[Deathpenalty] death penalty news----TEXAS, N. MEX., GA.

[Rick Halperin]

Feb. 13


TEXAS:

"Dead Man Walking" Author In Central Texas Tuesday


Death penalty opponent Sister Helen Prejean, the author of "Dead Man
Walking," speaks Tuesday night in Waco as part of a s-day trip to Central
Texas.

Prejean will give 3 presentations on why the state should end the use of
the death penalty.

The 1st is from 7 p.m. until 9 p.m. Tuesday at St. Mary of the Assumption
Parish at 205 N. 14th Street in Waco

She'll also speak Wednesday at the University Catholic Center at 2010
University Avenue in Austin and at San Jos Parish at 2435 Oak Crest Avenue
in Austin.


(source: KWTX News)






NEW MEXICO:

NM House passes death penalty repeal


New Mexico would abolish the death penalty and replace it with a
life-without-parole sentence under a bill passed by the House.

Supporters of the repeal, which passed Monday on 41-28 vote, have an
uphill struggle. The measure goes next to the Senate, where similar
legislation died 2 years ago.

And Gov. Bill Richardson - who would get the bill if it were to pass the
Senate - never has been in favor of doing away with capital punishment.

"We have our work cut out for us," said Rep. Gail Chasey, D-Albuquerque,
who has sponsored repeal legislation unsuccessfully several times.

New Mexico is 1 of 38 states with a death penalty. The method is lethal
injection, which Chasey noted is under challenge in some states.

Supporters of abolishing the death penalty say it is not a deterrent to
murder, is unjustly administered -"There are no rich people on death row,"
Chasey argued - and may result in the execution of innocent people.

Advocates for repeal also contend the $3 million a year they estimate New
Mexico spends on its capital punishment system could better be spent
helping victims' families.

But opponents countered that only one person has been put to death in New
Mexico in the last 47 years. Terry Clark's crime was heinous - he
kidnapped and murdered 9-year-old Dena Lynn Gore of Artesia in 1986 - and
he wanted to die, said Rep. Dan Foley, R-Roswell.

"The system in New Mexico works. ... We have been very cautious and very
careful," Foley said.

There are 2 men on death row in the state, convicted murderers Timothy
Allen of Bloomfield and Robert Fry of Farmington. Their sentences would
not be affected by the proposed repeal.

According to statistics compiled by repeal advocates, there have been 207
death penalty prosecutions in New Mexico since 1979. Of those, 28 death
sentences were imposed. 19 of those sentences were overturned; five were
commuted by then-Gov. Toney Anaya; 1 prisoner died on death row; 2 are on
death row; and Clark was executed.

In 2005, repeal legislation passed the House and went to the Senate, where
it died by a single vote in the Senate Judiciary Committee. It marked the
1st time a bill to abolish capital punishment had passed either house of
the Legislature.

Richardson, a candidate for the Democratic nomination for president in
2008, has refused to answer questions this year about his position on
death penalty legislation. He said he is focused on the items on his
legislative agenda.

Chasey said the governor continued to have "very cordial conversations"
with death penalty opponents.

"I think he's giving it some thought," she said.

The death penalty repeal is HB190.

On the Net:----New Mexico Legislature: www.legis.state.nm.us

(source: Associated Press)

******************

Death Penalty Can Be Sought


A district court judge ruled Monday the state could pursue the death
penalty  at least for now  in the case of a man accused of kidnapping and
killing an elderly Portales couple almost 2 years ago.

Prior to Mondays probable cause hearing, attorneys worked out an agreement
that allowed them to avoid testimony in the hearing. The defense conceded
the state could meet the burden of proof required for a death penalty
against Stanley Bedford if it proves allegations against him.

Bedford, 43, is charged with 2 counts of 1st-degree murder, 2 counts of
kidnapping, 2 counts of tampering with evidence and 1 count of receiving
stolen property in connection with the March 2005 deaths of Odis and Doris
Newman of Portales. Judge Stephen Quinn affirmed the agreement with the
attorneys and said the case would proceed as a death-penalty case.

However, defense attorney Gary Mitchell of Ruidoso informed the court he
would be filing another motion Monday to dismiss the death penalty. The
motion would attack the death penalty in a broad scope, he said. Mitchell
also said he would challenge it on the basis that Bedfords co-defendant in
the case, Jerry Fuller, recently received a life sentence following a plea
agreement.

Fuller, 34, was sentenced last month to a 127 years in prison.

A May 7 court date was scheduled to argue the next death-penalty motion.

There was also an off-the-record discussion Monday between Quinn and
attorneys on the logistics of taking the case on the road after a change
of venue for the trial was ordered late last year.

While Quinn checked on details of the venue change, the attorneys in the
case adjourned to an office where they worked out a jury questionnaire.

The trial is scheduled for an Albuquerque courtroom beginning May 21.

6 weeks has been blocked off to hear the case.

(source: Portales News-Tribune)






GEORGIA:

UNITED STATES OF AMERICA

'Where is the justice for me?'

The case of Troy Davis, facing execution in Georgia


I think this country would be much better off if we did not have capital
punishment I really think it's a very unfortunate part of our judicial
system and I would feel much, much better if more states would really
consider whether they think the benefits outweigh the very serious
potential injustice, because in these cases the emotions are very, very
high on both sides and to have stakes as high as you do in these cases,
there is a special potential for error.

US Supreme Court Justice John Paul Stevens(1)

Introduction

Troy Anthony Davis has been on death row in Georgia for more than 15 years
for the murder of a police officer he maintains he did not commit. Given
that all but three of the witnesses who testified against Troy Davis at
his trial have since recanted or contradicted their testimony amidst
allegations that some of it had been made under police duress, there are
serious and as yet unanswered questions surrounding the reliability of his
conviction and the states conduct in obtaining it. As the case currently
stands, the government's pursuit of the death penalty contravenes
international safeguards which prohibit the execution of anyone whose
guilt is not based on "clear and convincing evidence leaving no room for
an alternative explanation of the facts".(2)

Amnesty International does not know if Troy Davis is guilty or innocent of
the crime for which he is facing execution. As an abolitionist
organization, it opposes his death sentence either way. It nevertheless
believes that this is one in a long line of cases in the USA that should
give even ardent supporters of the death penalty pause for thought. For it
provides further evidence of the danger, inherent in the death penalty, of
irrevocable error. As the Chief Justice of the United States Supreme Court
wrote in 1993, "It is an unalterable fact that our judicial system, like
the human beings who administer it, is fallible."(3) Or as a US federal
judge said in 2006, "The assessment of the death penalty, however well
designed the system for doing so, remains a human endeavour with a
consequent risk of error that may not be remediable."(4)

The case of Troy Davis is a reminder of the legal hurdles that death row
inmates must overcome in the USA in order to obtain remedies in the appeal
courts. In this regard, Amnesty International fears that Troy Davis'
avenues for judicial relief have been all but closed off. In particular,
he is caught in a trap set by US Congress a decade ago when it withdrew
funding from post-conviction defender organizations in 1995 and passed the
Anti-terrorism and Effective Death Penalty Act in 1996.

This report outlines the case of Troy Davis. Executive clemency will be
his last hope if the courts prove unwilling or unable to provide a
meaningful remedy. Time is running out.

The inescapable risk of error

A legal regime relying on the death penalty will inevitably execute
innocent people  not too often, one hopes, but undoubtedly sometimes.
Mistakes will be made because it is simply not possible to do something
this difficult perfectly, all the time. Any honest proponent of capital
punishment must face this fact.(5)

30 years after the USA resumed executions, any notion that the US capital
justice system is free from error or inequity should by now have been
dispelled.(6) A landmark study published in 2000, for example, concluded
that US death sentences are "persistently and systematically fraught with
error".(7) The study revealed that appeal courts had found serious errors
those requiring a judicial remedy  in 68 % of cases. The most common
errors in US capital cases were "(1) egregiously incompetent defense
lawyers who didn't even look for - and demonstrably missed - important
evidence that the defendant was innocent or did not deserve to die; and
(2) police or prosecutors who did discover that kind of evidence but
suppressed it, again keeping it from the jury." The study expressed "grave
doubt" as to whether the courts catch all such error.

In Troy Davis' case, his appeal lawyers have argued that his trial counsel
failed to conduct an adequate investigation of the states evidence,
including allegations that some witnesses had been coerced by the police,
or to present full and effective witness testimony of their own (the
prosecution presented 30 witnesses in total, the defence presented 6).(8)
They have also claimed that the state presented perjured testimony as well
as evidence tainted by a police investigation which had used coercive
tactics, including against children taken into custody for questioning. As
shown below, alleged police coercion is a common theme that emerges from
the affidavits that various witnesses have provided since the trial when
recanting earlier statements.

Perhaps the starkest indicator of the fallibility of the US capital
justice system is the fact that since the US Supreme Court approved new
death penalty laws in 1976, more than 100 individuals have been released
from death rows around the country on grounds of innocence. The cases of
people like Anthony Porter  who came 48 hours from execution in 1998 after
more than 16 years on death row in Illinois before being proved innocent
by a group of journalism students who happened to study his case  stand as
an indictment of a flawed system. In April 2002 in Illinois, the 14-member
Commission appointed by the governor to examine that states capital
justice system in view of the number of wrongful convictions in capital
cases there, reported that it was "unanimous in the belief that no system,
given human nature and frailties, could ever be devised or constructed
that would work perfectly and guarantee absolutely that no innocent person
is ever again sentenced to death".

