Sunday, May 24, 2009

In the Absence of Proof

In the Absence of Proof


By Bob Herbert

The New York Times

May 23, 2009


The options are running out for Troy Davis, a man who

has been condemned to death for killing a police

officer in Georgia, but whose guilt is seriously in question.


It's bad enough that we still execute people in the

United States. It's absolutely chilling that we're

willing to do it when we're not even sure we've got the

right person in our clutches.


Mr. Davis came within an hour of execution last fall.

His relatives and his attorney, Jason Ewart, had come

to the state prison to say goodbye. Mr. Davis had eaten

his last meal, and Mr. Ewart was ready to witness his execution.


The mind-numbing tension was broken with a last-minute

stay from the Supreme Court. The case then made its way

to the United States Court of Appeals for the 11th

Circuit, in Atlanta, which ruled 2-to-1 last month

against Mr. Davis's petition for a hearing to examine

new evidence pointing to his innocence.


The countdown to the ghoulish ritual of execution resumed.


Mr. Davis was convicted of shooting a police officer to

death in the parking lot of a Burger King in Savannah,

Ga., in 1989. The officer, Mark Allen MacPhail, was

murdered as he went to the aid of a homeless man who

was being pistol-whipped.


I'm opposed to the death penalty, but I would have a

very hard time finding even the faintest glimmer of

sympathy for the person who murdered that officer. The

problem with taking Mr. Davis's life in response to the

murder of Officer MacPhail is the steadily growing mass

of evidence that Mr. Davis was not the man who

committed the murder.


Nine witnesses testified against Mr. Davis at his trial

in 1991, but seven of the nine have since changed their

stories. One of those seven, Dorothy Ferrell, said she

was on parole when she testified and was afraid that

she'd be sent back to prison if she didn't agree to

cooperate with the authorities by fingering Mr. Davis.


"I told the detective that Troy Davis was the shooter,"

she said in an affidavit, "even though the truth was

that I didn't know who shot the officer."


Another witness, Darrell Collins, who was a teenager at

the time of the murder, said the police had "scared"

him into falsely testifying by threatening to charge

him as an accessory to the crime. He said he was told

that he would go to prison and might never get out if

he refused to help make the case against Mr. Davis.


This week Mr. Davis's lawyers, led by Mr. Ewart of the

Arnold & Porter law firm in Washington, filed a last-

ditch, long-shot petition with the Supreme Court,

asking it to intervene and allow Mr. Davis's claims of

innocence to be fully examined.


An extraordinary group of 27 former judges and

prosecutors joined in an amicus brief in support of the

petition. Among those who signed on were William

Sessions, the former director of the F.B.I.; Larry

Thompson, a U.S. attorney general from 2001-2003; the

former Congressman Bob Barr, who was the U.S. attorney

for the Northern District of Georgia from 1986-1990;

and Rudolph Gerber, who was an Arizona trial and court

of appeals judge from 1979-2001.


The counsel of record for the amicus brief is the

Harvard law professor Charles Ogletree. The brief

asserts that the Supreme Court should intervene

"because Mr. Davis can make an extraordinary showing

through new, never reviewed evidence that strongly

points to his innocence, and thus his execution would

violate the Constitution."


The very idea of executing someone who may in fact be

innocent should also violate the nation's conscience.

Mr. Davis is incarcerated. He's no threat to anyone.

Where's the harm in seeking out the truth and trying to

see that justice is really done?


And if the truth can't be properly sorted out, we

should be unwilling to let a human life be taken on

mere surmise.


There was no physical evidence against Mr. Davis, and

no murder weapon was ever found. At least three

witnesses who testified against him at his trial (and a

number of others who were not part of the trial) have

since said that a man named Sylvester "Redd" Coles

admitted to killing the police officer.


Mr. Coles, who was at the scene, and who, according to

witnesses, later ditched a gun of the same caliber as

the murder weapon, is one of the two witnesses who have

not recanted. The other is a man who initially told

investigators that he could not identify the killer.

Nearly two years later, at the trial, he testified that

the killer was Mr. Davis.


Officer MacPhail's murder was a horrendous crime that

cries out for justice. Killing Mr. Davis, rather than

remedying that tragedy, would only compound it.


Copyright 2009 The New York Times Company




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