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.

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.

Therefore:

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.

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.

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.

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.