In similar vein, in January 2007, after a process in which it held five
public hearings and took evidence from a wide range of witnesses, a Death
Penalty Study Commission established by the New Jersey legislature
recommended abolition of the death penalty in that state. The Commission
had failed to find any compelling evidence that the death penalty served
any legitimate penological purpose, and it concluded that only abolition
could eliminate the risk of irreversible arbitrariness and error. New
Jersey Death Penalty Study Commission Report, January 2007.(9)

Yet still some maintain that exonerations of condemned inmates are a sign
of the system working. Among those who have perpetuated this myth is US
Supreme Court Justice Antonin Scalia. Such exonerations, he has contended,
demonstrate "not the failure of the system but its success". Justice
Scalia added:

"Like other human institutions, courts and juries are not perfect. One
cannot have a system of criminal punishment without accepting the
possibility that someone will be punished mistakenly. That is a truism,
not a revelation. But with regard to the punishment of death in the
current American system, that possibility has been reduced to an
insignificant minimum."(10)

It is disturbing that anyone, let alone a Justice of the Supreme Court,
should consider as "insignificant" the risk of wrongful convictions in
capital cases given what is known about the repeated failures of the
system. The risk was not insignificant to the more than 100 individuals
sentenced to death since 1976 who spent, on average, more than 9 years
between conviction and exoneration.(11) Factors that contributed to these
wrongful convictions include prosecutorial or police misconduct and
inadequate legal representation.

Of particular relevance in Troy Davis's case is the question of the
reliability of the witness testimony used by the state to send him to
death row. The problem of unreliable witness testimony as a source of
error in capital cases has long been recognized. For example, a major
study published in 1987 found that:

"By far the most frequent cause of erroneous convictions in our catalogue
of 350 cases was error by witnesses; more than half of the cases (193)
involved errors of this sort. Sometimes such errors occurred in
conjunction with other errors, but often they were the primary or even the
sole cause of the wrongful conviction. In 1/3 of the cases (117), the
erroneous witness testimony was in fact perjured."(12)

In addition, "clear injustices perpetrated by the police compose nearly a
quarter of the errors" identified in this study. The majority of the error
attributable to the police came in the form of coerced statements, with
the remainder accounted for by negligence and over-zealous police work.
Such misconduct was a major contributor to the wrongful conviction of 4
Illinois death row inmates, who were pardoned by the state governor in
2003 on the basis that their confessions had been tortured out of them by
the police.(13) The final report of the New Jersey Death Penalty Study
Commission, released on 2 January 2007, noted the fallibility of
eyewitness testimony in reaching the conclusion that "the penological
interest in executing a small number of persons guilty of murder is not
sufficiently compelling to justify the risk of making an irreversible
mistake". For these and other reasons, the Commission has recommended
abolition of the death penalty in New Jersey.(14)

The problem of unreliable witness testimony, some of it exacerbated or
caused by police misconduct, has been illustrated in a number of the other
cases of those released since 1976 from death rows in the USA on the
grounds of innocence. For example:

Thomas Gladish, Richard Greer, Ronald Keine and Clarence Smith were
exonerated in 1976 in New Mexico 2 years after being sentenced to death. A
newspaper investigation uncovered perjury by the prosecutions key witness,
perjured identification given under police pressure, and the use of poorly
administered lie detector tests.

Earl Charles was sentenced to death in Georgia in 1975 and was on death
row for three years before being exonerated. At his trial, 2 eyewitnesses
identified him as the murderer. However, it was later revealed that the
police had used suggestive photo line-up techniques and not revealed that
the eyewitnesses had pointed to others in the line-up as possible
suspects.(15)

Larry Hicks was acquitted at a retrial in 1980, 2 years after being
sentenced to death in Indiana. At the retrial, evidence showed that
eyewitness testimony that had been used against him at the original trial
had been perjured.

Anthony Brown was acquitted at a retrial in Florida in 1986. 3 years
earlier he had been sentenced to death on the basis of evidence from a
co-defendant who received a life sentence. At the retrial, the
co-defendant admitted that his original testimony had been perjured.

Neil Ferber was released in 1986, almost 4 years after he was sentenced to
death in Pennsylvania. The state declined to retry him after, among other
things, it emerged that a jailhouse informant had given perjured testimony
at the 1st trial.

Timothy Hennis was acquitted at a retrial in North Carolina in 1989, 3
years after being sentenced to death for murder. At the retrial, the
defence discredited the witnesses who had testified at the original trial
and pointed to a neighbour of Hennis who could have been responsible for
the crime. Charles Smith was acquitted in 1991 in Indiana, 8 years after
being sentenced to death. At the retrial, the defence presented evidence
that witnesses at his original trial had given perjured testimony.

Federico Macias was sentenced to death in Texas in 1984 on the basis of
the testimony of a co-defendant and jailhouse informants. His conviction
was overturned, a grand jury refused to indict him again because of lack
of evidence. He was released in 1993.

Walter McMillian was released in Alabama in 1993, 6 years after being
sentenced to death. His conviction was overturned after it was shown that
3 of the state's witnesses had given perjured testimony.

Ronald Williamson was released in 1999. He was sentenced to death in
Oklahoma in 1987. Among other things, his trial lawyer had failed to
question the motive of a jailhouse informant who alleged that Williamson
had confessed to the murder.

Steve Manning had charges against him dropped in 2000. He had been
sentenced to death in Illinois in 1993 on the basis of the word of a
jailhouse informant who testified that Manning had confessed to him in
jail.

Charles Fain was released in August 2001 after charges against him were
dropped. He had been sentenced to death in Idaho in 1983. The evidence
against him included the word of two jailhouse informants, who said that
Fain had confessed to the murder.

Joseph Amrine was released in Missouri in 2003, 17 years after being
sentenced to death for murder on the basis of the testimony of fellow
inmates, who later recanted their testimony.(16)

Alan Gell was acquitted in North Carolina in 2004, 6 years after being
sentenced to death. At his retrial, the defence presented evidence that
the state's 2 key witnesses had lied at the original trial.

In addition, a number of prisoners have been executed in the USA since
1977 despite serious doubts about their guilt. In some of these cases, the
doubts centred on the reliability of witness testimony.

For example:

Ruben Cantu was executed in Texas in 1993. The eyewitness and co-defendant
whose testimony was crucial to putting Cantu on death row have since
recanted.(17) In a development that is reminiscent of the Troy Davis case
(see below), the lone eyewitness has said that he felt pressured by police
into identifying Ruben Cantu as the murderer.

Larry Griffin was executed in Missouri in 1995. An investigation by the
NAACP Legal Defense and Educational Fund has cast serious doubt on the
credibility of the state's key witness.(18)

Gary Graham was executed in Texas in 2000 primarily on the testimony of a
single eyewitness. Other eyewitnesses, not interviewed by the defence
lawyer, said that Graham was not the perpetrator.(19) Angel Nieves Diaz
was executed in Florida in 2006 despite the fact that a key prosecution
witness  a jailhouse informant  had recanted his trial testimony
implicating Diaz. Angel Diaz maintained his innocence in his final
statement before being killed in a botched execution.

Amnesty International has little doubt that sooner or later it will be
shown that the USA has executed at least one person since 1976 for a crime
he or she did not commit. Such cases are, of course, hard to prove,
especially before abolition. The state will tend to resist attempts to
uncover the execution of an innocent person, and in any event, once a
person has been put to death, the scarce resources of the legal and
abolitionist communities will generally be directed toward trying to stop
future executions.(20) One such looming execution is that of Troy Davis.

Deadly mix: over-zealous police & death-qualified jury?

You've either got to believe that Troy Davis did all of this stuff or that
Sylvester Coles did. Prosecution at the trial of Troy Davis

On 28 August 1991 Troy Davis was convicted by a jury of the murder of a
police officer, 27-year-old Mark Allen McPhail, who had been shot in the
car park of a Burger King fast food restaurant in Savannah, a city on the
Georgia/South Carolina border, in the early hours of 19 August 1989.
According to the autopsy, Officer McPhail had been hit by 2 bullets, 1 in
the face and 1 in the body. He had died as a result of blood loss caused
by the bullet that had hit him in the side of his chest and pierced his
lung.

Troy Davis was also convicted of 2 counts of aggravated assault for the
shooting of Michael Cooper that occurred earlier that night as Cooper was
leaving a party in the nearby Cloverdale district of Savannah, and an
attack on Larry Young, a homeless man, who was accosted and struck across
the face with a pistol immediately before Officer McPhail was shot. A
ballistics expert testified at the trial that the .38 calibre bullet that
killed Officer McPhail could possibly have been fired from the same gun
that wounded Michael Cooper, although he admitted that he had "some doubt"
about this. He was "confident" that .38 calibre shell casings found at the
Cloverdale party matched one allegedly found by a homeless man near the
Burger King restaurant. The homeless man did not testify at the trial.

The Georgia Supreme Court would later summarize the evidence from the
trial as follows: "At midnight, on August 18, 1989, the victim, a police
officer, reported for work as a security guard at the Greyhound Bus
Station in Savannah, adjacent to a fast food restaurant. As the restaurant
was closing, a fight broke out in which Davis struck a man with a pistol.
The victim, wearing his police uniform  including badge, shoulder patches,
gun belt, .30 revolver, and night stick  ran to the scene of the
disturbance. Davis fled. When the victim ordered him to halt, Davis turned
around and shot the victim. The victim fell to the ground. Davis, smiling,
walked up to the stricken officer and shot him several more times. The
officer's gun was still in his holster

The next afternoon, Davis told a friend that he had been involved in an
argument at the restaurant the previous evening and struck someone with a
gun. He told the friend that when a police officer ran up, Davis shot him
and that he went to the officer and 'finished the job' because he knew the
officer got a good look at his face when he shot him the first time. After
his arrest, Davis told a cellmate a similar story".(21)

At the trial, Troy Davis denied having shot Michael Cooper at the
Cloverdale party, claiming that the first time he had ever seen Cooper was
in the courtroom. He admitted that he had been at the scene of the
shooting outside the Burger King, but claimed that he had neither
assaulted Larry Young nor shot Officer McPhail.

