USA: Less than "ironclad," less than safe

August 27, 2010

USA: Less than "ironclad," less than safe

The 1991 jury had found Troy Davis guilty “beyond a reasonable doubt,” Judge Moore noted, “but not to a mathematical certainty”. The fact that the beyond-a-reasonable-doubt standard cannot guarantee error-free verdicts is highlighted by the cases of the more than 130 people who have been released from death rows on grounds of innocence in the USA since 1976. In each case, the defendant had been found guilty beyond a reasonable doubt. Errors, then, have occurred more than “occasionally”. For every 10 executions in the USA since 1976, one death row inmate has been exonerated. How many innocent prisoners have been executed during this period is unknown.

The Troy Davis case is one in which many of the witnesses who testified against the defendant have since retracted or contradicted their trial testimony in sworn statements. Given that there was no physical evidence identifying Davis as the gunman, the state’s case at trial hinged on these witnesses. Relied upon by the prosecution as credible witnesses in 1991, however, the state today portrays their revised testimony or recantations as “untrustworthy” and “unreliable”.

Judge Moore characterized the Troy Davis case as one in which “the evidence heard at trial was incomplete in some key manner”, adding that the new evidence did “not nullify the existence of the prior evidence”. He noted that “courts look upon recantation evidence with suspicion” and a court’s “general antipathy towards affidavit testimony counts double where the affiant is submitted in lieu of live testimony to prevent cross-examination and credibility determinations”.

Some, but not all, of the witnesses who have signed post-conviction affidavits appeared at the evidentiary hearing Judge Moore held in his court on 23 and 24 June 2010. One, Harriet Murray, has died since signing her statement in 2002. Others were available but were not called by the defence. Judge Moore reserved particular criticism for the failure of the defence lawyers to subpoena Sylvester Coles, the alternative suspect in the case to whom some of the affidavits pointed. The judge suggested that the lawyers “appeared to forget that the witness stand is the crucible of credibility”, and their “reluctance to put Mr Coles to the test robbed the Court of its ability to accurately assess Mr Coles’s claim that he did not shoot Office MacPhail.” The defence has described in an affidavit how they attempted to serve a subpoena on Sylvester Coles on the morning of 24 June 2010, both at his home and his place of employment. Judge Moore dismissed their efforts as “half-hearted” and “eleventh hour”.

Judge Moore ruled that some of the witness evidence pointing to Sylvester Coles as the gunman or alleging that the witness in question had felt pressured or coerced to testify against Davis was not credible; other evidence was “too general to provide anything but smoke and mirrors”; and yet other witness evidence carried little weight, either because it amounted to hearsay or because the witness was not presented at the evidentiary hearing. One such person was Dorothy Ferrell. At the 1991 trial, she had identified Troy Davis as the gunman. In an affidavit signed nine years later, she retracted this testimony and said that she had not seen who shot Officer MacPhail and that her testimony had been coerced. Dorothy Ferrell’s affidavit was “a clear recantation”, Judge Moore said. However, the fact that Troy Davis’s lawyers had not called her to the witness stand at the evidentiary hearing “destroys nearly its entire value”. Judge Moore described the decision not to call her to the stand as “especially curious because, based upon the contents of her affidavit and her lack of any obvious connections to Mr Davis, it would appear she should have been his star witness”.