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Walter Jones Columnist

Published Tuesday, September 30, 2008

Why courts refused to give Davis new trial

The stay Troy Davis received less than two hours before his scheduled execution Tuesday leads most people to wonder why it took so long.

After all, seven of nine witnesses who testified against him when he was convicted of the 1989 murder of Savannah policeman Mark MacPhail have since changed their story. Attorneys on his behalf have filed more than a handful of appeals, and he was only spared hours short of his execution last year while the U.S. Supreme Court considered whether the methods of lethal injection used in Georgia and other states was unconstitutionally cruel.

On the face of it, having most of the condemning witnesses recant would seem to guarantee a new trial, if not outright exoneration. But no state or federal court has ordered a new trial or even a hearing on the new witness statements.

Are the judges just mean, hateful people?

Draw your own conclusion. Start by considering how the courts evaluate recantations.

The Davis case certainly isn't the first time a witness has changed the story after a trial. That's why courts follow precedent, building on the logic and experience of their predecessors.

In Georgia, a 28-year-old test exists to determine if a statement merits a new trial -- a standard in place before the murder even occurred. It tests each recantation individually, as opposed to counting their total.

One requirement is that only sworn statements be considered, unless a good reason explains why there was no notarized affidavit. Two of the seven weren't sworn, and the courts concluded Davis' attorneys didn't offer sufficient explanation.

Another requirement demands that the new statement demonstrate the innocence of the convicted person, not merely throwing doubt on earlier testimony.

"That's a standard in court after court across the country," said Ron Carlson, professor of law at the University of Georgia. "It's got to be substantive proof on the mainline aspects of the case."

In Davis' case, several of the new statements were from witnesses who said they weren't really sure what they saw. Such comments don't fit the test, though, because they don't show that either the original testimony was pure fantasy or that Davis couldn't have been guilty.

For example, if a witness now testified that Davis was in France during the murder, that would fit the test.

As Georgia Supreme Court Justice Harold Melton wrote in the majority opinion: "Trial testimony is closer in time to the crimes, when memories are more trustworthy. Furthermore, the trial process itself, including public oaths, cross-examination and the superintendence of a trial judge lends special credibility to trial testimony."

Two witnesses say they no longer stand by their testimony that Davis admitted his guilt to them while in jail awaiting trial. Melton notes that because their original statements would be admissible in a retrial, jurors would merely be faced with a question of whether or not Davis made an admission. But that wouldn't prove he didn't commit the murder, Melton said.

Then there are the witnesses who now say another person at the scene, Sylvester Coles, actually confessed to them that he was the shooter. One said he heard Coles while they were smoking pot together and another was a woman drinking poolside with Coles.

The woman, Shirley Riley, added: "Maybe Sylvester was just trying to impress me. I don't know for sure who actually shot the officer."

Despite being a little fuzzy, those statements are hearsay which would not be admissible during a retrial, Melton said.

Besides, Georgia courts are especially cautious about someone claiming to have committed a crime as a way to frustrate justice. A felon already serving a life sentence would have little hesitation to admit to another crime. Or a person might make an admission and then flee prosecution after the original defendant had been released.

However, the U.S. Supreme Court gives a little more latitude to confessions given to third parties and does consider them admissible at trial, according to Carlson. Their pending review could result in a new trial for that reason, he said.

"What the Supreme Court comes out with either way would not surprise me," he said. "But I wouldn't be surprised if the Supreme Court ordered a new hearing."

The State Board of Pardons and Paroles isn't bound by any precedent, cumbersome rules of evidence like courts use or even the necessity of having a reason at all.

Normally, it denies clemency with no explanation. In this case, because of the public interest, it issued a statement noting that for more than a year it had heard every witness Davis' attorneys brought, read the trial transcript and even had some evidence retested before ultimately concluding Davis was guilty.

Davis' most sympathetic official audience so far has been three justices on the Georgia Supreme Court who were prepared to order a new trial if they had been in the majority. Chief Justice Leah Sears wrote their dissenting opinion.

"I believe that this case illustrates that this court's approach in extraordinary motions for new trials is overly rigid and fails to allow an adequate inquiry into the fundamental question, which is whether or not an innocent person might have been convicted or even, as in this case, might be put to death," Sears wrote.

While she may have been in the minority on the bench, the voices of Davis' supporters across the country prove she is not alone. But most of those experienced jurists and law-enforcement veterans serving on the Parole Board say she's wrong.

(Walter Jones is the bureau chief for the Morris News Service in Atlanta.)

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