By Ariel Xue, J.D. Candidate

On Wednesday September 21, 2011 at 11:08 p.m. EST, Troy Anthony Davis was executed by lethal injection in Jackson, Georgia against the vehement protests of individuals around the world moved by Davis’s 22-year-long battle to prove his innocence. Davis died four hours after his originally scheduled time, in which time the Supreme Court reviewed but ultimately denied a final petition by Davis’ lawyers to stay his execution. Contrary to public opinion casting Davis’ case as an example of the racially discriminatory and arbitrary application of the death penalty in the United States, Davis was actually afforded the full range of possible review by state and federal courts short of review by the Supreme Court, in addition to having had his case reviewed by the Georgia State Board of Parson and Paroles.

The underlying facts of the Davis case, while certainly distressing, are not exceptional. On August 19, 1989, off-duty Savannah Police Department Officer Mark Allen MacPhail was shot multiple times in the parking lot of a Burger King restaurant while approaching an altercation taking place between three individuals and a homeless man. In 1992, Davis, one of the three individuals involved in the altercation, was found guilty of Officer MacPhail’s murder after a jury returned a unanimous verdict in a trial during which no constitutional defect was alleged. Maintaining his actual innocence, Davis pursued a long series of appeals and habeas corpus petitions in state and federal courts. All of Davis’s claims, in addition to his application for executive clemency to the Georgia State Board of Pardons and Paroles, were denied. Indeed, there is also nothing unusual about this sequence of events, which typifies the extended and often fruitless process that many prisoners pursue to seek their release. Why, then, has the Davis case risen to such infamy amongst the scores of death row cases in the United States?

On May 19, 2009, Davis filed a Petition for the Writ of Habeas Corpus directly with the Supreme Court, arguing that his pending execution would be unconstitutional under the Eighth and Fourteenth Amendments. Along with his petition, David included new evidence he had obtained and recantations from seven of the nine witnesses who testified in his trial. This is where Davis’s case takes a turn towards the exceptional. On August 17, 2009, in a move that Justice Scalia called an “extraordinary step . . . not taken in nearly 50 years,” with two Justices concurring and two dissenting, the Supreme Court transferred Davis’s petition to the District Court of the Southern District of Georgia and instructed it to “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis’] innocence.” In re Davis, 130 S. Ct. 1, 1–2 (2009).

On August 24, 2010, the Honorable William T. Moore of the District Court of the Southern District of Georgia issued an extensive 69-page opinion denying Davis’ petition. See generally In re Davis, No. CV409-130, 2010 WL 3385081 (S.D. Ga. Aug. 24, 2010) The court found that Davis’s innocence claim was cognizable and held that a “clear and convincing” burden of proof was applicable after undergoing a comprehensive analysis of the Supreme Court’s murky precedent on the cognizability of freestanding claims of actual innocence, the Court’s Eighth Amendment jurisprudence, and the growing trend among states of enacting legislative remedies for prisoners hoping to prove their innocence post-conviction. Id. at 37–46. After conducting an exhaustive review of pre-trial and trial evidence, in addition to post-trial evidence proffered by Davis in support of his claim of innocence, the court held that Davis failed to meet his burden of showing by “clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.” Id. at 46, 59. Specifically, the court concluded, after a balancing of all of the evidence on the record, that the “vast majority of evidence at trial remain[ed] intact,” finding that the recantations of witness testimony and new evidence presented by Davis were for the most part lacking in credibility or otherwise deficient of significant probative value, serving to cast additional, but minimal doubt on Davis’s conviction.  Id. at 61.

On its face, the thought that a man could still be executed after seven of nine witnesses at his trial have recanted their testimony is absurd; however, as the District Court emphasized, “not all recantations are created equal.” Id. at 54. Two of the recanting witnesses neither claimed that their previous trial testimony was coerced, nor that they lied at trial, and the recantations of two other witnesses were flatly contradicted by evidence at the hearing before the court. Id. Two further recantations were presented in affidavit form, “blocking any meaningful cross-examination by the state or credibility determination by [the] [c]ourt” and were also contradicted by live testimony. Id. The court deemed one additional witness recantation “credible,” but “of limited value” due to the witness’s “patently false” testimony at trial, which contradicted basic facts regarding the night of the shooting as established by the State. Id. Ultimately, the court summarized, “four of Mr. Davis’ recantations do not diminish the State’s case because a reasonable juror would disregard the recantation, not the earlier testimony[] and the three others only minimally diminish the State’s case.” Id.

In addition to the recantations, Davis also presented new evidence to the court to prove his innocence, including hearsay confessions by an accomplice, statements regarding the accomplice’s nervous conduct subsequent to the shooting, alternative eye-witness accounts, and new evidence regarding the physical evidence in the case. With regard to the hearsay confessions, the court noted that while hearsay evidence may “tip the balance in an otherwise close case, they will rarely, if ever, form the crux of a showing of actual innocence.” Id. at 55. As to the rest of the evidence presented, the court pointed to the limited probative value of any inferences that could be drawn from an individual’s nervous conduct in general and “new” eyewitness testimony brought to light almost twenty years after the fact, in addition to the lack of relevancy of the physical evidence provided. Id. at 55–58.

In light of the district court’s well-reasoned opinion and the Supreme Court’s implicit approval of the opinion’s outcome based on its denial of Davis’s final motion to stay, the question that remains is why the courts’ and the Georgia Parole Board’s decisions not to step in to stop Davis’ execution are controversial after all. There is a lot to be said, in terms of controversy, for the fact that the Supreme Court has not yet expressly ruled on the critical issues of the cognizability of free-standing claims of actual innocence, the burden of proof for an individual asserting such a claim, and any effect of the deferential AEDPA standard on such a burden. However, these are not the controversies in the Davis case that the public has honed in on.

Instead, the public seems shocked by the possibility that the criminal justice system operates with less than 100% certainty before condemning a man to die. It seems immoral to not expend all of the necessary resources and time to “get it right.” The fact remains however, that for all of the outrage that has been expressed over Davis’s execution, many states are still unwilling to abolish the death penalty, with all of its weighty imperfections. Indeed, our justice system still lacks a viable means of implementing the death penalty without shocking our individual and collective consciences sometimes. Potential solutions that the public may demand are a lower standard of proof for a legally convicted individual to prove his or her innocence or increased state sponsored access to skilled counsel during the initial stages of criminal trials, solutions that history and experience indicate are determinative of outcomes for criminal defendants. However, most people would recoil at the idea of lowering the standards by which dangerous criminals may re-enter society or of dedicating limited state resources to defending those accused of the worst and most grisly crimes. It seems that as much as we dislike seeing a potentially innocent man die, we are also most likely unwilling to pay the costs of fixing a system that perpetuates such results. Perhaps it is this cognitive dissonance that makes Troy Davis’s case so gut-wrenching.