Thursday, September 29, 2011

On the Release of The West Memphis Three

It is no secret, by any means, that I am working with Byron Case to free him from his wrongful imprisonment. Byron too writes of wrongful conviction, and he has an unfortunately keen perspective. Some his writing makes its circuitous way to his blog The Pariah's Syntax, obviously maintained by a third party. In this post, I share with you one of his posts. All that follows is from the neurons and fingertips of Byron Case.

[The Skeptical Spouse encourages me to point out I have permission from Byron to use his writing in this fashion.]

On the Release of The West Memphis Three

"Are you sure? I insisted. My neighbor Zach had just rushed to my cell door to relay what he'd seen on CNN. The West Memphis Three, jailed for eighteen years on dubious murder convictions, took an Alford plea and were being released. I abandoned the essay I was writing and hurriedly turned on my TV. Sure enough, there they were — Damien, Jessie and Jason, dressed like human beings for the first time this century — giving a press conference.

"The one on the left looks a little like you," Zach said. I shushed him, not wanting to miss an instant. Though the networks would replay the clip for days, it never stopped appearing to me as surreal as a fever dream.

Zach had seen photos of me taken before prison. He knew about the media's fixation on my black clothes and eyeliner. He knew, also, that my friends and I used to talk about the West Memphis Three in the reverent tones typically used by the devout when speaking of martyrs. Onetime misfits in a small-minded trailer culture, the trio's persecution was as mythic as it was terrifying. If we teens who lived in an urban, allegedly enlightened environment (in the Midwest, I grant you) were yelled at and threatened on the street for dressing unusually, there was no doubt in our minds that black-clad youth in the American South had it many times worse. Of course we believed Damien, Jason, and Jessie were innocent. Arrest, trial, and conviction were simply legal extensions of the sort of bigotry my darkly dressed friends and I encountered all the time. It would have been difficult not to feel solidarity with those three strangers down in Arkansas, but I didn't hold much hope in their chances for release. Even as a naïve teenager, my faith in the United States judicial system, and in people, was virtually nonexistent.

Then my two best friends died. Anastasia was murdered; Justin, her boyfriend, killed himself. Authorities suspected it was a murder-suicide. I knew the homicide investigation was going south when, in an interview, the lead investigator launched into the first of many inquiries into the couple's musical tastes, religious beliefs, and choice in clothing. One mutual friend suggested early on, "This case is going to turn into a witch hunt before it's closed."

And in a way, it did. I hardly blame my wrongful murder conviction on the smear campaign after my scorned ex took her expertly crafted lies to the authorities, years later. The jury was kept from hearing much of the absurdity prosecutors wanted to introduce, but there was no shortage of effort on that front. Everything from my bumper stickers to my offbeat sense of humor was dragged out, pretrial. I even suggested during a recess that I detected disturbing echoes of the case of the West Memphis Three. My court-appointed attorney blinked at me from behind his thick glassed and asked, "Who?" He later obliged my worry after a great deal of cringe-worthy debate over the use at trial of the term goth, and I was at least granted a trial free of overt post-West Memphis Three, post-Columbine bias.

There I sat, innocent yet imprisoned, watching footage of those I once pitied for unjustly living the slow death of the incarcerated. Cellphone snapshots of Damien and Jason's luxurious first night of freedom — Kobe burgers and a five-star hotel rooftop celebration — and of Jessie's family reunion swelled my heart as they stabbed it.

"Man," Zach said as we watched, "can you imagine?"

A happy photograph of Damien holding his wife, whom he married years ago, in prison, flashed across the screen. Before that day, they had never before touched. I just stared. What an experience that all must be, scary and awesome and bigger than anything most people will probably ever know.

I finally mustered a reply: "Actually, I imagine it every single day."

Cast Your Vote in the Case of Georgia v. Troy Anthony Davis

Assuming you have read the posts and comments herein, or have otherwise educated yourself about the case, how would you as a juror cast your vote in the case of Troy Anthony Davis?

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Wednesday, September 28, 2011

Burden of Proof as a Legal Fiction: One Year Later

Originally posted on 21 November 2010.

In this post, I intend to prove to you beyond a reasonable doubt that the concept of "proof beyond a reasonable doubt" is nothing more than a legal fiction. This shouldn't take too long.

I begin by asking you to consider the burden of proof in a civil case. That burden is usually described as the "preponderance of the evidence."  It's a 50-50 type decision. If the evidence favors the plaintiff even by a  teensy weensy bit, the jury is to find in favor of the plaintiff. If, on the other hand, the evidence favors the defense even by a smidgeon, then the jury is to find in favor of the defense. It's so simple.

I present the idealized concept of preponderance of the evidence in the figure below. Click to enlarge.
Matters are a little more confusing for jurors in a criminal case. They are asked to decide if the evidence proves the State's case beyond a reasonable doubt. The jurors must figure out how heavily the evidence favors the prosecution AND they must figure out what the hell the term reasonable doubt means AND they must decide whether the weight of the evidence provided by the prosecution exceeds the reasonable doubt threshold.

Courts are of almost no help in determining the meaning of reasonable doubt. One thing they absolutely will not do is apply any numeric value to reasonable doubt. They never suggest anything such as "you must be 90% certain."

Never. Ever.

Not now. Not ever.

Instead, they give you a reasonable doubt instruction something along the line of:
The question naturally is what is a reasonable doubt. The words almost define themselves. It is a doubt based upon reason and common sense. It is a doubt that a reasonable person has after carefully weighing all of the evidence. It is a doubt which would cause a reasonable person to hesitate to act in a matter of importance in his or her personal life. Proof beyond a reasonable doubt must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs.
There you go. I'm sure that clarified things.

Legal scholars, and I've been reading a lot of their scholarly work on this issue recently, recognized that if you are to quantify the number, it should be greater than 50%. That after all is the standard for civil cases, and the burden of proof in criminal cases is supposed to be substantially greater. Legal scholars tend to throw out a value of 90% as a starting point. This corresponds roughly to William Blackstone's 250 year old claim that it is "better that ten guilty persons escape than that one innocent suffer."

That traditional view is portrayed in the figure below.
Those legal scholars who believe that figure portrays reality are full of scholarly beans.

When Rita Simon and Linda Mahon asked 106 judges to put a non-legally-binding number to proof beyond a reasonable doubt, those judges gave a number (presumably on average) of 89%. Since that's almost identical to the number the full-of-beans legal scholars provided, I declare that judges too are full of judicial beans, at least with respect to this concept.

Simon and Mahon also asked 25 jurors to put a number to the concept. Those jurors put the number at 79%. That number is not far from a couple other studies I've seen where jurors put the number around 75%, assuming they are asked before they deliberate in a mock trial. If they are asked after they deliberate, the put the number closer to 55%. The suggestion is that they wanted to convict, the evidence didn't support conviction at even a 75% standard, so they reduced the standard.

Even though the students eventually put the standard just barely above a civil suit "preponderance of the evidence" standard, I declare my fellow jurors to be full of deliberative beans, at least with respect to this issue.

I'll allow the judges and jurors to make my point for me. During the NCSC judge-jury agreement study used by Bruce Spencer to establish a wrongful conviction rate around 10%, the judges and jurors were asked to provide their estimate of the strength of the evidence used to convict (or acquit) a defendant. I'll simply provide a summary plot of the results below, and move away from the keyboard a bit as you study the plot and say "What the hell?" Click to enlarge.
Okay. I'm back. The first thing the Skeptical Spouse said when I showed her this plot was "That's not right!!?"  She was pointing to the portion where the jurors voted more frequently to convict when the strength of evidence was 1 than when it was 2. I replied with something equally as scholarly, something along the lines of "Screw that. They're voting to convict a third of the time when by their own admission the evidence strongly favors the defense."

Even when the evidence favors neither the prosecution nor the defense, both judge and jury are voting two out of three times to convict. Anyone who studies the chart for more than a minute and  still believes that we presume defendants to be innocent, or that we burden the prosecution with proof beyond a reasonable doubt, is full of blog-reading beans.

This one simple plot, based directly on data provided by judges and juries, demolishes dozens of scholarly works I've read regarding quantifying reasonable doubt. This plot causes me to propose an alternative hypothesis of jury behavior. It may not be scholarly, but it better explains the data. Here goes.

Besides destroying much scholarly work and putting the lie to some of the most fundamental principles of our judicial system, the plot also tells you that those who guess and those who divide are pretty much wrong when they arrive at wrongful conviction rates of 1 or 2 or 3%. There is no way that the behavior portrayed in the chart would result in such low error rates.

I'll add one final chart, then I'll step away from the keyboard. In the chart below, I simply overlay the idealized and realized worlds of proof beyond a reasonable doubt. I'll allow the chart to speak for itself.

Tuesday, September 27, 2011

An Offer and A Challenge

I'm not simply blowing smoke when I claim to be impressed with the recent comments to this blog. I'm going to back up my claim by making what is both an offer and a challenge.

If any of you want to find a case, research it, ponder it, and write it up in a fair and logical manner, I will post it here on this august blog, with all due credit or shame to you, the author. Then the readers can chew up your writing instead of mine. I'll just sit back and smile.