Troy Davis further denied having told anyone that he had killed Officer
McPhail. In September and October 1989, Kevin McQueen was detained in the
same jail as Troy Davis. McQueen told the police that during this time
Troy Davis had confessed to shooting Officer McPhail. McQueen testified to
this effect at the trial. Another witness, Jeffrey Sapp, also testified
that Troy Davis had told him that he had shot the officer, but that it had
been in self-defence.

The state presented 15 witnesses to testify as to Troy Davis' guilt. One
of them was Sylvester "Red" Coles. At the trial, Sylvester Coles admitted
that he had been carrying a .38 calibre silver chrome handgun, the same
calibre used in the shooting, half an hour before Officer McPhail was
shot. He said that he had discarded the gun before the incident, and that
he had not seen the gun again. Coles had gone to the police with a lawyer
soon after the shooting and made a statement exonerating himself and
implicating Troy Davis as the gunman. At the trial, Troy Davis' defence
lawyers argued: "[F]rom that point on, the entire focus of this
investigation was not in deciding and finding the truth of this case as to
who actually committed these crimes that the defendant is now on trial
for, but it was to find evidence to convict the defendant of these crimes
They bought Mr Coles' story hook, line and sinker. They never considered
Mr Coles to be a suspect And they went out into this community, and they
rounded up witnesses everywhere they could find them, and they paraded
them in here But what about the quality, the credibility of those
witnesses?

As already noted, studies of why wrongful convictions in capital cases
occur point to a number of contributory factors, including police error or
misconduct. A review of this issue published in 1996 pointed out the
following:

"We often talk of a miscarriage of justice as an error at trial, but
that's a mistake. The error occurs much earlier, in the investigation of a
crime, when the police identify the wrong person as the criminal. If they
gather enough evidence against this innocent suspect, the error will ripen
into a criminal charge; if that charge survives the formal and informal
processes of pre-trial screening, it will go to trial and a jury may
confirm the mistake by a wrongful conviction

For the most part, the pressure to solve homicides produces the intended
results But that same pressure can also produce mistakes. If the murder
cannot be readily solved, the police may be tempted to cut corners, to
jump to conclusions, and  if they believe they have the killer  perhaps to
manufacture evidence to clinch the case. The danger that the investigators
will go too far is magnified to the extent that the killing is brutal and
horrifying, and to the extent that it attracts public attention  factors
which also increase the likelihood that the murder will be treated as a
capital case". (22)

This case involves the murder of a police officer, a crime which
undoubtedly heightens emotions  among the authorities seeking to bring the
perpetrator to justice, as well as within the community and the media.(23)
71 of the 84 prospective jurors questioned during jury selection for Troy
Davis trial indicated that they had heard about the murder from pre-trial
publicity and/or had discussed the case with other people. Indeed, 32 of
these individuals were rejected during jury selection on the grounds of
their bias or prejudice. Nevertheless, only one of the jurors from the
pool, who had been living outside of Savannah at the time, said that he
had not known anything about the case. Troy Davis lawyers sought a change
of venue for the trial away from Chatham County where the crime occurred.
This motion was denied by the trial court.

When denying relief for death row inmates, it is common for an appeal
court or an executive clemency authority to point to the deference to be
afforded to the jury's verdict in the original trial. Thus, in addition to
the specific concern that the impartiality of Troy Davis's trial may have
been tainted by pre-trial publicity on the case, it is worth pausing to
consider the more general question of who sits on the jury in a US capital
trial.

In a state (as opposed to federal) capital trial, 12 citizens from the
county in which the trial is held (the county where the crime is committed
unless a change of venue is granted) are selected to sit as a "death
qualified" jury. At jury selection, the defence and prosecution will
question the prospective jurors and have the right to exclude certain
people, either for a stated reason (for cause) or without giving a reason
(a peremptory challenge). Those citizens who would be "irrevocably
committed" to vote against the death penalty can be excluded for cause by
the prosecution, under the 1968 US Supreme Court ruling in Witherspoon v.
Illinois.(24) In 1985, in Wainwright v. Witt, the Supreme Court relaxed
the Witherspoon standard, thereby expanding the class of potential jurors
who could be dismissed for cause during jury selection.(25) Under the Witt
standard, a juror can be dismissed for cause if his or her feelings about
the death penalty would "prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions and his
oath".

In 1998, the United Nations Special Rapporteur on extrajudicial, summary
or arbitrary executions expressed concern that "while the jury system was
intended to represent the community as a whole, the community can hardly
be represented when those who oppose the death penalty or have
reservations about it seem to be systematically excluded from sitting as
jurors".(26) The problem goes beyond this, however. There is evidence that
a "death-qualified" jury is more conviction-prone than its
non-death-qualified counterpart. This raises special concerns given the
irrevocability of the death penalty.

In 1986, the US Supreme Court acknowledged evidence from research that the
"death qualification" of juries "produces juries somewhat more
conviction-prone than non-death-qualified juries".(27) The Court had been
presented with 15 published studies each finding that death-qualified
jurors were more conviction-prone than excludable jurors. 3 Justices
referred to this "overwhelming evidence that death-qualified juries are
substantially more likely to convict or to convict on more serious charges
than juries on which unalterable opponents of capital punishment are
permitted to serve", adding that "death-qualified jurors are, for example,
more likely to believe that a defendants failure to testify is indicative
of his guilt, more hostile to the insanity defence, more mistrustful of
defence attorneys, and less concerned about the danger of erroneous
convictions" (emphasis added).(28)

The 3 Justices went on to note that "the true impact of death
qualification on the fairness of a trial is likely even more devastating
than the studies show". They noted that the Witherspoon ruling, while
limiting the states "ability to strike scrupled jurors for cause", had
said nothing about the prosecution's use of peremptory challenges to
eliminate jurors who had less than absolute opposition to imposing the
death penalty. There was "no question", the Justices added, "that
peremptories have indeed been used to this end".

In 1998, a review of the existing research indicated that a "favourable
attitude towards the death penalty translates into a 44 % increase in the
probability of a juror favouring conviction".(29) Another expert review in
1998 concluded that:

"Death-qualification standards theoretically exist to ensure that capital
defendants will be tried by impartial jurors. The research, however,
demonstrates that there is a deep chasm between the laws intentions and
the result of death qualification in practice. Rather than ensuring
impartiality, the result can more accurately be envisioned as a stacked
deck against the defendant: death-qualified jurors, regardless of the
standard, are more conviction-prone, less concerned with due process, and
they are more inclined to believe the prosecution than are excludable
jurors."(30)

In Troy Davis' trial in 1991, the jury rejected the defence argument that
this was a case of mistaken identity and that it was Sylvester Coles and
not Davis who had shot Officer McPhail. Instead, the jury accepted the
prosecutions theory and convicted Troy Davis on all counts. The trial
moved into the sentencing phase.

At the time of Troy Davis' trial in 1991, support for the death penalty in
the USA was far stronger than it is today. Death sentencing rates in the
United States were approaching their zenith. Some 268 people were
sentenced to death in the country in 1991. Death sentencing would peak in
the next few years  reaching its apex of 317 new death sentences in 1996
before beginning to drop off. In 2004 and 2005, for example, there were
138 and 128 new death sentences respectively  each only about half of the
1991 total. Factors contributing to this reduction in juries passing death
sentences are believed to include the number of wrongful convictions in
capital cases, a diminished belief in the deterrence value of the death
penalty, and the availability of the sentence of life imprisonment without
the possibility of parole. In other words, a greater public awareness of
the possibility of irrevocable mistakes, coupled with increased confidence
that public security can be ensured by locking up defendants for life
rather than killing them, has led to a greater reluctance among capital
jurors to pass death sentences.(31)

At the time of Troy Davis's trial, jurors in Georgia did not have the
option of life imprisonment without parole as an alternative to the death
penalty.(32) In addition, by that time there had been "only" 150
executions carried out across the USA since executions resumed in 1977.
There have been more than 900 executions since his trial. Indeed, in the
late 1980s, it was being suggested that the average capital juror in the
USA "may well not believe  at the time he or she votes for sentence  that
a death sentence is likely to ever be carried out. Indeed, that juror may
well believe that a death sentence may result merely in a longer prison
term while the protracted appellate process follows its course".(33) In
1986, Georgia Supreme Court Justice Charles Weltner said: "Everybody
believes that a person sentenced to life for murder will be walking the
streets in 7 years".(34)

65 % of all executions carried out in the USA between 1 January 1977 and 1
January 2007 occurred in the decade from 1995 to 2004. This period was
accompanied by numerous revelations about the inequities inherent in the
use of capital punishment. By the time of Troy Davis's trial in 1991, for
example, fewer than 40 people had been released from death rows since 1977
on the grounds of innocence. In the years since, more than 70 such cases
have been uncovered, with the attendant publicity increasing as the total
reached and surpassed 100.

At the sentencing phase of his trial, Troy Davis maintained his innocence
and asked the jury to spare his life. His trial lawyers urged the jurors
to consider any "little nagging lingering doubts" that they may have in
their minds and not to pass a death sentence. Their appeals fell on deaf
ears. On 30 August 1991, the jury backed the prosecution and sentenced
Troy Davis to death for the murder of Officer Mark McPhail.

With the current state of public knowledge about the risk of errors in
capital cases, about the repeated instances of prosecutorial misconduct
and inadequate legal representation, and about the unreliability of
certain witness testimony, and given the alternative of life imprisonment
without parole, would a jury today  presented with the evidence from the
1991 trial  sentence Troy Davis to death?

The states evidence is not what it was 15 years ago, however. Therefore
another question must also be asked. If the jurors from the original trial
were presented with the evidence as it stands today, would they still
support a death sentence?

