could have subpoenaed Coles in light of the expected testimony from other witnesses that Coles' "confessed" to the murder.
Judge Moore, at page 154, footnote 87, stated that if Coles testified, he'd have either admitted the truth of the hearsay statements offered by the other witnesses or disputed them. Judge Moore forgot about a third possibility: that Coles, if called to the witness stand, could have invoked the 5th Amendment and refused to testify (Under Georgia law, there is no statute of limitations for murder). If he did, Coles would have been deemed "unavailable" and Judge Moore would have had reason to give more weight, in this fairly unusual style of hearing, to all third party witness statements of Cole's "declaration against interest." For a "declaration against interest" is an exception to the hearsay rule, and could have allowed Judge Moore to take the statements more seriously than he did.
Reading this article from The Daily Report, a law oriented magazine from Georgia, which article reports on what was occurring in the hearing before Judge Moore before his ultimate ruling, Judge Moore was quite transparent that he was not interested in revisiting his ruling on the hearsay issue. That is what I found troubling.
Still, we need to keep in mind that Judge Moore's job was to determine if there was sufficient evidence to "clearly establish( ) petitioner's innocence..." In other words, it was not enough for Davis and his lawyers to prove there was doubt about his guilt. Davis and his lawyers needed to prove Davis was clearly innocent. That, folks, is one tough burden.
Judge Moore's 174 page decision is curious to me because I might well have started with the Coles-as-shooter evidence if I was not results oriented. For if one believes Coles is the shooter, that would surely be clear evidence of innocence. Yet, Judge Moore placed that discussion near end of his opinion, and was clearly looking for ways to minimize that evidence in a way that could lead a reasonable observer to analogize the situation to the constable who says "Nothing to see here..."--when there is something to see.
Judge Moore also wrote extensively about witnesses identifying Coles as wearing a yellow shirt--a tank top--and Davis wearing a white shirt--a t-shirt. But the witness testimony he cites finds them distinguishing on the basis of the shirts' colors, not whether one was a t-shirt and one was a tank top. Yet, Judge Moore never asked in his opinion, "Is it possible for people to mix yellow and white t-shirts at 11:30 at night?" Judge Moore never asked in his opinion "Why did the prosecution try to pin the earlier in the evening Cooper shooting on Davis? Was it because the prosecution knew it was prosecuting a young man, Davis, with no previous felony assault or shooting charges? Isn't there something to the fact that the fellow who shot Cooper was wearing a white 'Batman' shirt--and none of the witnesses who saw Davis at the scene of McPhail's murder said he had a white 'Batman' t-shirt?"
Judge Moore was definitely troubled by the weak ballistics evidence, and rightly denigrates the prosecution's lame attempt to cite to evidence not brought out in trial about supposedly bloody shorts worn by Davis. As Judge Moore noted, there was no testing to show (1) whether there was, in fact, blood on the shorts, (2) if there was blood, whose blood was on the shorts, or (3) how the blood, if it was blood, got there. Davis was present when McPhail was shot, after all, but is that evidence he was the shooter?
I say this because, if Judge Moore was troubled by the prosecution's very weak ballistics evidence, he should have been troubled as well about the prosecution using the Cooper shooting to taint Davis in front of the jury. This was already a highly charged case since the murder was of a police officer, even though he was off duty and acting as a private security officer. Nobody, black or white, likes people who shoot police officers, and you can count me in that sociological observation.
But once Judge Moore was admittedly troubled by those circumstances, it is difficult to support Judge Moore in his construction of his decision, where he relegates to the end of his decision the issue of Coles' confessions to various people--and deciding it was of little consequence. Again, much of Judge Moore's reasoning concerns reading Coles' mind in ways to exonerate Coles. If Judge Moore thought Coles' mind needed to be read, he should have continued the trial for another week to get Coles to the witness stand--and see if he invoked the 5th Amendment against self-incrimination.
Lane's column is important because, despite pronouncing Davis guilty, he recognizes the Georgia Board of Parole acted unjustly in not commuting the sentence to life without parole based upon the overall testimony of the various persons and that eyewitness, not objective, testimony formed the crux of the guilty finding.
Overall, Lane overstates the level of guilt of Troy Davis. But reading Judge Moore's decision, I am more convinced it would be wrong for anyone to say Troy Davis was innocent. He was probably guilty, which is a long way from clearly innocent. I write this blog post because I am now far less than impressed that Davis' case presented a situation where "7 out of 9 witnesses recanted." Sorry, the recanting evidence was far weaker than I expected, and Judge Moore's analysis of the allegedly recanting witnesses' testimonies is the most convincing aspect of his opinion.
I am now convinced, more than I was before, that Judge Moore owed Davis a week's continuance of his petition hearing to see if his lawyers could subpoena Coles to the stand. It would have been important to see if Coles tried to testify, or invoked the 5th Amendment. Had Coles testified, and was credible on his own behalf, it would have been the final reason to conclude Davis was the shooter and obviously guilty. If, however, he testified and was not credible, that would have, in turn, given more credibility to the witnesses who said Coles confessed to them. If Coles invoked the 5th Amendment, Judge Moore would have had a harder time denigrating the third party witness testimonies, both in affidavits and live testimony.
Judge Moore's failure to grant a short continuance, however, pales in comparison with the Georgia Board of Parole, which had the power (not the governor, at least in Georgia) to commute Davis' sentence to life without parole. If Coles, at the end of his life, comes forward and admits he was the killer, there will be shame on us all, but none more so than the Board of Parole, which should have exercised its discretion to commute Davis' sentence to life imprisonment or even life imprisonment without parole. The Board of Parole should have been a failsafe, but it failed.
Notwithstanding the conclusion regarding the Board of Parole, it is mistake for opponents of the death penalty or those opposed to Davis' execution to say Davis is innocent. Davis was already in the wrong place at the wrong time, and among people who were less than credible due to life's hard knocks. There is, however, something wrong with our death penalty system, and the older I get, the more I see its arbitrariness. I have always favored the death penalty as a general proposition (Think Manson, think Dahmer, think Bundy, etc.). But the exceptions to invoking the death penalty get wider in scope the more one sees DNA evidence exonerate people who were previously found guilty and sentenced to death. We can now add cases like this one, where a guy like Davis is likely guilty of murder, but we cannot be so sure that we ought to have executed him.