Here are some ground rules I'm making up as I go.

1. Do yourself proud. That means you should try to represent yourself well through your research, your thinking and your presentation. Your job isn't to convince others that you are right. Your job is to compel your readers to continue reading and make them think as you seek truth, justice, and the American way. You need not wear a cape. You need not wear your underwear on the outside.

2. Be willing to ignore the cheap shots and to be bothered by the thoughtful criticism.

I think that's enough in the way of ground rules. Perhaps you want to email me to give me a heads up on your intentions, but that's not mandatory. If you write beforehand though, I might have some thoughts or advice to share. I might be able to forewarn you I decided this was a horrible idea and I've called it off.

You will eventually have to somehow send me your article via email. I refuse to give up my right to control what appears on this blog, but you realize by now that I try to let people speak their mind.

If you're wondering where you might look for a case, consider reviewing upcoming executions. Perhaps instead you might want to prowl through past executions using the database provided by DPIC. Or you could write of someone who is in prison who claims they are innocent. Those folks don't get the press that the death penalty cases get. They just languish and die more slowly. You shouldn't have any trouble finding cases to write about by prowling Google.

Here's a tip and a caution. You want to find a case that has some decent documentation both for and against. "Data, data, data," Sherlock Holmes cried impatiently. "I cannot make bricks without clay."

So Jypsea Rose, and Mols, and AnonXYZ, and R. Lee, and Irev. Lynn, and Catherine Turley, Emma, and Arun, and Mark, and Malcolm Trent, and Jeff Cox, and Anonymous, and even you Tali.  Any takers?

Monday, September 26, 2011

The Postmortem Evaluation of Troy Anthony Davis: Burden of Proof

I think I'm going to make this the last post on the Davis case, at least for a while. There's a big point I want to make still, so I guess I'll have to do it herein, toot sweet.

I begin by shamelessly bragging that the New York Times linked to the Yellow and White series, the one that I wrote and the one which you guys populated with insightful comments. From their opinion pages for 26 September, Ross Douthat makes the link in his post Notes on the Death Penalty.
1) After a week’s worth of reading, I remain agnostic about Davis’s actual guilt or innocence. I recommend reading Charles Lane (and via Lane, Judge William T. Moore) for a strong argument that the justice system got this case right. Out of the numerous pieces arguing that Davis’s execution was a miscarriage of justice, this series of posts by the Skeptical Juror stands out for its attention to detail and its distinctive approach to the evidence. If you pressed me sharply to take a position, I would incline to the view that the Davis was guilty. But guilty beyond a reasonable doubt? Given everything that’s come out since the original trial, I think that a new jury should have been asked to make that call.
If you have the time, I suggest you read Charles Lane's article. Charles is reasonably confident that Davis was guilty, based in large measure on the trust he put in Judge Moore as a student of the case and as a Judge of stature.

I recognized Charles Lane's name. I've seen him on Fox News with Bret Baier. Charles is occasionally on the show as an analyst, and he seems to be insightful and level-headed. I like him. I consider it an honor, actually, that my writing is juxtaposed against his.

As far as I know, it's the first time I've been mentioned in the NY Times. It's probably going to be the last too, due to the snarky remark to follow. Until recently, I distrusted the Times writing as heavily biased and scientifically inaccurate. I now see that they are a publication of discerning taste.

Earlier, the Yellow and White series had been linked to by Ace Of Spades, a conservative blogger of some prominence. The link below goes to Part 1 of the series.
Troy Davis Executed
Dead Now: Executed at 11:08.
This blog post (and its sequels) details a more complicated case than Ann Coulter's column suggested.
[Insightful discussion regarding the series here.]
If you like CSI, or Law & Order, especially those ambiguous-ending episodes, the whole murky mess is worth a read.
Hahahahaha. I assume he meant the case was a murky mess, not my writing. Either way is fine with me though.

Ace juxtaposed the Yellow and White series against an article by Ann Coulter. Unlike Charles Lane, Ann is a provocative windbag. Not that there's anything wrong with that.

If you have the stomach, I suggest you read Ann's post. Ann is not only absolutely certain that Davis was guilty, she is absolutely certain that we have never, ever, ever (since 1950) executed an innocent person.
I notice that the people so anxious to return this sociopathic cop-killer to the street don't live in his neighborhood.

There's a reason more than a dozen courts have looked at Davis' case and refused to overturn his death sentence. He is as innocent as every other executed man since at least 1950, which is to say, guilty as hell.
Here's the interesting point, for those of you who sense newspapers are losing their monopoly. The link from Ace of Spades brought 776 hits to this blog. The NY Times brought 77.

Holy Factor of Ten, Batman! Now you know why I didn't make any snarky remarks about Ace.

Okay. Now it's time for me to justify the self-serving writing above by making it relevant to what follows. Here goes.

The point I am pleased to make here is that I've seen better analysis of the Troy Anthony Davis case in the comments to this blog than I saw in either Charles Lane's or Ann Coulter's article. You guys know the details of the case better, you constructed your arguments in accordance with those facts, and many of you admitted to uncertainty even after making your best case.

Another name for that last characteristic is an open mind. The wrongful conviction problem will not be solved by people who can't conceive they were ever wrong.

To prove my case that the analysis in the comments to this blog was superior to that of Charle's Lane and Ann Coulter, I offer a comment by Reader R. Lee.
This comes only after many scenarios have been considered, several of which I've not seen considered elsewhere. I will post again to discuss an opinion of how I think the whole night went down and some theories I would have explored had I been Mr. Davis' defense attorney.  
The Shooting of Officer McPhail, 1:08 am, August 19, 1989: 
Like everyone else, my initial efforts were spent in taking in all of the pieces of evidence, and the shirt colors worn that night were no small part. But, the questionable issue of clothing, the widely varying physical descriptions and the highly suspect photo and lineup identifications after one suspect had fingered the other had me look beyond all of those factors. Wasn't there convincing testimony to reveal who shot McPhail without using facial indentification, physical characteristics and clothing? 
You could almost call this 'the case within the case'. The crux of it all lies with three undisputable acts and three very credible testimonies. Everything else is background noise.
Troy Davis (at trial): Sylvester Coles argued with Larry Young continuously from the parking lot of the pool room and convenience store for two blocks into the Burger King parking lot as Davis trailed close behind. As Davis was leaving the parking lot (in the direction of the bank building) he saw Collins running up ahead of him in the same direction.
Larry Young (2 hours after the shooting): He was trailed by three people into the Burger King parking lot, arguing with one of them since leaving the pool room parking lot over a block away. He [Young] was looking at the guy he'd been arguing with when another person hit him in the side of the head. The third person was not involved in the altercation.
Larry Young (at trial): The person who hit him was definitely not the person with whom he had argued.
Antoine Williams (2 hours after the shooting): Three persons followed Mr. Young into the Burger King parking lot. A person hit Mr. Young with a gun. A police officer runs after the person with the gun. The two unarmed persons are running away as gunman attempts to put gun in pants. As police officer nears gunman, the gunman shoots the police officer.
Davis identifies by name the only two suspects in this case, himself and Sylvester Coles, and he exonerates Collins from being either the person who was arguing with Mr. Young and/or the person who hit Mr. Young, as does Coles' testimony. 
Davis as well identifies Sylvester Coles as being the person who was arguing with Mr. Young. Young, though he admits he might be sketchy on identifying the suspects visually, is emphatic about stating that the person who hit him was not the person who was harassing him verbally. Thus, it is clear that Sylvester Coles was arguing with Mr. Young and that Troy Davis hit Mr. Young on the side of his face with the butt of a gun. 
There were actually three witnesses who on the night of the shooting stated that the person who hit Mr. Young also shot McPhail (actually there was a fourth, but the fourth did not see the first shot that was fired). However, two of them were on the east side of the parking lot, and were momentarily distracted by Mr. Young's dash for help before looking back to see the officer get shot. Antoine Williams was in his car on the other side of the commotion with a full view of all that occurred. 
Williams clearly asserts (and we have no reason to doubt his veracity whatsoever) that the only weapon he saw was that which the assailant [Troy Davis] had used to hit Mr. Young, whereupon the assailant [Troy Davis] was attempting to put the gun back in his pants and "appeared to panic" as the officer approached. The assailant [Troy Davis] turned and shot the officer [McPhail].
Case closed.
Reader R. Lee clearly has a better grasp of the case details than do either Lane or Coulter, at least based on their writing. Also, Reader Lee knows his readers have a better grasp on the case details than either Lane or Coulter can expect of their readers. That's why their writing is fluffier, less focused. That's why they're so willing to ultimately relinquish their decision to Judge Moore or give in to their confirmation bias. That's why they can't get to the heart of the matter.  

Here's what I like about Reader Lee's analysis. He provided the clearest, most organized, argument for guilt based on the statements and testimony of people who actually witnessed at least some part of the crime.

Here's where I think Reader Lee went wrong.

1. He began by trying to preempt all evidence and arguments that might contradict his scenario. "Everything else is background noise." See. While many of us try to wrestle with the shirt swapping business, and while many of us have at least some concern about the statements and testimony due to multiple, similar claims of police coercion, Reader Lee simply declares by fiat that "Everything else is background noise."  That's a pretty easy way out. I think it would have been better had he simply made clear that he intended to focus, for the purpose of his argument, on the statements and testimonies of those who witnessed the crime. He could have then worried about rationalizing his conclusion with all the other evidence later.

