The 1991 trial of Troy Davis was a simple affair. Jurors were told that Davis killed Mark McPhail, an off-duty police officer. Davis was smirking as he pulled the trigger, jurors were told. Nine people said they witnessed the foul deed done. Davis was convicted and sentenced to die by lethal injection.
Sixteen years later, the lines have blurred considerably. Seven of the nine witnesses who testified against Davis now say they perjured themselves under pressure from law enforcement.
Justice Harold Melton of the Georgia Supreme Court is unimpressed with these recantations. “We simply cannot disregard the jury’s verdict,” Melton wrote this March when the court denied a request for a stay of execution. Jurors were convinced by the trial testimony, he explained, “and, in fact, we favor that original testimony over the new.”
In other words, most Georgia Supreme Court Justices believe the witnesses got it right in 1991 and now, perversely, have decided to change their minds.
You can do a long prison stretch for perjury. Why would terrified witnesses place themselves in legal jeopardy? The recanting witnesses, by and large, are simple, unlettered men and women who stand in awe of authority.
They are backing away from their original testimony because their false words put a man on death row and now they can’t live with themselves. No other explanation is credible. These people haven’t been intimidated by defense counsel, nor are they swayed by the fact that Amnesty International, Jimmy Carter, or Pope Benedict the 16th have expressed concern over this case.
So why is the legal system so reluctant to put the original witnesses back on the stand?
Sarah Totonchi, chairwoman of Georgians for Alternatives to the Death Penalty, has a theory. “This case gets at the heart of some real dark issues of Georgia’s criminal justice system,” she told reporters when the US Supreme Court granted a temporary stay of execution. “If they acknowledge the problems with this case, they are also admitting there are things like police misconduct and police coercion, and I think it’s easier to go along with the status quo than to admit that we have these problems and ultimately have to solve them.”
Mark McPhail was a police officer; everything hinges on this fact. One hundred and sixty officers die in the United States in an average year. Sixty thousand officers are assaulted and fifteen thousand sustain injuries. It’s a dangerous job. When a fellow officer goes down, outrage is natural.
Remember the question that lost Michael Dukakis the election in 1988, “Governor, if [your wife] were raped and murdered, would you favor an irrevocable death penalty for the killer?”
Dukakis responded with bemused detachment: “No, I don’t, and I think you know that I’ve opposed the death penalty during all of my life.”
The Massachusetts Governor should have let some emotion surface. “If somebody raped and murdered my wife,” he could have answered, “I would want to kill them with my own bare hands. Who wouldn’t? That’s why you wouldn’t want me within a mile if the judicial process. In my outrage and despair I couldn’t possibly be objective, and neither could you.”
Anneliese McPhail, the victim’s mother, isn’t trying to sound objective. She knows Davis is the murderer and she wants to see him die. “If I saw him, I’d punch him in the face,” she admits. “I am angry at the whole family. I don’t know how they have such a following.”
The police officers who investigated the murder in 1989 likely felt the same way. Which is why they latched onto the first credible suspect they came across and made sure witnesses told a simple, straight, consistent story.
In any good who-done-it, the first and obvious suspect is never the real killer. Sometimes real life works that way too. Not often, but sometimes. Frightened eye witnesses are frightfully open to suggestion. Good cops never exploit that fact.
The Troy Davis case shows how easy it is to convict an innocent person.
Friends of Justice 
Oh, God, not again. This is, again, such a sign of America’s evil face (and I really dislike using that word).
America has got to face up to it’s slave past and it’s racist present. We have got to see that laws are equitable, not just for the sake of control of white over black. We’ve got to say openly and firmly, “I am sorry for what’s been done to black people in America; for the brutish acts during slavery (which of course are legion, especially as to the right of the family to be together), for the lynchings, for the illegal work/slave camps in Georgia and other parts of the South, for vagrancy laws primarily in the South, for being last hired and first fired, for the paying you the lowest wages, for throwing you young black men in jail at the drop of a hat, for trying to stop you from voting, for interferring with your right to vote, for throwing out your votes. I am heartily sorry. What can we do now to fix this?”
Particularly dismaying is how Troy Davis came within hours of being killed without nationwide organized demonstrations, prayer meetings, vigils, massive letter writing campaigns to senators and congresspeople all over the country calling for intervention or any media challenges to state governors, the leading presidential candidates, the president and other administration officials. Here is a blatant case of reasonable doubt emerging after the reasonable doubt issue was first settled by a jury, a case where the wheels of justice are clearly out of whack regardless of whether the death penalty is a good thing or whether Troy Davis is innocent. The American public just doesn’t care much. Does this reflect contempt for black men, a hopeless attitude about the deep South, a feeling that the justice system and criminal matters are best kept out of sight and out of mind, or general complacency that enables us to tolerate all sorts of social ills in favor of just tending our own gardens?
