· Four witnesses admitted in court that they lied at trial when they implicated Troy Davis and that they did not know who shot Officer Mark MacPhail.

· Four witnesses implicated another man as the one who killed the officer – including a man who says he saw the shooting and could clearly identify the alternative suspect, who is a family member.

· Three original state witnesses described police coercion during questioning, including one man who was 16 years old at the time of the murder and was questioned by several police officers without his parents or other adults present.

After listening to this testimony, Judge Moore had this to say: “Ultimately, while Mr. Davis’ new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors,” Moore ruled. “The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value.”

Smoke and mirrors?  Really?

Judge Moore, like the rest of the legal establishment, is unimpressed by recanting witnesses.  Either they were lying when they originally testified, the reasoning goes, or they are lying now.  Either way, they can’t be taken seriously.

This reasoning loses much of its force when we ask why witnesses lie and why they recant.  Seven of the nine critical witnesses who testified at the 1991 trial have recanted their testimony.  Perhaps they were telling the truth back in the day and are lying now because . . . they are moved by sympathy for Mr. Davis and his grieving family.  Or perhaps they have been intimidated by defense counsel.

Conversely, the witnesses might have perjured themselves in 1991 and are now telling the truth.  Several of the witnesses say they were intimidated by over-zealous investigators eager to nail an alleged cop-killer.  Has the Honorable Mr. Moore seriously entertained this possibility? 

Who possesses the power to intimidate, the state of Georgia or the attorneys representing Mr. Davis?  Simply pose the question and you have your answer.  Detectives interrogating low-status witnesses can invoke a wide range of horrendous potential outcomes for those who refuse to corroborate their theory of the case.  Their actual powers of retaliation may be limited, but they have been given free rein to lie. 

Defense attorneys, alternatively, aren’t much good at the intimidation game.  All they have to offer is release from an uneasy conscience. 

Judge Moore criticizes defense counsel for not calling Sylvester “Redd” Coles to the stand in the course of the June 24th hearing.  According to the Atlanta Journal-Constitution, “After the killing . . . Coles went to the police with his lawyer and told them he and Davis were at the scene. At trial, he testified he was fleeing the scene when shots were fired, leaving Davis as the culprit.”

But why would defense counsel let Mr. Coles point the finger at their client? 

As Larry Cox of Amnesty International points out, the Supreme Court was asking Troy Davis to prove his innocence, and that is an almost impossible standard to meet.  In the real world, there are only two ways for a convicted person to demonstrate innocence beyond a reasonable doubt: slam dunk DNA evidence or a detailed and credible confession from the real perpetrator.  Few murder cases yield meaningful DNA (or any other kind of physical evidence).  You will occasionally get a credible confession in a rape case if the statute of limitations has run, but that the statute never expires in a murder case.  If Redd Coles were to confess to killing officer Mark MacPhail he would be signing his own death warrant.

The Troy Davis case is a Rorschach Test.  As Larry Cox of AI has noted, “Nobody walking out of that hearing could view this as an open-and-shut case.”  If a new trial were held in this case, the state could still put up a few eyewitnesses, but the majority of the folks they used in 1991 are telling a different story now.  What do we make of this evidentiary mish-mash.

Obviously, different people draw different conclusions.  Judge Moore looks at the Rorschach image and sees guilt.  Larry Cox examines the same collection of lines and squiggles and sees reasonable doubt.  Family members like Troy’s sister, Martina Correia, see innocence.

An appeal is inevitable, which means this tangled mess will soon be back before the Supreme Court of the United States.  What will they do with it?

Normally, they would accept Judge Moore’s findings and give the State of Georgia a green light to execute Troy Davis.

I don’t think that can happen in this case.  Thousands of people from around the world have signed clemency petition signatures and letters. High-profile dignitaries like Pope Benedict XVI, Archbishop Desmond Tutu and former U.S. President Jimmy Carter and a long list of lawmakers have joined the call for clemency.  You can’t insert the needle in defiance of a constituency this impressive.

As Reinhold Niebuhr noted on the eve of the 1954 Brown v. Board ruling, “The law is not omnipotent.”  Niebuhr embraced the sentiment behind the Brown decision but doubted it would effect immediate change.  “The very fact that the Emancipation Proclamation did not abolish slavery absolutely, and that the Federal grant of suffrage to all Negroes has been circumvented in the Southern states for two generations proves that there are limits to the power of law . . . Liberal opinion has again and again failed to observe that the potency of law has its limits.  We learned a lesson in the Prohibition movement that we seem already to have forgotten.  That lesson was that a determined minority, if it is locally a majority, whether in a city or a state, is able to defy, evade, or nullify a law passed by a majority.”

Mr. Cox and Mr. Moore are operating out of two very different paradigms and representing two different constituencies.  Judge Moore easily assumes that the law is just and nothing short of absolute proof will convince him that the jury in the Davis case got it wrong nineteen years ago.  This is the view of the legal establishment and would probably be endorsed by at least five of the nine supreme court justices.

Mr. Cox represents a constituency that has lost faith in the criminal justice system.  Friends of Justice is part of this community.  We don’t all agree that Mr. Davis is innocent, but we have grave doubts about his guilt. 

When Judge Moore says a reasonable juror would still find Troy Davis guilty he is really giving his personal opinion of the case.  In essence, he is saying “If Davis got a new trial and I was on the jury, I would find him guilty.

And he would!

But would Larry Cox see it the same way if he was seated next to judge Moore on Troy Davis’ jury?

He would not!

The legal community wants Mr. Davis to die; the civil rights community is demanding a commutation. 

Judge Moore and Larry Cox agree on one point: the state shouldn’t execute an innocent defendant just because he received a fair trial.  That’s no small thing; Moore’s opinion in the matter establishes legal precedent.  Prior to this ruling, the issue had never been addressed head on.

Can the State of Georgia execute Troy Davis over the protests of a committed, unified and vocal minority?

I don’t think they can.  The outcome of this legal drama depends on how committed, unified and vocal the civil rights community proves to be.