2. He attempted to lead his readers to an irrefutable conclusion by building his foundation block by irrefutable block. That's good, except some of his blocks were crappy. Consider his claim that we have no reason whatsoever to doubt the veracity of Burger King Employee Antoine Williams. Hahahahaha. Good one.

Williams first said that the shooter wore a white or blue t-shirt, that the tint on his windows kept him from being sure which. Heck, I doubted his veracity at that point. In his second statement, he added that his window tint would not have prevented him from distinguishing yellow from white or blue. That's bullshit of course. I knew by his second statement he was pretty much telling the police what they wanted to hear. Then he testified at trial that Davis was the shooter and was wearing a yellow or white shirt.  Good one Antoine. On cross, he changed his mind and said that he must have been right earlier when he said the shooter was wearing a blue or white shirt. In his recantation, he said his windows were so tinted he couldn't make out any colors. Now how did Reader Lee, who read all the case information, get all the way from that incorrect / perjurious testimony to no doubt about his veracity?

Consider also the faith he put in Larry Young's statement, despite Young's recantation that he was both drunk and drugged. Recall that Young was going to the store to get more beer, given they had already gone through the first, or second, or third batch. Which Larry Young does Reader Lee choose to believe: the one who  claimed to see everything clearly or the one who claimed to be blitzed?

3. Reader R. Lee, who made a good but imperfect case of guilt, finished by boldly claiming "Case closed."

And so finally, blissfully, Reader Lee's "case closed" assertion leads me to the point with which I choose to close this series.

Those who favor the death penalty and those who want to believe we have never executed an innocent person must always be sure. For them, each and every case in the past and in the future must always be "Case closed." If they ever allow themselves to believe that an innocent person has in fact been executed, they must then change their stand on the death penalty, or they must argue that it is acceptable to execute a few  (just a few, mind you) innocent people.

I'm not claiming that Reader Lee is a death penalty proponent. He makes clear elsewhere that he believes Davis should not have been executed. And I don't know if Reader Lee believes we have ever executed an innocent person. I will say, however, that I think his "Case closed" statement belies some wishful thinking.

Reader Lee is in good company, however. Charles Lane and Ann Coulter are also confident that Davis was guilty. For those two as well, the Davis case is closed.

For myself, I choose to remain skeptical.

Sunday, September 25, 2011

The Postmortem Evaluation of Troy Anthony Davis: Shirt-Swapping

In the previous postmortem post, I took a look at how well we were able to confine ourselves to the facts of the case, and to construct a logical arguments of guilt or innocence. I think we did pretty good. Some of us have room for improvement. I include myself in the group.

I'm apparently a slow learner, too. Last night I posted retroactively on the Steven Woods case. I allowed myself to go in for some poorly supported bad character claims, and I'll have to clean that up when I get a chance.

Tonight, I want to talk about how we did on the Sylvestor Coles shirt-swapping issue.

As I evaluate cases, I find most to be routine examples of man's inhumanity to others. It seems, though, that the ones with a potential for wrongful conviction have one or more tells that catch my eye and draw me in.

With respect to Byron Case, it was a mis-transcribed audio recording that made me begin to seriously question the State's case. It was the fact that the victim died with her eyes open that caused me to discover a little-known time-of-death marker that convinced me Byron is factually innocent. (I just finished a 19 page amicus letter in support of his petition for absolute pardon. I'll be sharing that before too long.)

In the Michael Ledford case, it was two missing candle holders and a strange looking circuit breaker that told me that Michael did not kill his one year old son via arson. (I just finished drafting a 147 page petition for absolute pardon for his case. I'll be sharing that sometime down the road.)

In the Cameron Todd Willingham case, it struck me that the State had a serious, serious conservation of mass problem. Willingham allegedly covered a large bedroom, a hallway, both sides of a door, and a porch with enough lighter fluid that it formed puddles and soaked deep into the flooring. They only found one small empty container of lighter fluid, and that was by the barbeque.

That conservaton of mass problem and of course the requisite lying ass snitch.

In Cory Maye, the case was littered with tells. Littered. A cop had been killed, however, and the police were going to see to it that Cory Maye paid the ultimate price. On a high note, Cory Maye walked free just a month or so ago.

Hank Skinner: Unknown fingerprints on a trash bag that held the bloody knife; untested DNA from a rape kit and from beneath the victim's fingernails. No scratches on Hank.

Larry Swearingen: Undigested tater tots and McNuggets in victim's stomach.

Frances Elaine Newton: A phone call reporting a gunshot that didn't fit into the police timeline.

Johnny Frank Garrett: A bent butterknife that the State claimed Garrett used to strangle a nun. (Who would strangle someone with a butterknife?)

As I worked on the Troy Davis case, two tells set off claxons in my skeptical head. The shirt swapping story and Dorothy Ferrell recognizing Davis' photo on the seat of a police car that just happened to stop by on an unrelated matter. Hahahahaha. Good one.

The one that set off a chime rather than a claxon is Officer MacPhail allegedly running right past Coles to confront Davis, even though MacPhail allegedly responded to the screams and did not see who struck the beer-hoarding Young. More than a couple of you readers homed in on that one.

The one that I completely missed, until Reader R. Lee pointed it out to me, was how everyone knew the color of one shirt (white) but almost no one mentioned the color of the other shirt (presumably yellow.)  "The only pre-Coles statement to include the color Yellow in it is Young's."

Good one, R. Lee.

As I already mentioned, before ambling about randomly for a while, I intend to focus (like a laser) in this post on the shirt swapping incident. It's time I get on with it.

Let's look first what I had to say about the shirt-swapping incident.
Had I been a juror, claxons would have been blaring in my head when the first one of them testified about the shirt swap. It's a transparently bogus story. My thought would have been that they feared someone had seen Coles in a white shirt or Davis in a yellow shirt. Any such sighting would be evidence that Coles, not Davis, was the shooter. So they concocted the story about the shirt swap to create plausible deniability. "Sure, my brother wasn't wearing the yellow shirt after the shooting, because I gave him a fresh one."

When the second one of them testified about the shirt swap, I would have hit the ceiling. I would have known then, without doubt, that they were lying. Coles said at trial that he gave the yellow shirt to Davis because that was the only other shirt he had at the house. Well that was certainly unfortunate for Davis. Recall that Coles had just been running for 15 to 20 minutes all the way from the crime scene to his sister's house.

Then it would hit me as odd that Coles kept shirts at his sister's house so that he could change after playing basketball, but the only shirt that was at her house was a red, white, and blue collared shirt. Seems like a limited and odd collection. Perhaps, I might think, he had taken all the others home with him to wash them.

Nope, that wouldn't be it. His sister said she washed the shirts for him. Remember? She washed the yellow shirt the next day, before giving it to the police. One wouldn't any unsightly incriminating evidence left on the shirt. How embarrassing!

The testimony that would have really done it for me, however, was when the sister said she laid out three shirts for her brother to change into. That's two more than her brother said were available. Why did Coles give Davis the sweaty, stinky t-shirt when he had just selected from a collection of three clean shirts his sister had laid out for him? 
I couldn't come up with a reasonable alternative explanation for the shirt swap. I figured they were lying, if for no other reason than they couldn't keep the number of shirts straight, but I couldn't figure out what they were tying to accomplish. I really jumped the shark when I suggested she washed the yellow shirt to remove incriminating evidence. I'll tell you why once I talk about how you guys also stumbled on the shirt swapping issue.

I'll begin with those of you who argued it must have gone down just as Coles and his sister said. That's a fair number of you, actually. It seems to me that you simply ignored the fact it couldn't have gone down like the two of them said, because the two of them said it differently. Coles said he gave Davis the yellow shirt because it was the only other one he had. His sister said she laid out three shirts for Coles. One or both of them is lying. That's the tell. You missed the tell.

You can try to argue that they may have lied about the number of shirts, but they didn't lie about the rest of the story. You can try it. The rest of us aren't buying. We shouldn't be executing someone based on the claims of people who provide perjurious testimony.

Reader Catherine Turley homed in on the shirt-swapping problem after Part 3, even before I wrote of it in Part 4. Here's a fraction of what she wrote:
if i believe coles was telling the truth about the shirt, and didn't do the killing, then he would have been knowingly implicating himself by giving the yellow shirt to troy (unless he's really stupid). if coles was telling the truth, but did do the killing, he was trying to set up his friend. if he was lying, and did do the killing, he was trying to implicate his friend. and if he was lying, and didn't do the killing, then he still has something to hide. looks like coles is guilty of something. i'll have to read over it again.
I'm smiling. I had to read her comment over again just as she had to read my writing over again. Anyway, she offered the thought that Coles was trying to implicate Troy by giving him the yellow shirt.