I can’t help comparing the lack of public concern over the plight of Troy Davis with the massive surge of interest in the Jena 6. True, this is an election year and the economy is in meltdown mode, but the contrast is still striking. Al Sharpton took advantage of a photo op, but the tiny group of people rallying around Mr. Davis stands in sharp contrast to to vast throngs in Jena a year ago. Has the black blogosphere taken an interest in the Davis case? I suspect many bloggers have done their part to focus concern, but we haven’t seen the kind of synergy generated by the Jena 6. The national media has a hard time focusing on more than three or four stories at a time. With giants bestriding the land (election, economic turmoil, debates, gaffes, etc.) the Davis case didn’t stand a chance.
Alan–I agree with all of what you said, but there is another side to the argument. In every capital case, a good defense lawyer can get some of the witnesses to change their testimony after the passage of time, because more and more, as the threat of death of the accused looms, some witnesses begin to have qualms of conscience, and/or to worry about the magnitude of the moral burden resting on their testimony, and it is fairly easy to recant–all they have to do is sign a statement saying their testimony was untrue, knowing they may or may not have to go to court. Prosecutors would argue that fity percent or more of convictions based on eye-witness or accomplice testimony would be in jeopardy, simply because a witness changed his mind down the line. HOWEVER,….having said all of that, if the witnesses now testify to being threatened and/or coerced to lie, and there is proof of this, the conviction should be revisited, particularly in a capital case. Keep up the good work–you’re like a voice crying in the wilderness. JCB.
You make some good points, Jim. It is understandable that the legal system is disinclined to credit witnesses (and sometimes jurors) who recant their testimony or say they wouldn’t vote to convict if they had it to do over again. There must be an element of finality to the system; we can’t let people out of prison every time a witness recants, then lock them back up when the witness wavers yet again. But the magnitude of the recantations in the Davis case suggests that witnesses weren’t that sure of their testimony in the first place. Witnesses have a vested interest in believing they got it right at trial, and the finality of a death sentence simply reinforces the will to believe. If a witness recants years later, we have to wonder how convinced they were in the first place. And if they testified while harboring severe doubts it is likely because an officer of the court (usually a police officer or a prosecutor) tried to encourage a false sense of certainty–a false concreteness.
My suggestion is that a case involving a murdered police officer is particularly inclined to produce this kind of coercion. For reasons stated in my post, investigators want to find the killer, and they want to see him punished. And this is true even if the investigator isn’t personally acquainted with the slain officer. There is a natural, and extremely intense, identification with the murder victim.
Prosecutors are also under pressure to get a conviction when an officer has been killed. These cases get a lot of public attention and the public often regards police officers as a species of domestic soldier. These guys are on the front lines. They stand between me and a world of chaos. When a cop is gunned down I want to see somebody pay and will be intensely upset if the case goes cold.
So the prosecutor tends to accept testimony gleaned from police interrogations without asking too many questions. For bureaucratic and emotional reasons, everybody is desperate to clear the case and move on.
The same dynamic plays out in any case considered particularly heinous, but I think cases involving the murder of an officer are particularly inclined to yield wrongful convictions when the fact issues are fuzzy.
I’ve read a book called “A people’s history” which sheds a lot of light on the origin of racism in this country, but even before that, I’ve seen evidence that the legal system is in need of correction. Seeing that Troy is still convicted after seven out of nine witnesses recanted, it is much easier to say that you have it right the first time than to continue an investigation from 17 years ago and admit that their was a wrong conviction. It would be different if 1 or 2 recants but 7 at the risk of perjury? But given the history of the treament of blacks by the state of Georgia, I don’t expect him to be exonerated. It is just sad that they would rather let the real killer be free to enjoy life or commit another crime while they murder Mr. Davis and if by chance after the execution they find evidence leading to the real killer, I doubt if you will hear anything about it in the media because this type of thing has happened before. I don’t think that Sharpton is not concerned, it may be that he doesn’t have enough facts or information is being withheld from him to build a strong case. It seems to me that while staying the execution, a re-investigation should be done to find the real killer at least the officer and his family deserve that.