The witnesses  recanted and new testimony

[T]he only remnants of the States case against Troy Davis is the dubious
testimony of Red Coles and Steven Sanders' questionable courtroom
identification of Mr Davis.

Federal appeal brief for Troy Davis, 2005

There was no physical evidence against Troy Davis and the weapon used in
the crime was never found. The case against him consisted entirely of
witness testimony which contained inconsistencies even at the time of the
trial. In state habeas corpus proceedings in 1996, one of his trial
lawyers recalled that there had been "a number of witnesses who either saw
the actual shooting or saw the incident involving Mr Young, Larry Young.
And there were a lot of inconsistencies about the colour of shorts,
whether someone had a hat on or didn't have a hat on, about size, about
skin colouration."(35)

Nevertheless, the State of Georgia maintains that the conviction and death
sentence against Troy Davis are reliable. For example, a legal brief it
filed in federal court in 2005 in the case stated: "Red Coles identified
petitioner as the perpetrator of Officer McPhail's murder, as did numerous
other eyewitnesses, including Harriet Murray, Dorothy Ferrell, Daryl
Collins, Antoine Williams, Steven Sanders and Larry Young."(36) However,
in affidavits signed over the years since the trial, all but three of the
witnesses whose testimony secured the conviction and death sentence
against Troy Davis have recanted or contradicted their trial testimony. At
oral arguments in September 2005 in the US Court of Appeals for the 11th
Circuit (see below) a lawyer from the Georgia Attorney Generals office
dismissed the recantations, describing them as "rank hearsay." (37) Yet
the state is relying on the testimony from those same individuals to
support its bid to kill Troy Davis.

All but three of the state's non-police witnesses from the trial have
recanted their testimony. One of the 3 who has not recanted his testimony
is Sylvester Coles  the principle alternative suspect, according to the
defence at the trial, and against whom there is new evidence implicating
him as the gunman. Another is Steven Sanders. He was one of a number of
members of the US Air Force who were in a van at the drive-in section of
the Burger King restaurant at the time of the crime. In a statement given
to police shortly after the shooting, Stephen Sanders said that he had
seen a "black male wearing a white hat and white shirt, black shorts"
shoot the officer and then run off with another person who Sanders thought
was wearing a "black outfit". He said that he "wouldn't recognize them
again except for their clothes". However, for the 1st time, 2 years later,
at the trial, Stephen Sanders identified Troy Davis as the gunman. At the
time of writing, Troy Davis' lawyers had not been able to contact Steven
Sanders. 2 of his Air Force colleagues, Daniel Kinsman and Robert
Grizzard, who were with Sanders at the time of the crime, have signed
affidavits standing by their statements given to the police that they
could not identify the gunman (see below). Robert Grizzard has said that,
contrary to what he mistakenly testified at the trial, he could not then
and still could not recall what the gunman was wearing. For his part,
Daniel Kinsman has testified that he remains convinced that the gunman was
firing the gun with his left hand. Troy Davis is right-handed.

A third witness who has contradicted her trial testimony is Harriet
Murray. Murray, who was also homeless at the time, was with her friend
Larry Young on the night of the crime. Her various statements given to the
police, at the preliminary hearing, at the trial, and in an affidavit
signed on 14 October 2002 are inconsistent. According to Troy Daviss
federal appeals, Harriet Murray's police statement and her testimony at
the preliminary hearing appear to implicate Sylvester Coles. At the
subsequent trial she identified Troy Davis as the gunman, but was not
asked and did not say whether the man who followed Larry Young, harassed
him and attacked him was the same person who shot the police officer. In
her 2002 affidavit, she did not identify Troy Davis as the shooter. This
was consistent with a statement she gave to police after the crime, in
which she simply stated that she had witnessed "a black man" accost Larry
Young and hit him on side of the face with his gun. She said she saw the
same man subsequently shoot the police officer. She said that she had also
seen "2 other black men" nearby but they were "not right up with Larry and
the other man".

Troy Davis' lawyers have argued in appeal briefs filed in federal court
that the description contained in Harriet Murray's 2002 affidavit, her
1989 police statement and 1989 preliminary hearing testimony identify
Sylvester Coles as the person who shot Officer McPhail in 4 respects.
Firstly, Murray describes the gunman as the man who argued with Larry
Young and who had tried "to start something with Larry". The lawyers state
that at the trial, Sylvester Coles admitted to being the only person who
had been "picking a fight" with Young. Secondly, in her affidavit, Harriet
Murray recalls that the gunman shouted to Young, "You don't know me. I'll
shoot you." The lawyers stated that at the trial, Larry Young testified
that the person with whom he argued shouted something like "You don't know
me, I've got a gun, I'll shoot you". They state that neither Troy Davis
nor Darrell Collins (see below) had said anything to Young. Thirdly,
Harriet Murrays affidavit recalls that the man who argued with Young had
followed the latter up Oglethorpe Avenue.(38) The lawyers state that at
the trial, Larry Young and Sylvester Coles had testified that it had been
Coles who had followed Young up Oglethorpe Avenue. Finally, the affidavit
states that the "2 other black men" were walking through the bank drive-in
section and were not near Larry Young when he was assaulted. The lawyers
state that this was consistent with what Coles, Young and Davis testified
at trial.

The witnesses in Troy Davis' case fall into a number of categories. There
are "informants", who claimed that Troy Davis told them that he had shot
Officer McPhail. There are "eyewitnesses", who were present at or near the
scene of the crime. There are "party witnesses" who were present at the
Cloverdale party and were used to link Davis to the shooting of Michael
Cooper that occurred there prior to the killing of the police officer.
Finally, there are a number of people who were not heard at trial,
including those whose affidavit statements implicate Sylvester Coles as
the gunman.

The witnesses are listed below by category and in the chronological order
in which their affidavits were signed.(39)

1. 'Informant' testimony

The Commission on Capital Punishment, set up by Governor Ryan of Illinois
after he imposed a moratorium on executions in 2000, examined the question
of testimony provided by in-custody informants. The Commissions April 2002
report concluded that, even with stringent safeguards on the use of such
evidence, "the potential for testimony of questionable reliability remains
high, and imposing the death penalty in such cases appears ill-advised".
The Commission points out that "a number of the Illinois cases in which
inmates were ultimately released from death row involved proffers of
testimony from in-custody informants, and much of which was of dubious
veracity." It recommended that prosecutors and defence lawyers involved in
capital cases should receive periodic training on "the risks of false
testimony by in-custody informants".

In 1996, a federal judge on the US Court of Appeals for the Ninth Circuit
offered the following advice to prosecutors: "The most dangerous informer
of all is the jailhouse snitch who claims another prisoner has confessed
to him The precautionary rule of thumb with a jailhouse confession
presented by another inmate is that it is false until the contrary is
proved beyond a reasonable doubt".(40)

Kevin McQueen

Affidavit, 5 December 1996

In September and October 1989, Kevin McQueen was detained in the same jail
as Troy Davis. McQueen told the police that during this time Troy Davis
had confessed to shooting Officer Mark McPhail. In his 1996 affidavit, he
retracted this statement, saying that he had given it because he wanted to
"get even" with Davis following a confrontation he said the two of them
had allegedly had.

"The truth is that Troy never confessed to me or talked to me about the
shooting of the police officer. I made up the confession from information
I had heard on T.V. and from other inmates about the crimes. Troy did not
tell me any of this I have now realized what I did to Troy so I have
decided to tell the truth I need to set the record straight".

Monty Holmes

Affidavit, 17 August 2001

Monty Holmes testified against Troy Davis in a preliminary pre-trial
hearing, but did not testify at the trial, as he explains in an affidavit
signed in August 2001:

"In August of 1989, the police came to talk to me about the officer who
was killed in Savannah. They wanted to know if Troy Davis was involved in
the shooting and whether he had said anything to me about being involved
with the shooting By the way the police were talking, I thought I was
going to be in trouble. I told them I didn't know anything about who shot
the officer, but they kept questioning me. I was real young at that time
and here they were questioning me about the murder of a police officer
like I was in trouble or something. I was scared [I]t seemed like they
wouldn't stop questioning me until I told them what they wanted to hear.
So I did. I signed a statement saying that Troy told me that he shot the
cop."

When I had to go to court that first time, I felt like I had to say what
was in that statement or I'd be in trouble, so thats what I did. When it
came to the trial though, I didnt want to go because I knew that the truth
was that Troy never told me anything about shooting [the police officer].
I heard the police were coming by to give me a subpoena for trial. I
dodged the subpoena but they still left it with my mother. I still didn't
feel like I could walk in a court and say those things so I didn't go to
the trial".

Monty Holmes' pre-trial testimony was admitted at the trial without
cross-examination possible due to his absence. Article 14.3(e) of the
International Covenant on Civil and Political Rights provides that any
criminal defendant must be allowed, "in full equality", to be able "to
examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him". While Monty Holmes knowingly avoided
testifying at the trial, if his pre-trial testimony and his absence from
the trial were influenced by coercive tactics allegedly employed by the
police, the state played a role in undermining the right of Troy Davis to
a fair trial.

Jeffrey Sapp

Affidavit, 9 February 2003

Jeffrey Sapp testified that Troy Davis had told him that he had shot the
officer in self-defence. In his affidavit, he stated:

"I remember when the officer got shot down at Burger King The police came
and talked to me and put a lot of pressure on me to say, 'Troy said this'
or 'Troy said that'. They wanted me to tell them that Troy confessed to me
about killing that officer. The thing is, Troy never told me anything
about it. I got tired of them harassing me, and they made it clear that
the only way they would leave me alone is if I told them what they wanted
to hear. I told them that Troy told me he did it, but it wasn't true. Troy
never said that or anything like it. When it came time for Troys trial,
the police made it clear to me that I needed to stick to my original
statement; that is, what they wanted me to say. I didnt want to have any
more problems with the cops, so I testified against Troy".