Reader Anonymous followed Reader Catherine Turley's comment with a similar thought, I think. He (or she) wrote in part:
A very confusing stage of events to say the least. My question is, it's stated that both Coles and his sister confess that when Davis arrived shirtless Coles gave troy his yellow shirt. The shirt he was wearing at the scene of the crime. I presume this acknowledgment is in the police records. Coles testified that Davis was in fact the shooter... he being an eye witness. He knows Troy just shot and possibly killed a cop and when troy asks him for a shirt to put on he gives him his crime scene garb. That's like giving him his identification. It's telling everyone that the guy in the yellow shirt killed the cop, the yellow shirt that the innocent Red Coles was wearing.
So at least I think Reader Anonymous agreed with Reader Catherine Turley.

Then I commented on my own post, complimenting them on their clear-headed thinking.
I like your analysis about why an innocent Sylvester Coles would not have given the actual shooter a shirt that would clear the shooter and increased the chance that he (Coles) would be implicated. Very clever.
Wow. What a dunderhead!

Then Reader Anonymous is back suggesting the yellow shirt was washed because it may have had gunshot residue on it so they had Davis wear it so that they could say any gunshot residue on the shirt came from Davis.  And I bought into that one as well, with the following brain-dead comment.
Good on you. I hadn't thought of the gunshot residue angle. I thought it strange they would invent a story about Davis putting on the shirt then soon taking it off, but I couldn't figure out why.

At least now, since your comment, I am aware of a viable hypothesis.
Finally, a different Reader Anonymous set us straight.
Why would there be gunshot residue on the yellow shirt? The one thing everyone agrees on is that the shooter was wearing a white shirt.
Thanks Reader Anonymous for the whack on the head. I needed that. There wouldn't be gunshot residue on the yellow shirt, and there wouldn't be DNA on the yellow shirt (as others suggested), and Davis wouldn't be incriminated if he was caught in the yellow shirt.

Here's the deal, as I now see it, assuming you still trust my ability to reason logically.

Either the shirt swapping story is true or it's not. (So far, so good.) If it's true, then Coles was wearing the yellow shirt. (I think I'm okay so far.) If it's false, then Coles was probably wearing the white shirt. (I'm getting a little nervous.) But Coles' sister gave the police a yellow shirt, one that she had recently washed. (Now I'm getting a bit more nervous.) It's not clear, however, that Coles had a yellow shirt. In the false shirt-swapping scenario, he didn't have a yellow shirt at the crime scene. Unless he coincidentally had a yellow t-shirt kept at his sister's house, they would have needed to get hold of one somehow. (Sweating bullets here.)

At first, they didn't realize they needed one, so they didn't mention the shirt swapping story in their initial interviews. But then, Larry Young later identified Coles as the man in the yellow shirt, after earlier identifying someone unrelated to the case. (I'm getting ready to go out on a limb.)  Furthermore a bunch of people had told the police that the guy in the white (or light-colored) shirt was the shooter.

It was at that point that Sylvester Coles realized he had two big problems. First, a number of people had seen him after the shooting in a white shirt. Second, he didn't have a yellow shirt. (It's too late to stop now.) So they simply went out and bought a nice yellow shirt. It looked new, so they aged it using a number of techniques, including washing it. (I wonder if they're buying it.) The story about Davis showing up wasn't necessary, it was just a nice twist. Claiming that Davis showed up without a shirt is all the incrimination they needed to provide to the police. Claiming they gave him the yellow shirt simply added color and realism to the story. They couldn't let him keep it, though, because they had to give a yellow shirt to the police to prove that Coles was wearing one that night.


So, finally, how do I assess our ability to make sense of the shirt-swapping tell?

Not so good. I think most of us were pretty careless in our logic on this point. I'm not sure we have it figured out yet.

I think I'll wrap this postmortem up with one more post. I think I'll write about how we attempted to figure out who was telling the truth: those who claimed coercion versus those who denied coercion.

Good night.

Saturday, September 24, 2011

The Posthumous Impending Execution of Steven Woods

"The killer is Marcus Rhodes, not Mr. Woods. It's Marcus' gun. It was found in his room, under his bed. If he were here in this courtroom, I would be pointing at him, telling you that over and over, but I don't have that opportunity." -- Denton County Judge Jerry Parr

"I think the death penalty is a crime no matter what the circumstances, and it is particularly awful in the Steven Woods case. I strongly oppose the execution of Steven Woods on September 13 2011." -- Noam Chomsky (8/26/11)

"You're not about to witness an execution, you are about to witness a murder. I am strapped down for something Marcus Rhodes did. I never killed anybody, never. I love you, Mom. I love you, Tali. This is wrong. This whole thing is wrong. I can't believe you are going to let Marcus Rhodes walk around free. Justice has let me down. Alex Calhoun completely screwed this up. I love you too, Mom. Well Warden, if you are going to murder someone, go ahead and do it. Pull the trigger. It's coming. I can feel it coming. Goodbye everyone, I love you." -- Steven Woods, last statement, September 13, 2011.

Because of time limitations, I did not prepare a post regarding the impending execution of Steven Woods. Now it is too late. He was executed on 13 September. I had, however, conducted some research on the case, and I noted on my navigation page that I stood mute with respect to his execution. Two astute and curious readers have asked about my decision to stand mute, since it seemed to them Steven Woods might have been innocent. I will therefore take a posthumous look at his case and see if any mea culpas are in order.

Speaking for Woods will be the folks who maintain his innocence website. I will refer to those folks hereafter as Woods.

Speaking for the State of Texas will be the appellate judges via their decisions in Woods v. Quarterman (2009) and Woods v. Thaler (2010). I will refer judges and their decisions hereafter as Texas.

Let's begin by looking at the factual background as summarized in both the referenced appellate decisions. Texas says:
Early in the morning of May 2, 2001, two golfers driving down Boyd Road at the Tribute Golf Course near The Colony, Texas, found the bodies of Ron Whitehead and Beth Brosz. Both had been shot in the head and had their throats cut. Whitehead was dead; Brosz was still alive but after receiving medical care, she died the next day. That evening, police received several anonymous tips that Woods was involved in the killings, along with one Marcus Rhodes. Detectives interviewed Woods, who admitted to being with the victims the night before their bodies were found. He said that he and Rhodes had agreed to lead Whitehead and Brosz to a house in The Colony owned by someone named "Hippy," but that their two vehicles became separated during the trip, so he and Rhodes returned to the Deep Ellum section of Dallas. Woods was not arrested as a result of his interview. Detectives then interviewed Rhodes, and after a search of his car revealed items belonging to Whitehead and Brosz, Rhodes was arrested.

Woods left the Dallas area, traveling to New Orleans, Idaho and California, where he was finally arrested. Several witnesses testified that before the killings he told them about his plan to commit the murders, and after the killings, he told them about his participation in them.
That's pretty thin as factual summaries go, but It will have to do. Woods v. Quarterman has a fair amount of detail sprinkled elsewhere throughout its decision, so we may have enough to work with here.

Woods summarizes the case thus.
In 2002, Steven Woods was wrongfully convicted of capital murder and sentenced to death by lethal injection for the shooting deaths of a young couple in Denton. He spent the next 9 years of his life awaiting death, in solitary confinement with no phone/computer access or human contact.

There was no physical evidence that ties Steven to the crime scene, and Steven disproved the court's only physical evidence used against him: The prosecution presented a latex glove that they claimed had his DNA on it. Knowing this isn't possible, Steven demanded that the glove be tested. The DNA on the glove did not match Steven's DNA. This glove was stricken from the protocol by the sentencing judge, to ensure that Steven would not use it as exonerating evidence in his appeals.
Woods seems to be correct on this point. I find nowhere in the appellate decisions any discussion of physical evidence tying Woods to the crime. I didn't even know about the latex glove until Woods brought it up. Anyway, Woods continues:
Steven was indicted and tried as the shooter. ... Three months after Steven's wrongful conviction, a man named Marcus Rhodes stood up in court and took full responsibility for knowingly & intentionally murdering both victims. Both victims' backpacks were found in the Trunk of Rhodes' Mercedes. Rhodes' fingerprints were on the weapons, his car was littered with shell casings, the guns were registered under his name and found hidden, under his bed. at his parents' home in Dallas. ... Rhodes admitted to shooting both weapons and all fatal shots as well as cutting the victims' throats, never once mentioning Woods in his testimony.

Marcus, the murderer got life in prison while Steven remained on death row.
Woods claims there is no proof he was even at the crime scene. During his trial, in fact, he produced an alibi witness, Leslie Batteau. Let's see what Texas had to say about Leslie Batteau.
During the guilt-determination phase of his capital trial, Woods raised an alibi defense. Leslie Batteau testified that he and Woods were asleep in an abandoned building at the time of the murders and did not learn of the murders until the next day, when they encountered Marcus Rhodes at the Insomnia coffee bar. The prosecution questioned Batteau as to whether Woods ever told him that he (Woods) and Rhodes committed the killings, and whether he (Batteau) had said to anyone else that Woods had told him that he and Rhodes killed Whitehead and Brosz. During the state's rebuttal case, the prosecution recalled David Samuelson and elicited the following testimony:

Q: What did Les[lie Batteau] tell you [Woods] had told him about the murder of [Whitehead] and [Brosz]?

A. He said that they drove up --

Q: Who is "they"?

