Troy Davis was not innocent...

Get comfortable because this will likely take a while...

The world was in uproar this past week about the state of Georgia executing a man who had 20+ years to go through what is called "due process" in order to avoid such a fate. Why? Because the presumption was that he was innocent. After all around 9 state witnesses recanted their testimony! It's the state of Georgia where racism runs rampant! Mr. Davis was an Black man from a poor neighborhood--no way was justice equally applied to him!

First, everything happens for a reason. Mr. Davis' case gave us a definitive answer, once and for all, that it is unconstitutional to execute an innocent person in the United States. Perhaps it doesn't make sense that it wasn't unconstitutional before--the thinking before was that it is always better to find the wrong person guilty than to let the guilty one go free--but now it is definitely unconstitutional to execute an innocent person.

We also finally have a way to determine what "innocence" is. It is the burden of the person claiming they are innocent to prove they are (contrast that to the presumption of innocence at the beginning of trial, where it is the state's burden to prove the defendant is guilty). Innocence is not "not guilty." "Not guilty" means the prosecution could not and did not prove beyond a reasonable doubt that the defendant did what is alleged. "Innocence" means matter of factly the defendant simply did not do what was alleged. For example, someone could be not guilty of DUI if the prosecution can't prove that the defendant was ever behind the wheel. The person could be drunker than a sailor on shore leave, but if there is no proof he or she was behind the wheel, they cannot be found guilty of DUI beyond a reasonable doubt. Contrast to someone who is arrested and charged with DUI and has no trace of alcohol or drugs in their system because they never drank or ingested drugs. Perhaps they just exhibited symptoms of impairment for other reasons. That person is innocent.

In Mr. Davis' case, he had the burden of proving that a reasonable juror would not convict him based on the new evidence he had that was not available at trial. If no reasonable juror could possibly convict him, that means he is innocent. He was given an opportunity to have an evidentiary hearing at the federal level (unheard of since federal courts are supposed to give deference to the findings the state courts make in state cases, which Mr. Davis' case was). His evidence? Affidavits of witnesses "recanting." For the record, a "recantation" is a statement in complete reversal of what was originally said. For instance instead of saying "the light was red," one would need to state "the light was NOT red." In Mr. Davis' case, 4 of the "recantations" were not "recantations" at all--they simply changed their story. Oh and blamed it on coercion by the police (more on that shortly). So instead of saying that Mr. Davis DID NOT shoot Officer McPhail, these witnesses simply stated they did not see who did, and that the only reason they said it was Mr. Davis was because the police told them to.

This was a key mistake by Mr. Davis' attorney's. Instead of going for the highest standard possible in innocence cases (clear and convincing evidence of a lack of culpability or guilt, or a mathematical certainty of innocence) they shot for reasonable doubt (which he'd already been convicted under 20 years ago). There was admittedly reasonable doubt from the beginning (the judge who issued the ruling after the habeas corpus hearing even said as much), but the state was able to convince 12 jurors (7 of whom were Black) that there was no doubt that Mr. Davis not only murdered Officer McPhail but that he did so intentionally.

Now about those coercions. Coerced testimony would certainly not have left as murky a picture as Mr. Davis' case. Indeed of the witnesses who claimed they were coerced none of them directly identified Mr. Davis as Mr. McPhail's killer save one--and by the time the habeas corpus hearing rolled around in 2010 she was deceased. Her recantation was not notarized and from what I could tell from the judicial order, was not given as a statement--it was presented to her by Mr. Davis' attorneys and she was asked to sign it. The others testimony--if it was so coerced--left enough to be desired that the state had to call over 30 total witnesses at trial. Why coerce 7-10 people? Why not coerce one good one that can put Mr. Davis at the scene? (The others stated that Mr. Davis was wearing a white shirt, and that the man in the white shirt shot the police officer--but no one ever said Mr. Davis shot the officer. It was left for the jurors to infer).

Failure number two by Mr. Davis' legal team was putting only the people Mr. Davis knew on the stand during his evidentiary hearing. In other words, he had two witnesses who "recanted" both of which were ready and able to testify--yet were not called. (Even Mr. Coles, the other person present that night and allegedly was the "real" killer was not put on the stand). Only their affidavits were presented. Affidavits cannot be challenged and as a result they aren't given much weight in court. People he knows however are easily discredited as biased. Why not call the woman who supposedly saw the whole thing from across the street who Mr. Davis didn't know? If she was willing to recant her statement (she changed it from "Mr. Davis was the one wearing the white shirt" and "The man in the white shirt shot the officer" to "I did not see Mr. Davis shoot the officer"), then why not put her on the stand to be challenged? If anyone could have swung the evidence in Mr. Davis' favor it was this woman. Instead she sat on the bench--literally outside the courtroom.

It should be noted that Mr. Davis is not dead today because of some imbalance in due process toward people of color. Surely people of color represent a disproportionate amount of inmates generally and death row specifically. This likely has a lot to do with socio economic circumstances--but the bottom line is if you're doing dumb shit and get caught you're going to jail. Regardless if Mr. Davis shot Officer McPhail or not, he was going to jail for a long time for felony murder anyway--he was a party to the felony that led to the killing of someone. The crime can be imputed to him since he was a participant. The death penalty is reserved for the most culpable killers and Mr. Davis was determined to be the one most culpable in the killing of Officer McPhail. End of story.