2. 'Eyewitness' testimony

Dorothy Ferrell

Affidavit, 29 November 2000

At the trial, Dorothy Ferrell, who was staying at a hotel near the Burger
King at the time of the crime, identified Troy Davis as the person who had
shot Officer McPhail, emphasising "Im real sure, that that is him and, you
know, it's not a mistaken identity".

After the guilt/innocence phase of the trial had ended, the wife of Troy
Davis' defence lawyer received a telephone call from a woman who
identified herself as Dorothy Ferrell, and stated that she had lied on the
witness stand. The prosecution then revealed that Dorothy Ferrell had
written a letter to District Attorney Spencer Lawton requesting "a favour"
and his "help" with her own difficulties with the law. She was on parole
at the time. She wrote in the letter: "Mr Lawton if you would please help
me, I promise you, you won't be making a mistake" [emphasis in original].

After this revelation, Dorothy Ferrell was recalled to the witness stand,
outside of the presence of the jury. She denied having made the telephone
call, but admitted to having written the letter. The judge then offered
the defence the opportunity to cross-examine Dorothy Ferrell in the
presence of the jury, but they did not do so, instead calling for a
mistrial on the grounds that the prosecution had withheld information from
the defence. The trial judge denied their motion for a new trial.

In her affidavit signed in November 2000, Dorothy Ferrell recalled that
she had been staying in a hotel opposite the Burger King restaurant on the
night of the shooting. She said that she heard a woman scream and
gunshots. In her affidavit, she recalls seeing "more than 2 guys running
away", but states that she did not see who the gunman was. After the
crime, she was asked to go down to the police station, where she was made
to wait until she gave a statement. The affidavit continues: "I was real
tired because it was the middle of the night and I was pregnant too I was
scared that if I didnt do what the police wanted me to do, then they would
try to lock me up again. I was on parole at the time and I had just gotten
home from being locked up earlier that year.

When the police were talking to me, it was like they wanted me to say I
saw the shooting and to sign a statement. I wanted to be able to leave and
so I just said what they wanted me to say. I thought that would be the end
of it, but it turned out not to be the end."

Some time later, a police detective visited Dorothy Ferrell and showed her
a photograph of Troy Davis, and told her that other witnesses had
identified him as the gunman:

"From the way the officer was talking, he gave me the impression that I
should say that Troy Davis was the one who shot the officer like the other
witness [sic] had I felt like I was just following the rest of the
witnesses. I also felt like I had to cooperate with the officer because of
my being on paroleI told the detective that Troy Davis was the shooter,
even though the truth was that I didn't see who shot the officer."

In her affidavit, Dorothy Ferrell recalls her fear that if she did not
repeat her statement at the trial, she would be charged with perjury and
"sent back to jail". She says that she spoke to two lawyers who said that
she could be so charged and could be sentenced to up to 10 years in
prison.

"I had 4 children at that time, and I was taking care of them myself. I
couldn't go back to jail. I felt like I didn't have any choice but to get
up there and testify to what I said in my earlier statements. So that's
what I did."

On the question of the telephone call made to Troy Davis' defence counsel
at the time of the trial, Dorothy Ferrells affidavit adds that:

"I didn't make that call to the house of the attorney but my friend made
the call after she and I had talked. I told my friend about how I had
testified to things that werent the truth and I was feeling bad about it.
That's why she made the call."

Darrell "D.D." Collins

Affidavit, 11 July 2002

Darrell Collins was a friend of Troy Davis who was with him on the night
of the crime. At the time, he was 16 years old. In his affidavit he said
that the day after the shooting, 15 or 20 police officers came to his
house, "a lot of them had their guns drawn". They took him in for
questioning, and the affidavit continues:

"When I got to the barracks, the police put me in a small room and some
detectives came in and started yelling at me, telling me that I knew that
Troy Daviskilled that officer by the Burger King. I told them that I
didn't see Troy do nothing. They got real mad when I said this and started
getting in my face. They were telling me that I was an accessory to murder
and that I would pay like Troy was gonna pay if I didnt tell them what
they wanted to hear. They told me that I would go to jail for a long time
and I would be lucky if I ever got out, especially because a police
officer got killed I didn't want to go to jail because I didnt do nothing
wrong. I was only 16 and was so scared of going to jail. They kept saying
that[Troy] had messed with that man up at Burger King and killed that
officer. I told them that it was Red and not Troy who was messing with
that man, but they didn't want to hear that

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. They
would tell me things that they said had happened and I would repeat
whatever they said."

Darrell Collins said that he signed a typed statement without reading it,
and was then allowed to go home. According to his affidavit, he was
questioned again about a week later by the police who gave him another
typed statement to sign. He said he again signed the statement without
reading it. The affidavit continues:

"I testified against Troy at his trial. I remember that I told the jury
that Troy hit the man that Red was arguing with. That is not true. I never
saw Troy do anything to the man. I said this at the trial because I was
still scared that the police would throw me in jail for being an accessory
to murder if I told the truth about what happened

It is time that I told the truth about what happened that night, and what
is written here is the truth. I am not proud for lying at Troy's trial,
but the police had me so messed up that I felt that's all I could do or
else I would go to jail."

Larry Young

Affidavit, 11 October 2002

Larry Young was the homeless man who was accosted and then struck in the
face, and whose shouts drew the attention of Officer McPhail. At the
trial, he implicated Troy Davis as the man who had assaulted him, but only
identifying him by his clothing. His affidavit, signed in 2002, offers
further evidence of a coercive police investigation into the murder of
their fellow officer, and states that he "couldn't honestly remember what
anyone looked like or what different people were wearing".

"After I was assaulted that night, I went into the bathroom at the bus
station and tried to wash the blood off my face. I had a big gash on my
face and there was blood everywhere. I was in a lot of pain. When I left
the bathroom, some police officers grabbed me and threw me down on the
hood of the police car and handcuffed me. They treated me like a criminal,
like I was the one who killed the officer. Even though I was homeless at
that time and drinking and drugging, I didn't have nothing to do with
killing the officer. I told the officers that, but they just locked me in
the back of the police car for the next hour or so. I kept yelling that I
needed to be treated but they didn't pay me no mind. They then took me to
the police station and interrogated me for three hours. I kept asking them
to treat my head, but they wouldn't.

They kept asking me what had happened at the bus station, and I kept
telling them that I didn't know. Everything happened so fast down there. I
couldn't honestly remember what anyone looked like or what different
people were wearing. Plus, I had been drinking that day, so I just
couldn't tell who did what. The cops didn't want to hear that and kept
pressing me to give them answers. They made it clear that we weren't
leaving until I told them what they wanted to hear. They suggested answers
and I would give them what they wanted. They put typed papers in my face
and told me to sign them. I did sign them without reading them.

I never have been able to make sense of what happened that night. It's as
much a blur now as it was then."

Antoine Williams

Affidavit, 12 October 2002

Antoine Williams, an employee of Burger King, had just driven into the
restaurant's car park at the time the shooting occurred. At the trial, he
identified Troy Davis as the person who had shot Officer McPhail. In 2002
he stated that this was false, and that he had signed a statement for the
police which he could not and did not read.

"I couldn't really tell what was going on because I had the darkest shades
of tint you could possibly have on my windows of my car. As soon as I
heard the shot and saw the officer go down, I ducked down under the dash
of my car. I was scared for my life and I didn't want to get shot myself

Later that night, some cops asked me what had happened. I told them what
is written here [in the affidavit]. They asked me to describe the shooter
and what he looked like and what he was wearing. I kept telling them that
I didn't know. It was dark, my windows were tinted, and I was scared. It
all happened so fast. Even today, I know that I could not honestly
identify with any certainty who shot the officer that night. I couldn't
then either. After the officers talked to me, they gave me a statement and
told me to sign it. I signed it. I did not read it because I cannot
read.(41)

At Troy Davis' trial, I identified him as the person who shot the officer.
Even when I said that, I was totally unsure whether he was the person who
shot the officer. I felt pressured to point at him because he was the one
who was sitting in the courtroom. I have no idea what the person who shot
the officer looks like."

Daniel Kinsman

Affidavit, 15 October 2002

Daniel Kinsman was with other Air Force personnel in a van in the Burger
King car park at the time of the crime. He was interviewed by police. He
describes himself as having been "relatively close to the scene" of the
shooting, but remains confident that he would "not have been able to make
any identification of the shooter due to the poor lighting and the chaotic
nature of the scene". In the affidavit, Daniel Kinsman recalls "two things
that stand out to this day about what I witnessed at the Burger King".
First, as he told the police, "there was and is no doubt in my mind that
the person who shot the officer had the gun in and was shooting with his
left hand." Second, the gun had a "shiny finish not dull in any sense of
the term." Troy Davis is right-handed.

Robert Grizzard

Affidavit, 23 March 2003

In 1989, Robert Grizzard was a Sergeant in the US Air Force, and was in
Savannah for a training exercise. He was in a van in the Burger King car
park at the time of the shooting of Officer McPhail. In his affidavit,
Robert Grizzard stated:

"I have reviewed the transcript of my testimony from the trial of Troy
Davis During my testimony I said that the person who shot the officer was
wearing a light coloured shirt. The truth is that I dont recall now and I
didn't recall then what the shooter was wearing, as I said in my initial
statement [to the police]. My testimony to the contrary was an honest
mistake on my part As I said in my statement given on that night, I do not
and did not remember what the shooter was wearing."