A: Marcus and Halo [nickname for Steven Woods] in the front with Ron and Beth's car behind them, and they got out. Ron said, you brought me to the perfect place to set me up. And then that was the last thing he ever said.

Q: Who did Les[lie Batteau] tell you killed Ron?

A: [Woods].

Q: Did Les[lie Batteau] ever tell you he was with [Woods] the night of the murders?

A: No.

Q: Has Les ever said anything to you about being at The Squat with [Woods] the night of the murders?

A: No.

Q: Who did Les[lie Batteau] tell you murdered Ron and Beth?

A: [Woods].
Woods appeal was based in part on this testimony being hearsay, which it clearly is. But hearsay rules apply only to defense witnesses. (I over-simplify, but not by much.) There are so many exceptions to hearsay rules, almost all of them favoring the prosecution, that the entire hearsay business has become just one more weapon in the State's arsenal. The fact nonetheless remains that witness David Samuelson seriously rebutted witness Leslie Batteau's alibi testimony. In fact, the rebuttal witness moved Woods from being at the Squat (sounds like a nice place) with Batteau to standing over the bodies with Rhodes.

Woods complains, and rightfully so, about the snitch testimony. That's right, the State once again used a snitch. They can't help themselves.
One jailhouse informant recanted his testimony and acknowledged an agreement with the DA.
That's true, and all of you know I trust snitch testimony even less than I trust the feds with my tax dollars. Let's see what Texas had to say about their snitch.
Woods's eighth claim is that he was denied his right to the assistance of counsel during custodial interrogation when inmate Gary Don Franks ("Franks") elicited information from him while he was incarcerated. ... A criminal defendant may not have used against him at trial evidence of his own incriminating words, which federal agents deliberately and surreptitiously elicited from him after he had been indicted and in the absence of his counsel. ... In the present case, Woods contends that Franks, his cellmate, attempted to get him to talk about the killings, at the behest of the state, who then rewarded Franks by dismissing drug offense charges that were pending against him.

It is undisputed that Franks had numerous conversations with Woods, testified at his trial, and that the charges were dropped after he testified. Franks and his attorney stated in affidavits, however, that Franks did not attempt to elicit information from Woods, and that he had his attorney contact the prosecution and offer to testify without expecting, or being promised, anything in return.

Franks and his attorney would have at least hoped for, and in fact harbored some expectation of, receiving something in return for his testimony, even though no promise was made by the government. The issue is whether in these circumstances Franks should be considered a "government agent" ... An individual is a government agent where he was promised, reasonably led to believe, or actually received a benefit in exchange for soliciting information from the defendant and he acted pursuant to instructions from the state, or otherwise submitted to the state's control. ... In the present case, while the Court agrees with Woods that Franks appears to be "an individual who knew how to manipulate individuals, as well as the criminal justice system for his benefit," ... there is no evidence that Franks acted pursuant to instructions from the state, or otherwise submitted to the state's control. ... Since Franks was not a government agent, the state court's denial of this claim was neither contrary to, not the result of an unreasonable application of, clearly established federal law ... The Court denies Woods's eighth claim.
What a bunch of crappola.

Now on to the meat of the case against Steven Woods. He was a blabbermouth. He told a fair number of people he killed the victims. About those confessions, Woods has this to say:
All witness testimonies consisted of hearsay which is inadmissible in court. Witnesses recanted their well-coordinated hearsay testimonies. Some witnesses were paid to testify, others were threatened.
Woods is wrong about his first point, as I have already pointed out. Courts admit hearsay testimony on all days having a "y" in their name, as long as the hearsay testimony is coming from a State witness. Regarding the recantations and the threats, I am aware of none. It's not to say they aren't out there. I'm just pointing out that they are much harder to find than the recantations in the Troy Davis case.

Some of the people that testified about Woods confessions include Melissa Byrom, Whitney Rios, and Staci Schwartz. None of those three provided hearsay testimony.
Melissa Byrom testified that she ran into Woods, who was with a friend of hers, on approximately May 5, 2001, and that Woods offered to pay for her gas and pay for an oil change for her car if she would drive him to New Orleans. She and Woods, along with two of their friends, left the next morning, and she ended up staying there for three or four days. During that time, she heard Woods, on two occasions, say that he had killed two people in Dallas. She became scared, drove back to her house in Texas, and on May 15, 2001, she made a statement to the police. On cross-examination, she admitted that, in her May 15, 2001 statement, she only mentioned one occasion in which she heard Woods say to another person that he had killed people in Dallas. She also stated that she thought she may have had a beer or something during the time she was in New Orleans.
The prosecution called Whitney Rios and Stacy Schwartz, who each testified that the day after the murders, Woods said that he and Marcus Rhodes had killed Whitehead and Brosz. The conversations took place at separate times.
Staci Schwartz testified that on the day after the murders, Marcus Rhodes and Woods told her they had killed Whitehead and Brosz, and Rhodes showed her their property in the trunk of his car. ... Rhodes told Schwartz that they had used Brosz's credit card to buy tickets in Samuelson's name to make him look guilty.
Woods argues, in various fashions, that these people were lying. Indeed they may have been lying. Woods, however, seems to acknowledge in his appeal that he told lots of people he killed the victims. This was one of the strangest appellate claims I've ever read. Hang on to your hats.
Woods's ninth claim is that his trial counsel rendered ineffective assistance by failing to impeach his own inculpatory statements. ... Woods's lead defense counsel for the guilt-determination phase of his trial was Jerry Parr. Parr said in his affidavit that after being presented by the prosecution with a list of approximately 100 witnesses, he asked Woods specifically if Woods had made any statements to any of the witnesses about the murders, and Woods denied making any incriminating statements to any of them. Parr stated:
Unfortunately, Mr. Woods' false statements to his attorneys that he had not made any admissions eliminated the development of evidence that the statements testified about at trial were the product of his propensity for untruthfulness. Perhaps, if he had admitted to his attorneys that he had made a series of admissions about the murders and that those admissions were false, evidence that he was a liar, rather than a killer, could have been developed.
So Woods' argument is twofold. First, I never confessed. Second, I told lots of people I did it, but only because I'm a habitual liar.

That's not grabbin' me as a great defense. I'll also admit that some of the bad character evidence offered during the punishment phase didn't make me lean towards innocence.
During a separate punishment hearing, the State, in addition to evidence about the circumstances of the crime and Woods's moral culpability, presented evidence that Woods was involved in the murder of another individual in California one-and-a-half months prior to the murders of Whitehead and Brosz; that Woods got into a fight with another inmate in the Denton County Jail; that Woods, Rhodes, and two other accomplices planned to rob a clothing store in Deep Ellum; that Woods may have planned to murder a woman who was coming to pick up vials of "acid" to sell; and that Woods made "bottle bombs" as a juvenile. ...
Based upon the credible affidavit of the government's lead prosecutor, Michael Moore, the government had additional evidence that it could have presented to prove Woods was a future danger including evidence of bomb-making, sexual assault, documentation from mental hospitals that Woods hated society and was sadistic, school officials who could not testify to anything favorable or redeeming about the defendant, sexual abuse of his younger brother, escalating physical abuse of siblings and dogs, affiliation with white supremacists, theft, drug dealing, and that even Woods's fiancée and her family would testify as to Woods's negative character.
Okay. I have to laugh a bit. Given the rather sordid list of bad character items, I find this one the most disturbing: "School officials ... could not testify to anything favorable or redeeming about the defendant." Hahahaha. Forget the bomb-making, the canine abuse, the planned murder, the actual murder, the sexual assault, and all the rest. They don't mean all that much. But when school officials have nothing good to say about you, it's the needle for you, mister.

Now that I've organized my research and thinking into pixels, I think I'm still going to stand mute regarding the propriety of Steven Woods execution. I perceive Steven Woods in much the same way as I perceive Cleve Foster. He put forth a superficially compelling case of factual innocence, but he was nonetheless a disturbing individual who was most likely guilty of the crime for which he was sentenced to death.

Friday, September 23, 2011

The Postmortem Evaluation of Troy Anthony Davis: Cherry-Picking

In this introspective postmortem, I hope to assess the recent writing on this blog related to the Troy Davis case. I intend to assess both my writing and yours, as reflected in the comments.

I begin by complementing you, the readers, for the quality of your comments. Compared to the comments I see on other sites, your comments are quite impressive. You come across as well-informed and logically consistent. You rely on reasoned argument rather than venom. I am seriously impressed.

For comparison, I'll provide a small sample of comments from another site.
May this scum rest in hell!

I would not call the justice system the scum if by some chance this guy is in fact innocent.  These people who are now recanting are the ones who testified and played a significant role in sending him to death row. If he is innocent they would be the scum in my eyes.

New evidence!!  Now where have I heard that shyte before? Oh yeah, it was in our case wasn't it?   Not really any new evidence at all.  Just people willing to perjure themselves to get another scumbag off death row with an innocence claim.

Move to the head of the line POS scum.

I got my popcorn.  This might be good.

Welcome to Hell rubbish Davis.
One can really learn a lot from such erudition.
I don't claim that no one has ever commented in such childish fashion on this blog, but the exceptions are pretty rare. Not long ago, I noticed this comment on The Impending Execution of Martin Robles.
We all know you Americans aren't courageous enough to face the world without your guns and bombs.

