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.