3. 'Party' testimony

In the hours before the shooting of Officer McPhail there was a party in
the nearby neighbourhood of Cloverdale, Savannah. As Michael Cooper and a
group of friends were leaving the party in their car, shots were fired,
wounding Cooper. Troy Davis was convicted of aggravated assault for the
shooting.

At the trial, Darrell Collins repudiated his initial statement to the
police that Troy Davis had shot at the car. He testified that he had not
seen Troy Davis with a gun on the night of the shooting. Michael Cooper
testified that he had not seen who shot him. In a 2002 affidavit (below),
he repudiates a statement he allegedly gave to police implicating Troy
Davis. Benjamin Gordon testified that he had not seen who shot Cooper,
contrary to a statement he gave to police after the crime. In a 2003
affidavit (below) he states that the statement he gave to police (when he
was 15) had been coerced. Craig Young testified at trial that a statement
he gave to police in which he stated that Troy Davis had threatened some
guests at the Cloverdale party and that Davis had told him that he had
fought with another guest were false and coerced by the police.

In a 1995 affidavit, April Hester (below) stated that Sylvester Coles was
at the Cloverdale party.

Joseph Blige

Affidavit, 1 December 1995

Joseph Blige, who was 15 years old at the time of the crime, went to the
Cloverdale party. He was in the car that was shot at, and in which Michael
Cooper was wounded. His affidavit stated that neither he nor anyone he was
with at the party "had any words or any problem with Troy Davis".

"As we drove off Michael yelled something out the window and shooting
started. Our car was hit at least 6 times. I heard more than 6 shots. I
head more than 1 weapon being fired. At least 1 of the weapons being fired
was an automatic. It could not have been a revolver because the shots came
too fast.

We drove Michael to the hospital. The police talked to us there in the
hospital parking lot. A sergeant picked up a bullet from behind the
panelling in the door of the car. There was [sic] different size bullet
holes in the car. The sergeant saw all the bullet holes. He saw the blood
in the car. I do not know what he did with the bullet he picked up. The
police did not want to keep the car for evidence. We left in the car.

The next morning the police got me from Yamacraw and asked me lots of
questions about the shooting of the police officer that happened at the
bus station. They even tried telling me they knew I shot the officer."

Michael Cooper

Affidavit, 10 February 2002

Michael Cooper was shot and wounded on leaving the Cloverdale party. Troy
Davis was convicted of the shooting at his trial for the murder of Officer
McPhail which happened later the same night. In his affidavit, Michael
Cooper states that:

"I have had a chance to review a statement which I supposedly gave to
police officers on June 25, 1991. I remember that they asked a lot of
questions and typed up a statement which they told me to sign. I did not
read the statement before I signed. In fact, I have not seen it before
today. In that statement, the police said that I told them that Mark
[Wilds] told me that Troy shot me. I never told the police that. Mark
never said that to me. What is written in that statement is a lie. I do
not know who shot me that night. I do not know it now, and I did not know
it then."

Benjamin Gordon

Affidavit, 10 February 2003

Benjamin Gordon, who was 15 years old at the time of the crime, had been
at the party in Cloverdale and was leaving in the car with Michael Cooper
when the latter was shot and wounded. In his affidavit, he states that
"the shooting came from the shadows next to the street", and that "I never
saw who did the shooting". The affidavit continues:

"Later that night, police officers came and dragged me from my house in
Yamacraw. There were police officers everywhere after the police officer
was killed and it seemed like they were taking everyone in Yamacraw to the
police barracks for questioning. I was handcuffed and they put a
nightstick under my neck. I had just turned 16 and was scared as hell. The
police officers took me to the barracks and put me in a small room. Over
the next couple of hours, three or so officers questioned me  at first,
they called me a motherfucker and told me that I had shot the officer.
They told me that I was going to the electric chair. They got in my face
and yelled at me a lot. The cops then told me that I did the shooting over
in Cloverdale. I just kept telling them that I didnt do anything, but they
weren't hearing that. After 4 or 5 hours, they told me to sign some
papers. I just wanted to get the hell out of there. I didn't read what
they told me to sign and they didn't ask me to.

When it came time for trial, I was in jail, and the sheriffs office
transported me to the courthouse. A person in a suit told me to say to the
court what I had told the police. I believe that person was with the
District Attorney's office.

No one working on Troy's case even came to speak to me before trial. If
they would have, I would have talked to them and told them what is
contained in this affidavit."

4. Testimony implicating Sylvester Coles

Affidavits have been signed by a number of people who knew Sylvester Coles
or saw him at or after the shooting.

Joseph Washington

Affidavit, 6 December 1996

Joseph Washington, who was 16 years old at the time of the crime, was at
the party in Cloverdale. In his affidavit, he has stated that:

"Very soon after the shooting at the Cloverdale party I went to Fahm
street right near the Burger King. This is where I saw Sylvester Coles  I
know him by the name Red  shoot the police officer. I am positive that it
was Red who shot the police officer Red was wearing a white shirt with a
Batman print on the front of it.

This is the 1st time I have been asked about the shirt Red was wearing. I
would have testified to this but I was not asked by the state or by Troy's
lawyers. At the time of the shooting and the trial I was very young. I did
not want to testify because I knew my testimony was going to be on
television. I had no idea that the shirt Red was wearing at that time was
important because no one ever asked me.

I was very nervous when I testified I got confused by [the] questions."

Tonya Johnson

Affidavit, 6 December 1996

Tonya Johnson was living not far from the Burger King where Officer
McPhail was shot. In her affidavit, she stated that she heard the shots
and saw:

"Sylvester Coles  we all called him Red  and a guy named Terry coming down
the street from the Burger King. When I saw Red and Terry they were both
in a panic and very nervous. Red and Terry each had a gun with them at
that time. Red asked me to hold the guns for him, which I refused to do.
Red then took both guns next door to an empty house and put them inside
the screen door and shut the door I have known Red all of my life. He used
to live next door to me For most of my life I have been scared to death of
him. In fact, he threatened me after this happened. He told me that he
wanted to make sure that I did not tell the police about the guns he hid
in the screen door that morning. This is why I did not testify about the
guns at Troy's trial because I was afraid of what Red would do to me if I
did. I have not told anyone about this until now because I was still
scared But I have decided that I must tell the truth."

Anthony Hargrove

Affidavit, 8 August 2001

"I know a guy named Red, from Savannah. His real name is Sylvester Coles.
I've known Red for years and we used to hang out together. Red once told
me that he shot a police officer and that a guy named Davis took the fall
for it. He told me this about a year or so after the officer was killed We
were smoking weed and talking. Red told me that he'd had a close one once.
I asked him what he meant. Red told me he'd killed someone and another guy
took the fall for it. I asked Red who he killed. Red said he killed a
policeman and a guy named Troy took the fall for itI wasn't real surprised
to hear that Red killed an officer Red was known to always carry a gun and
he would use it."

Gary Hargrove

Affidavit, 17 August 2001

Gary Hargrove did not testify at the trial. His affidavit stated that he
was at the Burger King at the time of the crime. In the affidavit, he
recalled:

"The guy who was running away looked like Troy Davis but I cant say for
sure that it was him because he had his back to me as he was running away.
They guy who was still standing there after the first shot was fired and
when I heard the second shot was a guy whose nickname is Red I am sure
that Red was facing in the officer's direction when I heard the shooting.
The guy who was running away had his back to where the officer was as the
shots were going off.

I was never talked to by the police or any attorneys or investigators
representing Troy Davis before his trial. I didn't go up to talk to the
police that night because I was on parole at the time and was out past my
curfew so I didnt want my parole officer to find out about that."

Shirley Riley

Affidavit, 18 August 2001

Shirley Riley was a friend of Sylvester Coles.

"People on the streets were talking about Sylvester Coles being involved
with killing the police officer so one day I asked him if he was involved
Sylvester told me he did shoot the officer"

Darold Taylor

Affidavit, 20 August 2001

"In the mid-90s, I met a guy named Red in Yamacraw VillageRed and I ended
up becoming drinking kind of friends over the yearsI had heard from a lot
of people in Yamacraw Village about an officer getting shot and killed at
a Burger King back in 1989. Everybody who talked about that shooting in
the Yamacraw area said that Red did the shooting and Red killed the
officer. I remember reading in the paper once about how a guy named Troy
Davis got sentenced to the electric chair One day when I was in the
parking lot of Yamacraw drinking beers with Red. I told him about how Id
heard that he was the one who killed the officer. Red told me to stay out
of his business. I asked him again if he killed the officer and Red
admitted to me that he was the one who killed the officer, but then Red
told me again to stay out of his business."

April Hester Hutchinson

Affidavit, 9 July 2002

April Hester Hutchinson (formerly April Hester), who was 18 years old at
the time, and her cousins had given the party in Cloverdale which preceded
the shooting of Officer McPhail and at which Michael Cooper had been shot.
She had previously signed an affidavit on 30 November 1995. In this
earlier affidavit, she recalled that Sylvester "Red" Coles had been at the
party. After the shooting at the party the police had arrived. While they
were there, the news came through on their radios that an officer had been
shot. The police left. April and her cousins drove to Yamacraw "to find
out what happened": "I saw Red walking fast up the street at Yamacraw. He
acted very nervous and upset."

In her subsequent July 2002 affidavit, she stated that her earlier
affidavit had been correct but had not contained everything.

"As I walked back to my house, I saw my cousin Tonya [Johnson] talking to
Red. I walked up to them. It was clear to me that Red was real nervous and
was sweating profusely. He was fidgeting with his hands and could not keep
still Red turned to me and asked me if I would walk with him up to the
Burger King so 'they won't think that I had nothing to do with it'. That's
exactly what he said

I told [the police] that I saw Red talking to my cousin Tonya and that Red
was real nervous. I did not tell them about what Red had said to me
because I was scared he would hurt me. I was thinking that if he did that
to a police officer, what would he do to me? I didn't want to die like
that officer, so I kept my mouth shut."