Your own "God" says killing is wrong. It is always wrong. True strength and true power lie in forgiveness and compassion.

But you're all so scared that you'd rather twist around your own God's words that be brave and true.

- A contemptuous New Zealander
To which I replied:
To the contemptuous New Zealander,

In case you haven't noticed, this site focuses on wrongful conviction issues in The United States of America. I'm liberal in allowing comments even remotely related to the case or issue addressed in the post. I want to encourage discussion.

No one, however, should mistake my criticism of our justice system for disdain of country. I am unabashed in my love for this country, for reasons far too lengthy and powerful to enumerate here.

Your comment about Americans lacking courage is demonstrably absurd. Perhaps you simply are ignorant of history and current events. Perhaps you simply are incapable of preventing your bias from being expressed in such unflattering fashion.

In either case, I ask that in any future comments to this blog you attempt to limit your point to the case or issue at hand. I ask also that you attempt to rely on reasoned argument rather than embarrassing blather.

In return, I promise not to change my high regard for New Zealand and its people based on your poor representation thereof.
Compare now the comments above with one from Jeff Cox. After complimenting me (which is not a completely ineffective technique), he disagrees with me. He then leaves open the possibility of further discussion. He has an opinion, but he seems willing to listen to others.
First, I want to thank Skeptical Juror for posting all this analysis of the Troy Davis case. I'm going to bookmark this site and enjoy the other analyses offered here. Good work.

That said, I disagree with your conclusions on the Davis case as expressed in your posts. I know that you've tried to simplify the case and I appreciate that, but I think you've still made it too complicated, specifically with reference to the shirt-switching. Maybe I'm missing something, but this is how I see it:

1. Davis and Coles were present at the shooting, by their own admission.
2. One was wearing a white shirt, the other a yellow shirt.
3. The eyewitnesses agree (though this case is another exhibit as to the inherent unreliability of eyewitness testimony) that the shooter was wearing a white shirt.
4. Coles produced the (or at least A) yellow shirt.

5. Davis must have been wearing the white shirt.

Now, the dubious shirt exchange becomes probative if it was actually Davis who was wearing the yellow shirt and he gave it to Coles. But your posts do not indicate that such a scenario was alleged, only that Coles was lying about the shirt exchange, though the exact nature of that lie was is not addressed.

So, the logic of the conviction is as I explained above. Where am I going wrong?
Good on you, Jeff.

On the other hand, I'm not as impressed with Malcolm Trent's comment. He also disagrees with me, but that's not significant. He relies on sarcasm, but then so do I on more than rare occasion. His comment, though, relies too heavily on trivializing the arguments of the other side. He also sets up weak straw men which he then bravely swats aside. His summary of the opposing point of view is simply wrong. Finally, it seems as if his mind is made up, and further discussion would be unlikely to change it.
Consider also that there were many more witnesses that you chose to cherry-pick through and you'll find that your narrative is quite shallow, though I appreciate your sounding board.
Let me see if I can sum up the Troy Davis defense succinctly...

Mr. Coles shot the officer, then quickly fabricated a story with his sister which did not include an alibi, but rather instead sinisterly focused on a wardrobe change that they had no forewarning would be so substantial. They then masterminded a plan to hand Davis' shirt to the police in an effort to provide their own version of events and then frame up Davis in a fake series of events. The police, now in a tizzy and with knee-jerk reaction then rounded up a series of innocent ignorant bystanders and brow-beat them into falsifying testimony, continued to lean on these witnesses for two years until the trial occurred at which time all of the witnesses still feared for their freedom and dutifully offered fake testimony to a majority black jury who ruled then found Davis guilty because their were 7 black jurors that were very biased against the black man. Then, after 22 years, numerous judges who are intimately familiar with the case including the Supreme Court of the United States all had such a raging hard-on for Troy Davis that they all became complicit in the erroneous execution of an innocent man.

Would you care to buy the Brooklyn Bridge? I'll cut you a sweet deal on it.
Despite my criticism, I nonetheless consider Malcolm's comment to be quite valuable. His accusation that I cherry-picked the data initially caused an adverse reaction on my part. I considered posting an essay explaining how I hadn't cherry picked the witnesses. As I thought about it more, I realized he was right, and I offer the following mea culpa.

In my Troy Anthony Davis database, I have the names (or anonymous identifiers) of 38 people. There's no way I could discuss them all without making the series more of a morass than it was. I had to decide who I was going to discuss, and who I was going to exclude. So far so good.

When I decided to simplify the case by limiting discussion, at least initially, to those unbiased witnesses who gave statements and identified shooters only before Sylvester Coles went to the police, I narrowed my problem of telling the story, and I still think it was a good approach. So far, so good.

However, even within that much smaller subset of witness, I cherry-picked. I did not include, at that point, the testimony of Darrell Collins. He complicated my story because I could not fit him neatly into my premise. I feared losing you, the reader, as I tried to explain how his testimony really did fit the simplified story I hoped to tell.

My problem was that Darrell Collins stated initially that Davis was wearing the white shirt, and he never explicitly recanted that specific point. Judge Moore picked up on that and dismissed his affidavit because of it.

I discussed Darrell Collins in a later post, when I had an opportunity to counter his statements and testimony with his recantation. I figure his recantation story will clear everything up. Even though he was the third man, I excluded him in my initial discussion. I now believe I was wrong to do so.

Malcolm's comment also made me think about cherry-picking on a larger scale. Malcolm cherry-picked his facts immediately after accusing me of cherry-picking my facts. We all do it. It starts because we can't discuss the entire universe of facts and ideas. We have to pare things down to a specific case, or to a specific aspect of the case, or to specific witnesses, or to specific statements of those witnesses. There is nothing fundamentally wrong with limiting the discussion to a properly selected sub-set of facts. The challenge, however, is to select the facts fairly. When we pick the facts to fit our premise, we engage in cherry-picking.

Malcolm's accusation in fact has substantial relevance to the Troy Davis case. I'm pretty confident, that the Savannah PD engaged in some serious cherry-picking. Once Sylvester Coles showed up and told them "I can give you the name of the cop-killer", the cherry-picking kicked into overdrive. Their resulting behavior is also referred to as target fixation or tunnel vision.

In a recent YouTube question and answer session with The Innocence Project, the staff attorney was asked what she perceived to be the primary cause of wrongful convictions. I anticipated she would say incorrect eye-witness testimony, since bad eye-witness testimony is a factor in more than 70% of the DNA proven wrongful convictions. I was wrong. She said the biggest problem was tunnel vision. Once police decide they have their man, they over-inflate any evidence that points in his direction and dismiss any evidence that points away from him.

For what it's worth, what has been referred to here as cherry picking, target fixation, and tunnel vision has a lofting sounding name. It's called confirmation bias. For those trying to get at the truth, rather than just win the argument, beware the confirmation bias.

In the next post in this postmortem series, which will be probably in two days, I want to discuss what we have written about the infamous shirt swap.

Good night.

Thursday, September 22, 2011

The Postmortem Evaluation of Troy Anthony Davis: Intro

Late tonight (or in the wee hours of tomorrow morning), I will begin a postmortem evaluation of the Troy Anthony Davis case. I won't however, be evaluating the people of Georgia, or their police, or their prosecutors, or their judges. I won't be evaluating the U.S. Supreme Court.

I will instead be evaluating us. I will be evaluating you the readers and me the blogger. I will be looking at how we did in assessing the case, to see if we can learn from our mistakes before we are too harsh in judging others for theirs.

Representing me in this postmortem evaluation will be me. I'm concerned about the quality of my representation, but I'm all I've got. Representing you, the now-confused reader, will be those who commented on my five-part Troy Davis series that garnered more attention than any other post or series I have written.

It's not too late to be criticized for your writing or thinking. (It's fun. Really. Trust me.) Overcome your fears of saying something stupid or something brilliant. Add an insightful comment about the case now. And if you comment within the next 20 minutes, I'll throw in the shipping and handling for free.

Maybe you too will be mentioned in the postmortem.

Wednesday, September 21, 2011

Troy Anthony Davis Executed by the People of Georgia

From the Atlanta Journal-Constitution:

10:57 State Attorney Generals office notifies MacPhail's mother Anneliese "[Davis] is on the gurney, the needle is in."

11:08 Davis pronounced dead.

Tuesday, September 20, 2011

Supremes Grant the Disturbing Cleve Foster a Stay

The story is in the title. If you demand an even more in-depth report, feel free to check out the NY Times article. It has more fluff, but not much more content.

I Oppose the Execution of Troy Anthony Davis

Troy Davis is will almost certainly die tomorrow at the hands of the people of Georgia. He will die with a needle in his arm, a knife in the heart of Themis, and another indelible stain on our justice system.

I have presented my case in five extended posts, beginning here. At the end of the last of those five posts, I stated that I oppose the execution of Troy Anthony Davis. I do not, however, want my opposition to go any more unnoticed than necessary. I will therefore state my opposition here, briefly and unequivocally.

