“This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually' innocent.”
—U.S. Supreme Court Justice Antonin Scalia, Aug. 17, 2009
Late one night in 1989, either Troy Davis or Sylvester Coles shot and killed Mark MacPhail, an off-duty cop trying to break up a fight in a Savannah, Ga., Burger King parking lot. Davis was arrested, tried, convicted and sentenced to death; Coles was a key witness against him. For 20 years Davis has maintained his innocence and lost several appeals while sitting on death row.
Now, after public attention to the case and pleas from the likes of Jimmy Carter, Al Sharpton, Archbishop Desmond Tutu and Pope Benedict XVI, no less, the Supreme Court, in an extremely rare move, last week ordered a federal judge to hear new evidence in the case.
Quoted above is Scalia's dissenting opinion in the ruling. He was joined by Clarence Thomas. The majority opinion, written by John Paul Stevens and signed by Ruth Bader Ginsburg and Stephen Breyer, argued that “the substantial risk of putting an innocent man to death clearly provides an adequate justification” for hearing the new evidence. Anthony Kennedy, Samuel Alito and John Roberts surprisingly sided with the majority, while Sonia Sotomayor didn't join the court for the decision.
Scalia put “actually” in quotes for a reason. He's phenomenally suspicious of habeas rulings—ironic, to say the least, given that the Supreme Court argued in 1999, the same year Davis was convicted, that habeas is “the fundamental instrument for safeguarding individual freedom against... lawless state action.”
And just because the court has never held something before doesn't make it constitutional. It seems to me that if you're convicted but later found innocent by a federal court based on new evidence, execution in that case would be the very definition of “cruel and unusual punishment.”
But there's really no sense in trying to rip out Scalia's callous heart and examine it for evidence of empathy. According to the law of positive thinking, a second Obama appointee is likely, further shifting of the court to the center.
So, who killed Mark MacPhail?
First let's look at the evidence against Davis. According to most reports, typified by a CNN story by Rusty Domin from last September, “There was no physical evidence presented at his trial, and no weapon was found.“Davis was convicted,” Domin points out, “largely on the testimony of nine witnesses.”
But what is “largely”? Why don't mainstream articles discuss the circumstantial evidence that helped convince the jury of Davis' guilt? Seven of the nine witnesses have recanted their testimony, making the additional evidence that implicated Davis more important than ever to consider.
It may be true, as Davis' sister argues, that “when you only have eyewitness testimony and you have no physical evidence, people have fallacies and people make mistakes,” but the qualification in the CNN story is not accidental. It was testimony that convicted Davis, but not testimony alone.
The most damning argument against Davis came from Chatham County District Attorney Spencer Lawton Jr., a prosecutor in the case, who likes to copy and paste his argument against Davis in the comments section of blog posts and editorials to “set the record straight.”
He argues the following points:
• The bullets that killed MacPhail came from the .38 that was also used to shoot a man named Michael Cooper, and Davis was convicted of shooting Cooper.• At the trial, all of the witnesses who testified against Davis said they had not been coerced.• The high number of recanting witnesses seems so hard to believe that it must be a coincidence.• Davis' case had been reviewed several times, and his appeals were always denied, suggesting that he is guilty.Convinced? I'm not.
First, just because Davis was convicted of shooting Cooper doesn't mean he did it; according to the NAACP, both Coles and Davis were near the party. One passenger in the car with Cooper thought Coles, and not Davis, shot at the car.Also, Coles initially denied having a .38-caliber gun, the type that was used in the shooting, but later admitted he had one but ditched it before confronting and harassing a homeless man in the Burger King parking lot, which led to MacPhail intervening (Davis says he tried to intervene on behalf of the man being harassed by Coles). Coles was the initial suspect in the case until he fingered Davis.
Seven of the nine witnesses have claimed that they were coerced by police to identify Davis as the killer. Maybe they didn't say so at the trial because they were coerced not to. Isn't it just as likely that they were lying initially rather than subsequently?
And if Lawton is so positive of Davis' guilt, shouldn't he welcome a retrial?
One last point: One of the eyewitnesses couldn't identify the killer but was positive the gun was fired from the shooter's left hand. Troy Davis is right-handed. I haven't been able to find out if Sylvester Coles is left-handed. It would be interesting to know. Hopefully it will be one of the questions addressed in a fair trial.
Would you like to your online comment to be considered for publication in our print edition? Include your true full name and neighborhood of residence.