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ISR Issue 61, September–October 2008


REPORTS&ANALYSIS

Anatomy of a frameup

The case of Troy Davis

By MARLENE MARTIN

AUGUST 18, 2008, marked a horrible milestone for Troy Davis. Nineteen years before, Savannah, Georgia, police officer Mark Allen McPhail was shot and killed—a crime for which Troy would be accused, convicted and sent to death row.

McPhail was shot and killed in the early morning hours in a Burger King parking lot. In short order, twenty-five fellow officers were assigned to the case and began to scour the neighborhood for the perpetrator. The media sensationalized the case of a 27-year-old white father of two shot in the line of duty. One officer told a reporter, “There is a desire among the police to have the suspect locked away before McPhail is buried.”

A few days later, police had their man in custody—20-year-old Troy Davis. Two years later, Troy, who is African American, was convicted and sentenced to death in a trial that lasted ten days.

The case against Troy is more than flimsy—it appears to be totally fabricated.

The key to his conviction was testimony from nine witnesses, seven of whom have now come forward to recant. Among the two who haven’t taken back their testimony is Sylvester Coles, initially a suspect himself until he went to the police saying that Troy Davis was the killer. The other witness remembers only the color of the shooter’s clothes, and that he was left-handed. Troy is right-handed.

Several witnesses told police that Coles had a .38-caliber gun in his possession the night of the shooting. But once the police had arrested Troy, it was too hard for them to turn back when they learned this information. As attorney Jason Ewart told The South magazine,

At some point, there was an “Oh No” moment, when the police discovered that the person who may have fingered Davis had a caliber gun that had killed Officer McPhail the night of the shooting, [something] that was withheld from them [by Coles]. At that point, it was too late: Davis was the suspect. To go back and investigate someone else would have been politically tough to do…. [T]here was no investigating any other suspect. There was no [police] questioning; there was no searching for the murder weapon: there was no searching anyone else’s house. His picture was the only one they showed in a photographic lineup.
Troy admits he was at the scene the night that McPhail was killed. But he says that he stepped in to help a homeless man who was being pistol-whipped by Coles. The girlfriend of the homeless man ran to get the police. When McPhail got to the scene, he was shot twice and died shortly thereafter.

No physical evidence, like his fingerprints on the murder weapon or gunpowder residue on his hands, ever connected Troy to the crime, and he never confessed. The only thing that convicted Troy was the testimony of witnesses, many of whom say police pressured them to identify Troy as the murderer.

One of the witnesses, Monty Holmes, stated in his affidavit, “In August of 1989, the police came to talk to me about the officer who was killed…. I told them I didn’t know anything about who shot the officer, but they kept questioning me. I was real young at that time, and here they were questioning me about the murder of a police officer, like I was in trouble or something. I was scared…. It seemed like they wouldn’t stop questioning me until I told them what they wanted to hear. So I did.”

Another witness, Jeffrey Sapp, stated, “The police came and talked to me and put a lot of pressure on me to say, ‘Troy said this’ or ‘Troy said that.’ I got tired of them harassing me, and they made it clear that the only way they would leave me alone is if I told them what they wanted to hear. I told them that Troy told me he did it, but it wasn’t true. Troy never said that or anything like it.”

Dorothy Ferrell explained in her affidavit that she was taken to the police station for questioning shortly after the crime:

I was real tired because it was the middle of the night, and I was pregnant, too…I was scared that if I didn’t do what the police wanted me to do, then they would try to lock me up again. I was on parole at the time, and I had just gotten home from being locked up earlier that year.

When the police were talking to me, it was like they wanted me to say I saw the shooting and to sign a statement. I wanted to be able to leave, and so I just said what they wanted me to say…I had four children at that time, and I was taking care of them myself. I couldn’t go back to jail. I didn’t have any choice but to get up there and testify to what I said in my earlier statements. So that’s what I did.

As persuasive as these recantations might seem to be, they didn’t faze a lawyer from the Georgia attorney general’s office, who said, “You may find it compelling testimony. I don’t. I think it was rank hearsay.”
Shamefully, the courts—at both the state and federal levels—have agreed.

In March 2008, in a 4-3 decision, the Georgia Supreme Court, ruling that recanted testimony is not as compelling as trial testimony, rejected Troy’s appeal. Chief Justice Leah Ward Sears wrote a strong dissenting opinion. In it, Sears stated that the court had set a bar so high that no one could meet it, and that it was morally wrong not to allow a hearing to review new evidence that could lead to a new trial.