I take no position one way or the other on the death penalty in general. I vehemently oppose, however, the execution of any person who might reasonably be innocent. I have reviewed almost every execution this year beforehand to determine whether the person might reasonably be innocent. I have stood mute on  each of the 33 executions so far this year except for Eric King (almost certainly innocent), Cary Kerr (possibly innocent), and Richard Bible (almost certainly guilty). I also opposed the execution of Richard Clay (probably innocent, commuted) and Larry Swearingen (absolutely innocent, stayed).

I believe it is substantially more likely that Sylvester Coles murdered Officer MacPhail than it is that Troy Davis murdered him. As a minimum, there is far too much uncertainly in this case to justify an execution.

I therefore oppose the execution of Troy Anthony Davis.

The Yellow and White Case of Troy Anthony Davis: Part 5

It's another late night / early morning post on the Troy Davis case. I'm so tired I'm not even going to caution you to read the previous posts in this series first, much less provide a link to them. I'm just going to begin abruptly.

I ended the last post by explaining why I would have voted not guilty in the case of Troy Anthony Davis, and by claiming that most of you out there would have voted guilty.

For those of you who took umbrage at my claim, for those of you who think I'm placing myself on morally superior high ground that anyone can easily stand upon, answer just a few questions honestly. Please.

Would you risk letting a cop killer run free? Would you be willing to face the family of the slain officer after the trial and tell them that you were pretty sure the defendant was guilty, but the state didn't quite prove it to you beyond a reasonable doubt.

How about a rapist? Would you turn lose a possible rapist to possibly rape again?

How about a child molester? I've had to deal with accused child molesters. Would you return a possible child molester back into society? We all know they that they can't control themselves, that they will destroy the lives of more innocent children if we do not stop them. Would you turn such a person lose if you were concerned he was guilty but believed the state hadn't quite proved its case beyond a reasonable doubt?

How about a baby killer? Would you turn lose a baby killer if you were only almost certain of his guilt? I've had to deal with an accused baby killer as well. I'm dealing with the case now, in fact.

So I ask you. Would you stand by your oath and vote guilty if and only if the State proved its case beyond a reasonable doubt?

I might. I might indeed stand by my oath, and the thought haunts me. I would be livid that the State had put me in such a position, that they would convince me the defendant was probably guilty but did not prove it beyond a reasonable doubt. I would be furious. They would have put me in a position of either defiling the Bill of Rights or allowing a potentially dangerous person to walk free. Would I try to live with the possibility that my Guilty vote would put a possibly innocent person behind bars for eternity, or would I live forever in fear that my Not Guilty vote would lead to terrible harm of yet another innocent bystander? Which would it be?

Here's what I hope I would have the courage to do. I hope I would stand by my oath. I  hope I would stand by the Bill of Rights and accept the consequences, whatever they might be. If the State could not, or carelessly failed to meet its burden of proving guilt beyond a reasonable doubt, I would not bail them out. They could tell me they speak for the victim, and they could tell me that the family of the victim deserves the justice that only I can bring them, but I hope I would not waver.

Beware prosecutors everywhere. If you allow me on the jury, I will follow my oath. I will stand by the Constitution of the United States and its Bill of Rights. Far too much blood has been spilled to create and defend those rights. Far too many innocent people are in prison today because my fellow jurors failed to respect and honor them.

Let's do this. Put yourself in the place of one of those jurors deliberating the evidence in the Troy Davis case. You have four eye-witnesses identifying Davis in court as the shooter. You have two additional witnesses saying they saw Davis wearing a white T-shirt around the time of the shooting, and two more saying they saw Coles wearing a yellow shirt. You have three other witnesses testifying under oath that Davis confessed to them. You are told repeatedly that none of these people have any reason to lie to you.

Against that, you have Davis and his mother saying he did not wear a white T-shirt that night.

How are you going to vote?

Honestly, how are you going to vote?

Would you vote Not Guilty simply because one of your fellow jurors wouldn't shut up about Coles and his sister not being able to count shirts, because he goes ballistic when you mention the snitch, or because he actually believes four people could all coincidentally pick the same wrong guy out of photo lineups?

When I was younger, I would have probably voted with most of you out there. I'm no longer younger, though. I've been through four criminal juries. I've reviewed many cases. I've worked directly to free innocent people from prison and to keep innocent people from being imprisoned. I've seen too often how the system goes awry, how it hides its dark side from the jury, how it convicts and consumes while wrapping itself in righteousness.

Now that I'm no longer younger, the snitch and the suborned perjury and the miraculous late stage identifications tell me there is much more going on in the background that the State doesn't want us jurors to know. Now that I'm no longer younger, I'll call them on it. I'll vote Not Guilty if I catch them not playing by the rules.

I realize the State is being inconsistent. It is there their [told you I was tired] privilege. They have the ultimate power, but only if we jurors relinquish it to them.

Dorothy Ferrell
Let's consider first the trial testimony of Dorothy Ferrell. I have not spoken of her before. I saved her for now. She was descending the stairs of the Thunderbird Inn when the shooting took place. According to Judge Moore, here's what she testified to in court.
Ms. Ferrell testified at the trial that, on the night of August 18, 1989, she was a guest at the Thunderbird Motel, located across Oglethorpe Avenue from the Burger King. Around 1:00 a.m. on August 19, 1989, she was descending a stairwell at the motel when she heard screaming from the Burger King parking lot. She ran to the sidewalk to get a better view.

From the sidewalk, she saw three men in the Burger King parking lot. As one of the men started running toward the Trust Company Bank property, a police officer entered the parking lot and told the men to stop. As the officer approached, one of the men, who was wearing a light yellow t-shirt, started moving backwards.  Then the third man, who was wearing a white t-shirt and dark shorts, shot the officer. After the officer fell to the ground, the gunman stepped forward, stood over the officer, and fired more bullets at him. 

Finished, the gunman ran toward the Trust Company Bank. At trial, Ms. Ferrell identified Mr. Davis as the individual who shot the officer. Ms. Ferrell also testified that, two days after the shooting, she recognized a photograph of Mr. Davis and identified him as the gunman. According to Ms. Ferrell, she was speaking with a police officer about matters unrelated to the MacPhail shooting when she noticed a photograph of Mr. Davis on the front passenger seat of the officer's cruiser. She informed the officer that she recognized the man in the photograph as Officer MacPhail's murderer. Ms. Ferrell had not seen any pictures of Mr. Davis prior to that identification. A few days later, Ms. Ferrell was shown a photo spread and asked if she recognized the gunman. Ms. Ferrell again identified Mr. Davis. Ms. Ferrell testified that she was pretty confident in the accuracy of her identification.

On cross-examination, Ms. Ferrell testified that the individual in the yellow t-shirt was looking straight at the gunman when he fired the first shot. Ms. Ferrell stated that the gunman passed in front of the Trust Company Bank building while fleeing. She was then impeached with her police statement, in which she claimed that the gunman ran behind the Trust Company bank building.

Ms. Ferrell was also questioned on variations between her police statement and trial testimony regarding when the individuals in the yellow and white t-shirts started running. Finally, Ms. Ferrell admitted that the portion of her police statement recounting how Officer MacPhail had run the shooter off the Burger King property earlier in the day was incorrect. She explained that she had not seen Officer MacPhail run the shooter off the property, only some individuals dressed like the shooter. Ms. Ferrell opined that the inconsistency was due to a misunderstanding by the officer taking her statement. 

Also on cross-examination, Ms. Ferrell was challenged regarding her prior descriptions of the shooter. In her police statement, Ms. Ferrell recalled that the shooter was six feet tall with a narrow face and slender build, while she described the shooter as slightly taller than her height—five feet—and with a medium build when she testified in Recorder's Court. In Recorder's Court, Ms. Ferrell testified that the shooter had lighter colored skin than her. However, Ms. Ferrell admitted that she and Mr. Davis had about the same skin color, while Mr. Coles' skin color was much lighter that hers. Ms. Ferrell did state that she would not describe Mr. Coles' skin color as light, but rather as "red." Also, Ms. Ferrell admitted that, despite testifying in Recorder's Court that the shooter had a narrow face, she never saw the shooter face-on, seeing only his left and right profiles. Finally, Ms. Ferrell testified that she saw Mr. Davis on television prior to her identification of his photograph.

On redirect-examination, Ms. Ferrell explained a few of the inconsistencies between her various statements. Ms. Ferrell clarified that, in Recorder's Court, she stated the shooter was a little taller than Mr. Davis attorney, not a little taller than herself. Also, Ms. Ferrell explained that she did not see only left and right profiles of the gunman's face. While she never observed his face straight on, Ms. Ferrell saw enough of the shooter's face at various angles to recognize that he had a narrow face.

Ms. Ferrell also admitted during cross-examination that she had a number of prior criminal convictions for shoplifting and trespass.
Now let's consider her recantation affidavit, as presented by Amnesty International.
At the trial, Dorothy Ferrell, who was staying at a hotel near the Burger King at the time of the crime, identified Troy Davis as the person who had shot Officer McPhail, emphasizing "I’m real sure, that that is him and, you know, it’s not a mistaken identity".