Anita Saddler

Affidavit, 10 July 2002

Anita Saddler was with Tonya Johnson (see above) on the night of the
shooting.

"When I saw Red and Terry, they were jumpy and couldnt stand still. Their
eyes were shifting around and they were looking everywhere. They walked up
to us and Red asked us to go up to Burger King and see what happened. Like
I said, they were real nervous and fidgety. Red had a gun which was stuck
into his shorts. I saw the outline of his gun through his white shirt. I
had seen him with a gun many times before.".

Peggie Grant

Affidavit, 11 July 2002

Peggie Grant is the mother of April Hester Hutchinson. She says that on
the night of the shooting, she saw her daughter April with Red Coles, who
was wearing a white T-shirt. She had shouted across to her daughter
because "I knew Red from the neighbourhood and knew him to act crazy and
violent, especially when he was drinking. I didn't want April hanging out
with him". The affidavit recalls:

"A few hours later, April called me on the phone. She said she was back in
Cloverdale. April didnt sound right  she was nervous and scared. I could
tell that by the sound of her voice. April told me she had been down at
the old police barracks and that the police had questioned her about a
shooting in Cloverdale and the police officer's shooting. She told me that
she had had a conversation with Red where he asked her to walk up with him
to where the officer was shot so that the police would think that he was
with her and not think he did anything. April also told me that after I
had yelled at her, Red had given her a mean look and told her not to say
anything to anyone about what he had said. She said she didnt know what to
do and was scared about what Red might do to her if she told anybody."

Caught in a trap: Federal appeals denied

The enactment of the 1996 Anti-terrorism and Effective Death Penalty Act
and the lack of funding of PCDOs have further jeopardized the
implementation of the right to a fair trial as provided for in the ICCPR
and other international instruments.

UN Special Rapporteur, 1998(42)

Once a person is convicted, he or she bears the burden of showing that the
conviction or sentence was tainted by error that requires a judicial
remedy. It is an uphill task, and one that faces many legal and technical
hurdles.

In 1993, the Georgia Supreme Court affirmed Troy Davis' conviction and
death sentence. In 1994, Troy Davis filed a habeas corpus petition in
state court, claiming that he was the victim of miscarriage of justice and
that the wrong man had been convicted of the murder. The appeal claimed
that witnesses had been placed under improper pressure by police and law
enforcement personnel. After an evidentiary hearing, the state habeas
court denied the petition in September 1997. The court stated that the
claim of coercive or suggestive law enforcement techniques had been
procedurally defaulted, that is, that it could and should have been raised
earlier. The court acknowledged that the failure of the defence "to
discover, admit or effectively argue" evidence undermining the credibility
of witness testimony at the trial "would appear to place this case in the
category of a case of mistaken identity". However it ruled that the jury
decision should stand as such evidence had been presented at the trial:

"[M]any pieces of evidence supporting a finding that Coles was the shooter
or highlighting inconsistencies in the testimony of witnesses who
identified Davis as the shooter were indeed presented to the jury during
Davis' trial. The jury, in its rightful role as finder of fact during the
trial, was responsible for evaluating the credibility of the witnesses and
determining whether the state proved beyond a reasonable doubt that Davis
shot and killed Officer McPhail. This courtcannot supplant the role of the
jury and find based on its own review of the record that the jury should
have concluded that the state did not carry its burden at Davis' trial.
The core purpose of the writ of habeas corpus would not be served by such
a presumptuous usurpation of the jury's deliberative process. This court
is limited to evaluating whether Davis rights were properly protected in
the context of his jury trial."

The state court's denial of habeas corpus relief for Troy Davis was
affirmed in November 2000 by the Georgia Supreme Court. The case then
moved into the federal courts. Placed before them would be evidence that
much of the witness testimony from the trial had been recanted, as well as
additional testimony tending to support Troy Davis claim that he did not
shoot Officer Mark McPhail. His federal habeas corpus petition was brought
under a law passed in 1996, the Anti-Terrorism and Effective Death Penalty
Act (AEDPA).

President Bill Clinton signed the AEDPA into law on 24 April 1996. "I have
long sought to streamline federal appeals for convicted criminals
sentenced to the death penalty", he said at the signing; "For too long,
and in too many cases, endless death row appeals have stood in the way of
justice being served."(43) He added that "from now on, criminals sentenced
to death for their vicious crimes will no longer be able to use endless
appeals to delay their sentences."(44)

The Act placed new, unprecedented restrictions on prisoners raising claims
of constitutional violations. It imposed severe time limits on the raising
of constitutional claims, restricted the federal courts' ability to review
state court decisions, placed limits on federal courts granting and
conducting evidentiary hearings, and prohibited "successive" appeals
except in very narrow circumstances. As one leading US lawyer has said:

"The provisions of the Anti-terrorism and Effective Death Penalty Act of
1996 restricting the power of federal courts to correct constitutional
error in criminal cases represent a decision that results are more
important than process, that finality is more important than fairness, and
that proceeding with executions is more important than determining whether
convictions and sentences were obtained fairly and reliably."(45)

Under the AEDPA, once Troy Davis' conviction and death sentence had been
upheld by the Georgia courts, the possibility of relief in the federal
courts was curtailed. Federal relief was only permissible if the decision
of a state court had "resulted in a decision that was contrary to, or
involved in an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States". This
deferential "reasonableness" standard represented "a remarkable departure
from the traditional role of federal courtsto declare what the law
is".(46)

Even without the AEDPA, the Supreme Court had already curtailed the
ability of death row inmates to obtain habeas corpus relief in the federal
courts. Fairness was being jeopardized in the name of finality. On the
question of innocence, the US Supreme Court set a high hurdle for a
condemned inmate seeking to have his or her conviction and death sentence
overturned on such grounds. In Herrera v. Collins in 1993, the Court said
that even if, for the sake of argument, "a truly persuasive post-trial
demonstration of actual innocence' would render a defendants execution
unconstitutional and warrant federal habeas relief", the threshold to
trigger such relief "would necessarily be extraordinarily high because of
the very disruptive effect that entertaining such claims would have on the
need for finality in capital cases and the enormous burden that having to
retry cases based on often stale evidence would place on the States".(47)

Under the 1995 Supreme Court ruling Schlup v. Delo, a condemned prisoner
can obtain judicial review of otherwise barred claims if he or she
produces reliable new evidence of actual innocence not available at trial,
which demonstrates that it is more likely than not that with this new
evidence no reasonable juror would have voted to convict.(48) This opens
the Schlup "gateway". The Supreme Court emphasised that the Schlup rule
would apply only to the "extremely rare" cases in which there is a
"substantial claim that constitutional error has caused the conviction of
an innocent person", adding that the "quintessential miscarriage of
justice is the execution of an innocent person."

In support of the claim that the police had improperly pressured witnesses
into implicating Troy Davis as the gunman, the affidavits of Antoine
Williams, Larry Young, Darrell Collins and Monty Holmes (see above) were
introduced for the first time before federal District Court Judge John F.
Nangle. The State of Georgia argued that this claim had been procedurally
defaulted and could therefore not be considered by the federal judge.
Judge Nangle agreed, and continued that because he was satisfied that no
constitutional error had occurred, "the actual innocence gateway [under
Schlup] need not be accessed" to overcome the procedural default:

"The Court finds that because the submitted affidavits are insufficient to
raise doubts as to the constitutionality of the result at trial, there is
no danger of a miscarriage of justice in declining to consider the
claim."(49)

In his ruling in May 2004, Judge Nangle rejected other claims concerning
such issues as ineffective assistance of counsel, unfair jury selection,
prosecutorial misconduct, and the use of inflammatory evidence at the
trial. His ruling meant that Troy Davis would not receive a hearing on the
new evidence contained in the affidavits. Under the AEDPA, a federal
evidentiary hearing cannot be held on claims that the prisoner could have
developed in state court.(50)

In 1995, during the time Troy Davis was in state habeas corpus
proceedings, the US Congress voted to eliminate federal funding for the
post-conviction defender organizations (PCDOs) which it had established in
1988 to provide legal assistance to indigent death row prisoners. One such
PCDO, the Georgia Resource Center, which was representing Troy Davis, had
its budget cut by some two thirds and the number of lawyers on its staff
cut from 8 to 2. Their case load was some 80 death row cases.(51) A lawyer
working on Troy Davis case stated in an affidavit that "I desperately
tried to represent Mr Davis during this period, but the lack of adequate
resources and the numerous intervening crises made that impossible We were
simply trying to avert total disaster rather than provide any kind of
active or effective representation".(52) In his report on the USA in 1998,
the UN Special Rapporteur on extrajudicial, summary or arbitrary
executions expressed concern that "the absence of PCDOs creates a grave
difficulty for defendants at the post-conviction level".(53)

After Judge Nangle denied Troy Davis' appeal, the case moved to the next
level of federal review, the US Court of Appeals for the 11th Circuit. At
oral arguments in front of a 3-judge panel of the 11th Circuit on 7
September 2005, Judge Rosemary Barkett expressed concern that Troy Davis
had not been granted a federal hearing to present the new evidence. She
asked, "If these people say, 'I was coerced by the police,' how could
[Judge Nangle] reject that without a hearing?"(54) Judge Barkett
reportedly suggested that without the testimony of the various trial
witnesses who had now recanted, the state appeared to have no case.

However, on 26 September 2006, the 11th Circuit panel upheld Judge
Nangle's ruling, finding that "we cannot say that the district court erred
in concluding that Davis has not borne his burden to establish a viable
claim that his trial was constitutionally unfair". The Schlup gateway
remained firmly closed to Troy Davis, and AEDPA-backed finality was a step
closer. In December 2006, Troy Davis' appeal for a rehearing in front of
the full 11th Circuit court was rejected. His last hope for judicial
intervention in the regular appeals process at that point was the US
Supreme Court, which takes only a tiny percentage of the cases brought
before it.

