In the Absence of Proof

The options are running out for Troy Davis, a man who has been condemned to death for killing a police officer in Georgia, but whose guilt is seriously in question.

It’s bad enough that we still execute people in the United States. It’s absolutely chilling that we’re willing to do it when we’re not even sure we’ve got the right person in our clutches.

Mr. Davis came within an hour of execution last fall. His relatives and his attorney, Jason Ewart, had come to the state prison to say goodbye. Mr. Davis had eaten his last meal, and Mr. Ewart was ready to witness his execution.

The mind-numbing tension was broken with a last-minute stay from the Supreme Court. The case then made its way to the United States Court of Appeals for the 11th Circuit, in Atlanta, which ruled 2-to-1 last month against Mr. Davis’s petition for a hearing to examine new evidence pointing to his innocence.

The countdown to the ghoulish ritual of execution resumed.

Mr. Davis was convicted of shooting a police officer to death in the parking lot of a Burger King in Savannah, Ga., in 1989. The officer, Mark Allen MacPhail, was murdered as he went to the aid of a homeless man who was being pistol-whipped.

I’m opposed to the death penalty, but I would have a very hard time finding even the faintest glimmer of sympathy for the person who murdered that officer. The problem with taking Mr. Davis’s life in response to the murder of Officer MacPhail is the steadily growing mass of evidence that Mr. Davis was not the man who committed the murder.

Nine witnesses testified against Mr. Davis at his trial in 1991, but seven of the nine have since changed their stories. One of those seven, Dorothy Ferrell, said she was on parole when she testified and was afraid that she’d be sent back to prison if she didn’t agree to cooperate with the authorities by fingering Mr. Davis.

“I told the detective that Troy Davis was the shooter,” she said in an affidavit, “even though the truth was that I didn’t know who shot the officer.”

Another witness, Darrell Collins, who was a teenager at the time of the murder, said the police had “scared” him into falsely testifying by threatening to charge him as an accessory to the crime. He said he was told that he would go to prison and might never get out if he refused to help make the case against Mr. Davis.

This week Mr. Davis’s lawyers, led by Mr. Ewart of the Arnold & Porter law firm in Washington, filed a last-ditch, long-shot petition with the Supreme Court, asking it to intervene and allow Mr. Davis’s claims of innocence to be fully examined.

An extraordinary group of 27 former judges and prosecutors joined in an amicus brief in support of the petition. Among those who signed on were William Sessions, the former director of the F.B.I.; Larry Thompson, a U.S. attorney general from 2001-2003; the former Congressman Bob Barr, who was the U.S. attorney for the Northern District of Georgia from 1986-1990; and Rudolph Gerber, who was an Arizona trial and court of appeals judge from 1979-2001.

The counsel of record for the amicus brief is the Harvard law professor Charles Ogletree. The brief asserts that the Supreme Court should intervene “because Mr. Davis can make an extraordinary showing through new, never reviewed evidence that strongly points to his innocence, and thus his execution would violate the Constitution.”

The very idea of executing someone who may in fact be innocent should also violate the nation’s conscience. Mr. Davis is incarcerated. He’s no threat to anyone. Where’s the harm in seeking out the truth and trying to see that justice is really done?

And if the truth can’t be properly sorted out, we should be unwilling to let a human life be taken on mere surmise.

There was no physical evidence against Mr. Davis, and no murder weapon was ever found. At least three witnesses who testified against him at his trial (and a number of others who were not part of the trial) have since said that a man named Sylvester “Redd” Coles admitted to killing the police officer.

Mr. Coles, who was at the scene, and who, according to witnesses, later ditched a gun of the same caliber as the murder weapon, is one of the two witnesses who have not recanted. The other is a man who initially told investigators that he could not identify the killer. Nearly two years later, at the trial, he testified that the killer was Mr. Davis.

Officer MacPhail’s murder was a horrendous crime that cries out for justice. Killing Mr. Davis, rather than remedying that tragedy, would only compound it.

Source: The New York Times, Bob Herbert, May 23, 2009