Saturday, May 30, 2009

Update on Troy Anthony Davis (part 2)

Regular readers may remember my updates on Georgia death row inmate Troy Anthony Davis from last year. Davis was found guilty of killing Savannah police officer Mark MacPhail in 1989, but since that time seven of the nine eyewitnesses who fingered Davis as the killer have recanted their testimony (the other two were considered suspects in the case). No murder weapon or other evidence was ever presented to convict Davis of the crime.

In the intervening years, everyone from sitting congressmen and former presidents to Hollywood celebrities and the Pope himself have lobbied the state of Georgia to pardon Davis and stop his execution. We can now add two more sitting U.S. congressmen to the list.

JACKSON, Ga. — After meeting for nearly two hours with death row inmate Troy Davis on Friday, two Georgia congressmen and the president of the NAACP said they are convinced of his innocence and committed to saving his life.

Congressmen John Lewis and Hank Johnson said they plan to return to Washington to pursue other legal means to resolving Davis’ case, which is currently back in the U.S. Supreme Court on appeal. NAACP President Ben Jealous said the case is now a national priority for the organization.

Lewis said he has considered asking for a presidential pardon for Davis, but has not yet spoken to President Barack Obama about intervening in the case. When he returns to Washington next week, Lewis said he plans to talk to the chairmen of the House and Senate Judiciary Committees to discuss possible legislation related to Davis’ case.
I would bet against the president getting involved directly in this case, but federal legislation designed to strip Georgia of its ability to carry out a death sentence would be extraordinary.

Still, Savannah prosecutors aren't backing down, and neither is state Attorney General Thurbert Baker's office.
Prosecutors, meanwhile, consider the case closed and cast doubt on the new evidence. Former Savannah District Attorney Spencer Lawton has said the new testimony is “very difficult to believe” because it could have been manipulated.
MacPhail, who was working off-duty as a security guard at a bus station, rushed to help a homeless man who had been pistol-whipped at a nearby parking lot. The 27-year-old was shot twice when he approached Davis and two other men. Witnesses identified Davis as the shooter in the 1991 trial. He was convicted of murder and sentenced to death.
As it stands now, Davis lost another round of appeals in the 11th circuit back in April, but his case is moving back to SCOTUS for the third time. I wouldn't expect much to happen in the high court, given its hesitancy to stop executions, even in cases of "actual innocence."

Davis has a website and Myspace page, as well as a Wikipedia page and several other anti-death penalty organizations backing him. As I've opined previously, the state of Georgia has never found itself under this kind of scrutiny before over a death row inmate, nor has there been a case where the evidence is as flimsy and questionable as this.

Frankly, the prosecution could clear up the questions of actual guilt by providing concrete evidence to justify Davis' execution. More than 130 juries and judges have sentenced defendants to death over the past 25 years, only to have the inmate completely exonerated of the crime. The prosecution needs to do better than "because we said so" before taking a man's life.

UPDATE: Bob Barr, the former Republican congressman (2008 Libertarian presidential candidate) and co-author of the 1996 Anti-Terrorism and Effective Death Penalty Act, has a stinging op-ed in today's NYT regarding the Davis case:
THERE is no abuse of government power more egregious than executing an innocent man. But that is exactly what may happen if the United States Supreme Court fails to intervene on behalf of Troy Davis.

After the United States Court of Appeals for the 11th Circuit barred Mr. Davis from raising his claims of innocence, his attorneys last month petitioned the Supreme Court for an original writ of habeas corpus. This would be an extraordinary procedure — provided for by the Constitution but granted only a handful of times since 1900. However, absent this, Mr. Davis faces an extraordinary and obviously final injustice.

This threat of injustice has come about because the lower courts have misread the Anti-Terrorism and Effective Death Penalty Act of 1996, a law I helped write when I was in Congress. As a member of the House Judiciary Committee in the 1990s, I wanted to stop the unfounded and abusive delays in capital cases that tend to undermine our criminal justice system.

With the effective death penalty act, Congress limited the number of habeas corpus petitions that a defendant could file, and set a time after which those petitions could no longer be filed. But nothing in the statute should have left the courts with the impression that they were barred from hearing claims of actual innocence like Troy Davis’s.

I am a firm believer in the death penalty, but I am an equally firm believer in the rights and protections guaranteed by the Constitution. To execute Troy Davis without having a court hear the evidence of his innocence would be unconscionable and unconstitutional.


dudleysharp said...

