By Peter Whoriskey
Washington Post Staff Writer
Monday, July 16, 2007
SAVANNAH, Ga. -- A Georgia man is scheduled to be executed by lethal injection on Tuesday for killing a police officer in 1989, even though the case against him has withered in recent years as most of the key witnesses at his trial have recanted and in some cases said they lied under pressure from police.
Prosecutors discount the significance of the recantations and argue that it is too late to present such evidence. But supporters of Troy Davis, 38, and some legal scholars say the case illustrates the dangers wrought by decades of Supreme Court decisions and new laws that have rendered the courts less likely to overturn a death sentence.
Three of four witnesses who testified at trial that Davis shot the officer have signed statements contradicting their identification of the gunman. Two other witnesses -- a fellow inmate and a neighborhood acquaintance who told police that Davis had confessed to the shooting -- have said they made it up.
Other witnesses point the finger not at Davis but at another man. Yet none has testified during his appeals because federal courts barred their testimony.
"It's getting scary," Davis said by phone last week. "They don't want to hear the new facts."
The circumstances of the case have provoked criticism beyond the usual groups that oppose the death penalty.
"There is no more serious violent crime than the murder of an off-duty police officer who was putting his life on the line to protect innocent bystanders," William S. Sessions, FBI director under presidents Ronald Reagan and George H.W. Bush, wrote recently in an op-ed piece in the Atlanta Journal-Constitution. But "serious questions have been raised about Davis's guilt. . . . It would be intolerable to execute an innocent man."
At the heart of Davis's difficulties is a law passed by Congress and signed by President Bill Clinton in the wake of the Oklahoma City bombing -- the Antiterrorism and Effective Death Penalty Act of 1996.
The legislation was aimed at bomber Timothy J. McVeigh but has had far broader consequences: It limits the reasons for which federal courts can overturn death penalty convictions. In Davis's case, it has helped block the exploration of witnesses' statements that they had lied at trial.
Before the law, the federal courts intervened to provide "relief" to death row inmates -- that is, a new trial, new sentencing hearing or a commutation of the sentence to life imprisonment -- in about 45 percent of cases, though the rate was declining. But between 2000 and 2007, federal courts intervened to provide such relief to the death row inmate in about 10 percent of cases, according to a forthcoming study.
"People might say the law makes the system more efficient. But we have significantly increased the likelihood of executing someone who is actually innocent," said David R. Dow, a University of Houston law professor who co-authored the study with Eric M. Freedman of Hofstra University.
The second of five children, Troy Anthony Davis grew up with his parents and siblings in Cloverdale, a black, middle-class subdivision in Savannah.
By Aug. 19, 1989, when the shooting occurred, Davis had finished high school and had taken a physical to join the Marines. At 20, he was living at home and working for a fence company.
He had once pleaded guilty to a concealed-weapons charge after a traffic stop, but he told the judge a passenger had stowed the gun under the car seat. Davis received a $250 fine. His record was otherwise clean.
The Burger King where the shooting happened is next to a Greyhound bus station, on a ragged edge of this city's touristy historic district. As the restaurant was closing at 1 a.m., a fight over a beer was erupting in the parking lot between a homeless man named Larry Young and another man who, some witnesses said, threatened to shoot him.
After the man pistol-whipped Young, a police officer doing an off-duty shift in uniform as a security guard came out. The officer told the man to halt, witnesses said. Before Officer Mark A. MacPhail could unholster his gun, the man shot him once in the chest, then once in the face.
Lacking a gun or other physical evidence, police were forced to rely on witness accounts to determine the shooter.
Davis and a friend were at the Burger King that night; so were several others. After the shots were fired, they scattered.
In the hours after the shooting, several people at the scene told police that it was too dark, or that it happened too quickly, to know who was who.
But the day after the shooting, a person at the parking lot that night, Sylvester "Red" Coles, came to the police with a lawyer. Some witnesses would later say that Coles was the shooter. But in his meeting with police, Coles implicated Davis.
A manhunt for Davis began. He turned himself in to the police four days later.
At the same time, police were working the streets, asking anyone who might have been there, or who knew Davis, to talk.
"The police came over here four or five times," said Jeffrey Sapp, 38, a neighborhood acquaintance of Davis. "They said, 'You know, your friend is on the run, so he must be guilty.' They said, 'If you don't talk, we can take you to jail for withholding evidence.' "
Sapp eventually told them that Davis had bicycled by his house and confessed to shooting MacPhail.
"It was a lie," Sapp said.
Other key witnesses have told a similar story -- that police prodded them to implicate Davis. The affidavit from Darrell Collins, the friend who was with Davis that night, was typical.
"I told them it was Red and not Troy who was messing with that man, but they didn't want to hear that," Collins, who was 16 at the time, said in his 2002 statement. "The detectives told me, 'Fine, have it your way. Kiss your life goodbye because you're going to jail.' 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."
Adding to the confusion, the Georgia attorney general's office, which later looked into the case, portrays Coles as threatening to shoot the homeless man; the district attorney who tried the case has repeatedly said that Davis made the threat.
In late August 1991, a jury convicted Davis in the slaying. He was sentenced to death.
Davis and his family struggled to find lawyers who would pay attention to his appeal. At a key time in his appeal, the Georgia Resource Center, which was representing Davis, underwent a 70 percent budget cut.
"We were getting a lot of law students," Martina Correia, Davis's sister, said.
She eventually found a pro bono lawyer from Arnold & Porter, a well-known firm, on Court TV. But by the time the lawyer took on the case, tracked down witnesses and got depositions recanting some of their original testimony, the courts said it was too late to press the appeal. Indeed, the fact that the new evidence is being presented so late is used to dismiss his attempts to introduce the testimony, his pro bono lawyer, Jason Ewart, said.
Prosecutors have dismissed the significance of the new testimony.
"A recantation . . . does not prove that the witness' testimony was in every part the purest fabrication," Chief Assistant District Attorney David T. Lock wrote in legal papers filed last week.
Yet a sense that procedure, rather than the question of innocence, has driven the case has led Georgia Rep. Hank Johnson (D) to explore changes in the law that would allow appeals courts to more readily review such cases.
None of the new rules seems likely to help Davis before Tuesday, however.
"I just think they made a mistake in the investigation," Davis said by phone last week. "I'm just trying to hold up. . . . I'm trying to maintain my faith that God will step in and soften the judge's heart."