As Martina Correa, Troy Davis’s sister and his ardent spokesperson, said of the affidavits:

Why would these people come forward and say this if it wasn’t true? In Georgia, in a death penalty case, if you’ve perjured yourself, there is no statue of limitation—you can face life in prison. So the people who have come forward and recanted could be prosecuted for perjury and face life in prison. They have a lot to lose by coming forward to help Troy. And their lawyers tell them that before they say anything, so they’re aware of that. For the court to say that their testimony isn’t as strong, when they’re older, they have families and they have a better understanding of what they did then, is really, really disheartening.
The rigidity of the courts in looking at new evidence in Troy’s case is truly appalling. Unfortunately, this indifference is far from new.In 1993, the U.S. Supreme Court denied an appeal from Texas death row prisoner Leonel Herrera to present newly discovered evidence that could have proven his innocence because, as the court put it, to entertain “such claims” would have a “very disruptive effect…on the need for finality in capital cases and the enormous burden that having to retry cases based on often stale evidence would place on the states.”

Things got much worse under President Bill Clinton, who signed into law the Anti-Terrorism and Effective Death Penalty Act of 1996. This law further restricted the ability of death row prisoners to challenge their convictions. Clinton touted the new law saying,

I have long sought to streamline federal appeals for convicted criminals sentenced to the death penalty. For too long, and in too many cases, endless death row appeals have stood in the way of justice being served. From now on, criminals sentenced to death row for their vicious crimes will no longer be able to use endless appeals to delay their sentences.
One year earlier, Congress had voted to eliminate federal funding to organizations that had been operating to help indigent death row prisoners. This further hampered a prisoner’s ability to get a hearing from the courts. Budgets for these resource centers were slashed. Eventually, most were forced to close their doors. As Troy’s lawyer says, “I desperately tried to represent Mr. Davis during this period, but the lack of adequate resources and the numerous intervening crises made that impossible.” From 1991 to 1996, Troy didn’t even have a lawyer.

This explains why Troy—despite the compelling evidence of his innocence—has been denied on appeal at both the state and federal level. In dismay over one such denial, U.S. Court of Appeals Judge Rosemary Barkett asked, “If these people say, ‘I was coerced by the police,’ how could [Federal District Court Judge John F. Nangle] reject that without a hearing?”

Rejection is exactly what Troy has faced from the courts at every turn. And now his time with those courts is coming to an end. In July, Troy’s lawyers filed their last available legal challenge before the U.S. Supreme Court. But the Supreme Court chooses very few cases to hear and can deny an appeal without giving any reason.

In that case, Troy’s last hope for justice would rest with the Georgia State Board of Pardons and Paroles. The board can uphold the death sentence, pardon Troy or commute his sentence to life with the possibility of parole or life without parole. Martina is doubtful the board will pardon Troy given that it is made up of several former police officers and prosecutors.

Activists are collecting petitions in support of Troy and trying to spread the message about his case through public meetings and demonstrations. Amnesty International has called for an October 4 march for Troy in Atlanta under the slogan “Innocence Matters.” The ACLU has been holding weekly “Tuesday for Troy” rallies in Atlanta.

At the same time, Martina is fighting her own death sentence. She was diagnosed with breast cancer and told in 2001 that she had only six months to live. Despite this, Martina has made it her mission to see her brother free:

Troy has always been like a mama’s boy growing up—he was very close to my mother. He took care of my sister when she was sick with MS and paralyzed from the neck down. He left going to regular high school in the 11th grade so he could take care of my sister during the day. He catheterized her, he did her hair, he bathed her, he took her back and forth to her physical therapy, and when my mom got off from work, then he went to school and went to work. He graduated from high school with honors. He played ball with the police athletic league. He was one of the junior coaches. He was always the one that lined the kids up in the neighborhood and bought them ice cream. If somebody stole somebody’s bike, he’d be trying to help them find their bicycle. If somebody was fighting over money, he’d say, “Here, I’ll give you the ten dollars.” That’s the type of person Troy was. Everybody liked Troy.
Martina describes the toll her cancer diagnosis and Troy’s death sentence has had on their family:
When you’re on death row, your family members are there, too. Here I am, lying in a hospital bed with cancer, and the doctors are talking to me in the past tense. And I’m looking at my mother, and I see her with her head in her hands. My sister being paralyzed from the waist down when she was younger, my father died from a diabetic coma because he was so depressed about my brother being put on death row, my son born premature and in intensive care for one month, her son on death row, and now her daughter is being diagnosed with terminal cancer, I’m like — how much more can my mom take?
Martina explains that her purpose in life is not just to free Troy, but also to “shed light on the death penalty in Georgia” and to be part of fighting against other social injustices in the school system and health system. “I think that’s just my calling.”


Much of the information in this article came from a comprehensive report titled “‘Where is the justice for me?’ The case of Troy Davis, facing execution in Georgia” published by Amnesty International.

For more information and to sign a petition for Troy, visit: www.troyanthonydavis.org.

To get involved in the fight to end the death penalty and to help prisoners like Troy, contact the Campaign to End the Death penalty at www.nodeathpenalty.org.

Marlene Martin is the national director of the Campaign to End the Death Penalty. She can be reached at marlene@nodeathpenalty.org.

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