Troy Davis: Both sides need to be told
Dudley Sharp, contact info below

Anyone interested in justice will demand a fair, thorough look at both sides of this or any case. Here is the side that the pro Troy Davis faction is, intentionally, not presenting.

(1) Davis v Georgia, Georgia Supreme Court, 3/17/08
Full ruling

" . . . the majority finds that 'most of the witnesses to the crime who have allegedly recanted have merely stated that they now do not feel able to identify the shooter.' "One of the affidavits 'might actually be read so as to confirm trial testimony that Davis was the shooter.' "

The murder occurred in 1989.


"After an exhaustive review of all available information regarding the Troy Davis case and after considering all possible reasons for granting clemency, the Board has determined that clemency is not warranted."

"The Board has now spent more than a year studying and considering this case. As a part of its proceedings, the Board gave Davis’ attorneys an opportunity to present every witness they desired to support their allegation that there is doubt as to Davis’ guilt. The Board heard each of these witnesses and questioned them closely. In addition, the Board has studied the voluminous trial transcript, the police investigation report and the initial statements of all witnesses. The Board has also had certain physical evidence retested and Davis interviewed."

(3) A detailed review of the extraordinary consideration that Davis was given for all of his claims,
by Chatham County District Attorney Spencer Lawton

Troy Davis' claims are undermined, revealing the dishonesty of the Davis advocates . Look, particularly, at pages 4-7, which show the reasoned, thoughtful and generous reviews of Davis' claims, as well a how despicable the one sided cynical pro Troy Davis effort is.

(4) Officer Mark Allen MacPhail: The family of murdered Officer MacPhail fully believes that Troy Davis murdered their loved one and that the evidence is supportive of that opinion.

Not simply an emotional and understandable plea for justice, but a detailed factual review of the case.

Dudley Sharp, Justice Matters
e-mail 713-622-5491,
Houston, Texas

Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS, VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.

A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

dudleysharp said...

If you read all the material, you know that Davis’ defense counsel , during the trial, questioned all of the eyewitnesses, very strongly, on the issue of whether they were coerced or intimidated.
All of the eyewitnesses said that there was no coercion or intimidation, of any kind.

At trial, their identifications were solid, without a hint of coercion or intimidation.

Now, years later, folks are alleging police intimidation.

Although, all prior testimony and indications was that there was no intimidation, let’s imagine, now, that there was police intimidation of eyewitnesses.

Ask: "For what possible reason would the police intimidate eyewitnesses to identify one suspect over the other?" There is no reason, at all.

Secondly, that intimidation does not carry over to the trial.

The eyewitnesses were interviewed, extensively, by the prosecutors prior to the trial and there was no mention of intimidation or coercion, there, either, just as there was a denial of intimidation or coercion by those same witnesses at trial.

One of the things the appellate judges are looking at is that Davis’ attorneys waited, for 5 years, to bring up these “recantations”.

First, that strongly indicates that Davis’ attorneys didn’t give them much credibility, themselves. That is the only reason for the delay.

Secondly, and obviously, we all have to consider that the intimidation and coercion of witnesses can, also, occur long after a trial and that saving the life of a person on death row, either guilty or innocent, provides motivation to do so.

So, here, there is motivation for the intimidation and coercion of eyewitnesses.

Most, if not all, of the appellate judges in this case, have been around a long time and certainly, they have seen both credible and non credible recantations and forgetfullness by witnesses from trials, that were many years in the past, as in the Davis case.

I think we all know that to be true.

Regarding the physical evidence. Davis was identified as the one with the gun and the two shootings and the bullets were tied to the same gun, and the two shootings were tied to Davis.The gun wasn’t recovered.

Davis was postively identified and convicted in his first shooting of that night, which he intended to be a murder, fortunatley that vicitm, shot in the head, as well, survivied.

dudleysharp said...

The 133 death row "innocents" scam
Dudley Sharp, contact info below

It is very important to take note that the 133 "exonerated" from death row is a blatant scam, easily uncovered by fact checking.

Richard Dieter, head of the Death Penalty Information Center (DPIC) and DPIC have produced the claims regarding the exonerated and innocents released from death row list.

The scam is that DPIC just decided to redefine what exonerated and innocence mean according to their own perverse definitions.

How Dieter and DPIC define what "exonerated" or "innocent" means.

". . . (DPIC) makes no distinction between legal and factual innocence. " 'They're innocent in the eyes of the law,' Dieter says. 'That's the only objective standard we have.' "

That is untrue, of course. We are all aware of the differences between legal guilt and actual guilt and legal innocence (not guilty) and actual innocence, just as the courts are.