After the guilt/innocence phase of the trial had ended, the wife of Troy Davis’ defence lawyer received a telephone call from a woman who identified herself as Dorothy Ferrell, and stated that she had lied on the witness stand. The prosecution then revealed that Dorothy Ferrell had written a letter to District Attorney Spencer Lawton requesting "a favor" and his "help" with her own difficulties with the law. She was on parole at the time. She wrote in the letter: "Mr. Lawton if you would please help me, I promise you, you won’t be making a mistake."

After this revelation, Dorothy Ferrell was recalled to the witness stand, outside of the presence of the jury. She denied having made the telephone call, but admitted to having written the letter. The judge then offered the defence the opportunity to cross-examine Dorothy Ferrell in the presence of the jury, but they did not do so, instead calling for a mistrial on the grounds that the prosecution had withheld information from the defence. The trial judge denied their motion for a new trial.

In her affidavit signed in November 2000, Dorothy Ferrell recalled that she had been staying in a hotel opposite the Burger King restaurant on the night of the shooting. She said that she heard a woman scream and gunshots. In her affidavit, she recalls seeing "more than two guys running away", but states that she did not see who the gunman was. After the crime, she was asked to go down to the police station, where she was made to wait until she gave a statement. The affidavit continues:
"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 thought that would be the end of it, but it turned out not to be the end."
Sometime later, a police detective visited Dorothy Ferrell and showed her a photograph of Troy Davis, and told her that other witnesses had identified him as the gunman:
"From the way the officer was talking, he gave me the impression that I should say that Troy Davis was the one who shot the officer like the other witness [sic] had… I felt like I was just following the rest of the witnesses. I also felt like I had to cooperate with the officer because of my being on parole…I told the detective that Troy Davis was the shooter, even though the truth was that I didn’t see who shot the officer."
In her affidavit, Dorothy Ferrell recalls her fear that if she did not repeat her statement at the trial, she would be charged with perjury and "sent back to jail". She says that she spoke to two lawyers who said that she could be so charged and could be sentenced to up to 10 years in prison.
"I had four children at that time, and I was taking care of them myself. I couldn’t go back to jail. I felt like 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."
On the question of the telephone call made to Troy Davis’ defence counsel at the time of the trial, Dorothy Ferrell’s affidavit adds that:
"I didn’t make that call to the house of the attorney but my friend made the call after she and I had talked. I told my friend about how I had testified to things that weren’t the truth and I was feeling bad about it. That’s why she made the call."
Darrell Collins
Darrell Collins was the third of three individuals who followed Larry Young back from the convenience stores. I did not speak of him before because it seems clear that he did not harass or assault Larry Young or shoot Officer MacPhail. I held him back, and I discuss his courtroom testimony now, as I understand it from Judge Moore's decision.
Darrell Collins was the third individual involved in the altercation with Larry Young. At trial, he testified that Mr. Davis was wearing the white shirt and assaulted Larry Young. According to Mr. Davis, Darrell Collins has since recanted the latter portion of that testimony, which was originally secured through police coercion.  In statements that Mr. Collins gave to the police in the days following the shootings, he stated that Mr. Davis was responsible for the Cloverdale shooting, struck Larry Young on the head, and wore a white shirt on the night of the incidents.

At the trial, Mr. Collins reaffirmed that Mr. Davis was wearing the white shirt and assaulted Mr. Young. However, Mr. Collins testified that he lied about Mr. Davis' involvement in the Cloverdale shooting due to police intimidation.  In his recantation affidavit, Mr. Collins claimed a second lie -- that he never saw Mr. Davis strike Larry Young. He averred that he was comfortable revealing the first lie at trial but not the second because he felt the police cared more about whether Mr. Davis assaulted Mr. Young than Mr. Davis' responsibility for the Cloverdale shooting. At the hearing, Mr. Collins again claimed that he lied about both the assault on Larry Young and the Cloverdale incident due to police coercion. Specifically, he claims that he simply parroted what the police told him to say. However, he did not recant his earlier testimony that Mr. Davis was wearing the white shirt on the night of the shootings.

Mr. Collins testimony is neither credible nor a full recantation. First, regardless of the recantation, Mr. Collins' previous testimony, that has never been unequivocally recanted, still provides significant evidence of Mr. Davis' guilt by placing him in the white shirt.

Second, if Mr. Collins' claim that he simply parroted false statements fed to him by police is truthful, query why Mr. Collins never directly identified Mr. Davis as Officer MacPhail's murderer. Surely, this would have been the best available false testimony, and given Mr. Collins' proximity to the murder it would have been as reasonable as any other false testimony.

Third, there was credible testimony from Officer Sweeney and Mr. Lock that Mr. Collins' testimony was not coerced.

Fourth, Mr. Collins generally lacked credibility, testifying to an implausible version of events: that he was less than ten feet from Larry Young when the assault occurred and did not turn away from the confrontation until Officer MacPhail arrived, but saw nothing. Given the close proximity, it would be safe to assume that surely Mr. Collins saw either Mr. Coles or Mr. Davis strike Mr. Young -- not that Mr. Coles simply saw nothing.

Because Mr. Collins continues to provide evidence of Mr. Davis' guilt and his recantation is not credible, his testimony does not diminish the State's case.
Judge Moore does not include in his decision verbatim text from the recantation affidavits. As a public service, I will present some verbatim text from Darrell Collins' affidavit, as provided by Amnesty International.
Darrell Collins was a friend of Troy Davis who was with him on the night of the crime. At the time, he was 16 years old. In his affidavit he said that the day after the shooting, 15 or 20 police officers came to his house, "a lot of them had their guns drawn". They took him in for questioning, and the affidavit continues:
"When I got to the barracks, the police put me in a small room and some detectives came in and started yelling at me, telling me that I knew that Troy Davis…killed that officer by the Burger King. I told them that… I didn’t see Troy do nothing. They got real mad when I said this and started getting in my face. They were telling me that I was an accessory to murder and that I would pay like Troy was gonna pay if I didn’t tell them what they wanted to hear.

They told me that I would go to jail for a long time and I would be lucky if I ever got out, especially because a police officer got killed… I didn’t want to go to jail because I didn’t do nothing wrong. I was only sixteen and was so scared of going to jail. They kept saying that…[Troy] had messed with that man up at Burger King and killed that officer. I told them that it was Red and not Troy who was messing with that man, but they didn’t want to hear that…

After a couple of hours of the detectives yelling at me and threatening me, I finally broke down and told them what they wanted to hear. They would tell me things that they said had happened and I would repeat whatever they said."
Darrell Collins said that he signed a typed statement without reading it, and was then allowed to go home. According to his affidavit, he was questioned again about a week later by the police who gave him another typed statement to sign. He said he again signed the statement without reading it. The affidavit continues:
"I testified against Troy at his trial. I remember that I told the jury that Troy hit the man that Red was arguing with. That is not true. I never saw Troy do anything to the man. I said this at the trial because I was still scared that the police would throw me in jail for being an accessory to murder if I told the truth about what happened…

It is time that I told the truth about what happened that night, and what is written here is the truth. I am not proud for lying at Troy’s trial, but the police had me so messed up that I felt that’s all I could do or else I would go to jail."
Kevin McQueen
I'm going to wrap up this series up with the snitch, Kevin McQueen. Let's see what Judge Moore had to say about good ol' Kevin McQueen's testimony and recantation.
Kevin McQueen was the "jail house snitch." At trial, his testimony was used to relate Mr. Davis' confession to the MacPhail murder. Mr. Davis contends that Mr. McQueen admits his prior testimony was a "complete fabrication."

At trial, Mr. McQueen claimed that Mr. Davis confessed the following events to him. Mr. Davis began his night by shooting at the group from Yamacraw -- the Cloverdale shooting. Mr. Davis then went to his girlfriend's house for a time, and later to the Burger King to eat breakfast. While at Burger King, Mr. Davis ran into someone who "owed [him] money to buy dope." There was a fight regarding the drug money, and when Officer MacPhail came over, Mr. Davis shot him.

At the hearing before this Court, Mr. McQueen testified that there was "no truth" to his trial testimony. He claimed that he fabricated the testimony to get revenge on Mr. Davis for an altercation in the jail and because he received benefits from the State. Mr. McQueen put the same recantation into an affidavit on December 5, 1996, but stated his only reason for testifying falsely was the altercation between he and Mr. Davis. Other than claiming that Mr. Davis was guilty of both the MacPhail murder and Cloverdale shooting, Mr. McQueen's trial testimony totally contradicts the events of the night as described by numerous other State witnesses. Indeed, while other witnesses described a fight over alcohol, Mr. McQueen described a fight over drugs; and while other witnesses claimed Mr. Davis went to shoot pool immediately prior to the murder, Mr. McQueen claimed Mr. Davis went to get breakfast. These inconsistencies make it clear that Mr. McQueen's trial testimony was false, a fact confirmed by Mr. McQueen's recantation. Given that Mr. McQueen's trial testimony was so clearly fabricated, and was actually contrary to the State's theory of the case, it is unclear why the State persists in trying to support its veracity. Regardless, the recantation is credible, with the exception of the allegation of prosecutorial inducements, but only minimally reduces the State's showing at trial given the obviously false nature of the trial testimony.
I believe that says it all. I'm finally ready to take a position on the impending execution of Troy Anthony Davis.

I oppose it.