The only issue in the death penalty innocence debate is how many actual innocents are sent to death row and what is the probability of executing an actual innocent. Legal innocence is not the issue, for the simple fact that we cannot execute a legally innocent person. So the concern is over the actual innocent, those who had no connection to the murder(s).

Furthermore, there is no finding of actual innocence, but it is "not guilty". Dieter knows that we are all speaking of actual innocence, those cases that have no connection to the murder(s). He takes advantage of that by redefining exonerated and innocence.

Dieter "clarifies" the three ways that former death row inmates get onto their "exonerated" by "innocence" list.

"A defendant whose conviction is overturned by a judge must be further exonerated in one of three ways: he must be acquitted at a new trial, or the prosecutor must drop the charges against him, or a governor must grant an absolute pardon."

None establishes actual innocence.

DPIC has " . . . included supposedly innocent defendants who were still culpable as accomplices to the actual triggerman."

DPIC: "There may be guilty persons among the innocents, but that includes all of us."

Good grief. DPIC wishes to apply collective guilt of capital murder to all of us.

Dieter states: "I don't think anybody can know about a person's absolute innocence." (Green). Dieter said he could not pinpoint how many are "actually innocent" -- only the defendants themselves truly know that, he said." (Erickson)

Or Dieter won't assert actual innocence in 1, 133 or 350 cases. He doesn't want to clarify a real number with proof of actual innocence, that would blow his entire deception.

Or, Dieter declare all innocent: "If you are not proven guilty in a court of law, you're innocent." (Green)

Dieter would call Hitler and Stalin innocent. Those are his "standards".

And that is the credibility of the DPIC.

dudleysharp said...

The 133 "innocent" scam

For fact checking.

1. "Case Histories: A Review of 24 Individuals Released from Death Row", Florida Commission on Capital Cases, 6/20/02, Revised 9/10/02 at

83% error rate in "innocent" claims.

2. "Is 'the innocence list' an appropriate name?", 1/19/03

Dieter admits they don't discern between legal innocence and actual innocence. One of Dieter's funnier quotes;"The prosecutor, perhaps, or Dudley Sharp, perhaps, thinks they're still guilty because there was evidence of their guilt, but that's a subjective judgment." Yep, "EVIDENCE OF GUILT", can't you see why Dieter would think they were innocent? And that's how the DPIC works.

3. The Death of Innocents: A Reasonable Doubt,
New York Times Book Review, p 29, 1/23/05, Adam Liptak,
national legal correspondent for The NY Times

"To be sure, 30 or 40 categorically innocent people have been released from death row . . . ".

That is out of the DPIC claimed 119 "exonerated", at that time, for a 75% error rate.

NOTE: It's hard to understand how an absolute can have a differential of 33%. I suggest the "to be sure" is, now, closer to 25.


5. "The Death Penalty Debate in Illinois", JJKinsella,6/2000,


Origins of "innocence" fraud, and review of many innocence issues

7. "Bad List", Ramesh Ponnuru, National Review, 9/16/02

How bad is DPIC?

8. "Not so Innocent", By Ramesh Ponnuru,National Review, 10/1/02

DPIC from bad to worse.

Dudley Sharp

dudleysharp said...

The Death Penalty: More Protection for Innocents

Of all the government programs in the world, that put innocents at risk, is there one with a safer record and with greater protections than the US death penalty?


Enhanced Due Process - No knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law. Therefore, actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed. That is. logically, conclusive.

Enhanced Incapacitation - To state the blatantly clear, living murderers, in prison, after release or escape, are much more likely to harm and murder, again, than are executed murderers. Although an obvious truism, it is surprising how often folks overlook the enhanced incapacitation benefits of the death penalty over incarceration.

Enhanced Deterrence - 16 recent studies, inclusive of their defenses, find for death penalty deterrence. A surprise? No. Life is preferred over death. Death is feared more than life. Some believe that all studies with contrary findings negate those 16 studies. They don't. Studies which don't find for deterrence don't say no one is deterred, but that they couldn't measure those deterred.

What prospect of a negative outcome doesn't deter some? There isn't one.

Enhanced Fear - Some death penalty opponents argue against death penalty deterrence, stating that it's a harsher penalty to be locked up without any possibility of getting out. Reality paints a very different picture. What percentage of capital murderers seek a plea bargain to a death sentence? Zero or close to it. They prefer long term imprisonment. What percentage of convicted capital murderers argue for execution in the penalty phase of their capital trial? Zero or close to it. They prefer long term imprisonment. What percentage of death row inmates waive their appeals and speed up the execution process? Nearly zero. They prefer long term imprisonment.

This is not, even remotely, in dispute.

What of that more rational group, the potential murderers who choose not to murder, is it likely that they, like most of us, fear death more than life?

Life is preferred over death. Death is feared more than life.

The False Promise - Part of the anti death penalty deception is that a life sentence, with no possibility of release, is a superior alternative to the death penalty. It's a lie. History tells us that lifers have many ways to get out: Pardon, commutation, escape, clerical error, change in the law, etc. There are few absolutes with sentencing. But, here are two: the legislature can lessen the sentences of current inmates, retroactively, and the executive branch can lessen any individual sentence, at any time. This has been, actively, pursued, for a number of years, in many states, because of the high cost of life sentences and/or geriatric care, found to be $60,000-$90,000 per year per inmate.

Innocents released from death row: Some reality - Furthermore, possibly we have sentenced 25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have all been released upon post conviction review. The anti death penalty claims, that the numbers are significantly higher, are a fraud, easily discoverable by fact checking. There is no proof of an innocent executed in the US, at least since 1900.

In choosing to end the death penalty, or in choosing not implement it, some have chosen to spare murderers at the cost of sacrificing more innocent lives.

Todd Krohn said...

Mr. Sharp makes some interesting claims, though the idea that the 130 + people who have been exonerated from death row is a "scam" is not supported by the facts.

Keep in mind the law adjudicates defendants guilty or not guilty. Courts make no findings of fact regarding "innocence". The semantic difference is important since Mr. Sharp's allegation against the DPIC lies in whether those exonerated were, in fact, "innocent" of the crimes they were convicted.

In most of what was posted regarding the Davis case (which seems mass-emailed) there is a lot of speculation but little factual evidence to support the execution (we're still left with questionable eyewitness testimony and nothing concrete).

As to the rest, some interesting points made in support of the death penalty, but since that's not the topic, maybe other readers will jump in and present the anti-death penalty side.

dudleysharp said...


I made the obvius distinction between legal innocence and actual innocene, as you did.

The scam is that DPIC calls them innocent and for about 13 years or so, the media has agreed, they're innocent.

If you look at media reports and anti death penalty news release, regarding these claims, they simply expand the deception.

As I explained, the innocence debate is all about the number of actual innocents sentneced to death and how that effects the probability of executing an actual innocnet.

The fact is that we can't execute a legally innocent person, because it is legally, not possible.

So the only issue is actual innocence.

As the anti death penalty folks push this deception and most of the media won't fact check it and simply parriots the anti death penalty line, it is important that clarity be made.

That is my point.

Todd Krohn said...

Dudley, Although I think calling it a "scam" is a little much, I'm certainly not going to defend DPIC's use of the term "innocence" in their literature. I've never been comfortable with their use of the phrase "probable innocence" either.

However, my point in raising exoneration is not an issue of innocence. It's a structural argument that the system (judges, prosecutors, juries), in over 130 cases, got it wrong. We make a lot mistakes in capital cases (of which the Davis case might be one), and while a life sentence is revocable, with the ultimate penalty there is no do-over.

As I teach my students, there are two sides to virtually all of these arguments, and I'm surprised, as a pro-death penalty advocate, you haven't raised one: doesn't the exoneration rate/error rate prove that the system works? That the system does free the not guilty and that we can be sure those who are executed deserve their fate?

It's true the courts have, over and over, ruled against Davis which makes the entire circus surrounding the case somewhat suspect. But the fact that there are so many persons from across the ideological spectrum (conservatives, liberals, Republicans, Democrats, etc.) who are arguing Davis is the wrong man is more than a little troubling.

dudleysharp said...


INNOCENCE is the major issue in the death penalty debate. It's a scam on multiple levels.

First, DPIC wants folks to not fact check and misinterpret the data. About 99% do, conclusive of the media. That is, specifically, why they claim the inmates are exonerated because of innocence issues.

Second, after years of me and others hammering the DPIC on this, they came out with some clarification, "Standards" which had nothing to do with actual innocence.

Thirdly, Over the past 14 years or so, I have never seen any evidence that DPIC has attempted to correct any misperceptions on this issue. In fact, they encourage the wrongful interpretation.

I correct people and media folks on this all the time. I often get the "of course they are actually innocent."

Happens all the time.

The media is, of course, largely responsible for these problems and they seem happy to be. Probably even less than half the media reports call DPIC anti death penalty.