Clemency: recognizing the possibility of human error

History shows that executive clemency is the traditional 'fail-safe'
remedy for claims of innocence based on new evidence, discovered too late
in the day to file a new trial motion US Supreme Court, 1993(55)

On 15 April 2006, President Arroyo of the Philippines ordered the
commutation of all death sentences in her country  more than 1,000  in
what is believed to be the largest such act of clemency in modern times.
Announcing her move, she said: "I wish to announce that we are changing
our policy on those who have been imposed the death penalty. We are
reducing their penalty to life imprisonment. Anyone who falls and makes
mistakes has a chance to stand up and correct the wrong he has committed."

President Arroyo's statement can be read two ways. Firstly, removing the
death penalty reinstates the possibility of rehabilitation and reform on
the part of an offender.(56) But removing the threat of execution also
opens up the possibility that any mistakes committed by the state in its
prosecution of the individual can be remedied while the prisoner is still
alive. Thus clemency is justified whether Troy Davis is guilty or innocent
of the murder of Officer Mark Allen McPhail.

The power of executive clemency exists as a failsafe against error and to
allow consideration of evidence that the courts were unable or unwilling
to reach. Clemency has been granted in a number of death penalty cases
over the years in the USA, and has become more frequent as evidence of
problems with the capital justice system has increased. In several cases,
clemency was granted on the grounds of possible innocence.(57) In some
cases, executive clemency has proven to be "the decisive step that averts
a terrible miscarriage of justice".(58) In 1994, for example, the governor
of Virginia commuted Earl Washingtons death sentence to life imprisonment.
6 years later, DNA evidence proved his innocence and Washington was
pardoned.

Support for clemency can come from many quarters, and can involve late
changes in mind on the parts of officials previously involved in the case.
One such case recently emerged in California. Appointed as a county-level
judge by the then Governor of California Ronald Reagan in 1974, Judge
Charles McGrath presided over the 1983 trial of Michael Morales at which
the defendant was sentenced to death. 23 years later, in January 2006,
Judge McGrath wrote to state Governor Arnold Schwarzenegger to appeal for
clemency for Morales. A key witness at the trial  a jailhouse informant
had testified that Morales had confessed the crime to him in jail. At the
time of the trial, Judge McGrath had found the informant's testimony to be
credible, but in his letter in 2006 to the Governor, the judge wrote that
"new information has emerged to show the evidence upon which I relied in
sentencing Mr Morales to death  [the jailhouse informants] testimony  is
false". Judge McGrath expressed his concern that Michael Morales had not
received an evidentiary hearing in federal court.(59)

Numerous witnesses, including a jailhouse informant, whose testimony was
used against Troy Davis at his trial, have since recanted or contradicted
their trial testimony. Troy Davis has never had an evidentiary hearing in
federal court on the issue. Justice surely demands that clemency be
granted.

Indeed, the risk of error surely demands a rethink on the death penalty.
In January 2007, Andrew Gossett, who was serving a 50-year prison sentence
in Texas for sexual assault, was freed after DNA evidence confirmed his
innocence. The case prompted the Dallas Morning News to speak out against
executions:

"That juries and judges are fallible is not a revelation. Human error is
an inherent part of the system. Thank goodness that in the case of Mr.
Gossett a terrible wrong has been corrected For the condemned, evidence of
an error could come too late. Lethal injections don't allow those second
chancesEven the remote possibility of a mistake is unacceptable in death
penalty cases.

Lawmakers have dismissed our calls for a death penalty moratorium. But the
frailties in the justice system that have been exposed suggest that its
time to revisit this issue. When Mr. Gossett was set free last week, newly
elected District Attorney Craig Watkins was in the courtroom. He thought
it was important to tell Mr. Gossett, 'We're sorry.'

State officials won't have that opportunity if capital punishment is meted
out incorrectly."(60)

Where is the Justice for me? A plea from Troy Davis

Where is the Justice for me? In 1989 I surrendered myself to the police
for crimes I knew I was innocent of in an effort to seek justice through
the court system in Savannah, Georgia USA. But like so many death penalty
cases, that was not my fate and I have been denied justice. During my
imprisonment I have lost more than my freedom, I lost my father and my
family has suffered terribly, many times being treated as less than human
and even as criminals. In the past I have had lawyers who refused my
input, and would not represent me in the manner that I wanted to be
represented. I have had witnesses against me threatened into making false
statements to seal my death sentence and witnesses who wanted to tell the
truth were vilified in court.

For the entire 2 years I was in jail awaiting trial I wore a handmade
cross around my neck, it gave me peace and when a news reporter made a
statement in the local news, "Cop-killer wears cross to court," the cross
was immediately taken as if I was unworthy to believe in God or him in me.
The only time my family was allowed to enter the courtroom on my behalf
was during the sentencing phase where my mother and sister had to beg for
my life and the prosecutor simply said, "I was only fit for killing."
Where is the Justice for me, when the courts have refused to allow me
relief when multiple witnesses have recanted their testimonies that they
lied against me?

Because of the Anti-Terrorism Bill, the blatant racism and bias in the
U.S. Court System, I remain on death row in spite of a compelling case of
my innocence. Finally I have a private law firm trying to help save my
life in the court system, but it is like no one wants to admit the system
made another grave mistake. Am I to be made an example of to save face?
Does anyone care about my family who has been victimized by this death
sentence for over 16 years? Does anyone care that my family has the fate
of knowing the time and manner by which I may be killed by the state of
Georgia?

I truly understand a life has been lost and I have prayed for that family
just as I pray for mine, but I am Innocent and all I ask for is a True Day
in a Just Court. If I am so guilty why do the courts deny me that? The
truth is that they have no real case; the truth is I am Innocent. Where is
the Justice for me? Troy Anthony Davis, January 2007

The Invisible Victims, by Martina Correia

My name is Martina Correia and I am on Death Row in Georgia. No I have not
murdered anybody, never even been on trial; I am on death row because that
is where my brother lives. Death Row has been for me and my family a
living nightmare. As the eldest of five children I have always been
responsible for protecting my siblings, and I keep wondering what I could
have done to go back in time or change past history.

My father died of pure depression and grief, my mother prays and prays and
prays and cries and cries and cries. Late night phone calls terrify us,
prison visits elate us, and death is always upon us. They say we are on
the side of the murderer; we have been treated at times like criminals.

We temporarily lost our place of worship, we lost friends, we lost jobs
but we never lost faith or the unconditional love of Troy, my brother. We
became the invisible victims, the tormented, the shamed; we became the
enemy of the state. I once believed in Justice, I dont anymore. My life is
a constant battle, I fight to save my brother, I fight to save myself from
cancer, I fight to protect and educate my son and I fight to see my mother
smile. It is a terrible thing to know someone you love will be killed, the
day, the hour, with years of constant torment and fear. On death row you
see the other families awaiting execution and you dont know what to say:
you wonder if their pain and suffering will be over or just added to.

My greatest fear is that in the judicial system no one really cares and my
brother will be killed by the State of Georgia. I look at my son who is
old enough to ask the question, "Why do they want to kill my Uncle Troy?"
I don't have a good answer. I feel at times, it would be better to die of
cancer than to live and see my brother executed for a crime he did not
commit. I live day to day thinking of death and dying, I think to myself,
"What can I do to save Troy?" or even, "Will I be alive to see him walk
free?"

My name is Martina and I am on Death Row.

Martina Correia, January 2007

Please appeal for clemency for Troy Davis

In Georgia, the clemency authority is the State Board of Pardons and
Paroles. In its annual report of 2005, the Board describes its task thus:

"The Parole Board has the sole constitutional authority to reduce capital
punishment cases to a sentence of life or life without parole. Once a
death row inmate exhausts his judicial appeals an execution date is set.
At that time, the condemned inmate can request an appointment before the
Board to ask for executive clemency. Prior to the appointment, the Board
staff compiles an exhaustive set of reports about the circumstances of the
offense, criminal history and life of the condemned inmate. Each Board
member reviews the file and the appointment is scheduled to allow those in
favour of clemency to appear before the entire Board. Usually the
appointment is attended by the inmates attorneys, family or friends. The
condemned inmate does not attend the appointment. At the conclusion of the
appointment, Board members each cast a confidential vote on the request to
commute the death sentence. A majority of 3 affirmative votes is required
to commute a death sentence."(61)

Since executions resumed in the USA in January 1977, 39 prisoners have
been put to death in Georgia (by 1 February 2007). In the same period, 6
prisoners have been granted clemency.(62)

Recommendations for appeals

Using the information in this report, please write to the Georgia parole
board, in your own words, to seek clemency for Troy Davis. If possible,
write a separate appeal to each of the individual Board members. If you
can only write one appeal, please send it to the Chairperson. Please write
in English. We recommend that your appeals be no more than 2 pages in
length. The following is a guide only:

 explaining that you are not seeking to condone the murder of Officer Mark
Allen McPhail, or to downplay the seriousness of the crime or the
suffering caused;

 explaining that you are writing to seek clemency for Troy Anthony Davis,
whose judicial appeals are almost exhausted;

 noting that almost all of the witnesses who testimony was used against
Troy Davis at his trial have since recanted or contradicted their trial
testimony;

 noting the large number of wrongful convictions in capital cases that
have been uncovered in the USA since 1976;

 noting that unreliability of witness testimony has been one of the
contributing factors in numerous of these cases;

 expressing concern that Troy Davis has not had a hearing in federal court
on the reliability of the witness testimony used against him at trial;

 noting that the power of clemency in capital cases exists as a failsafe
against irreversible error that the courts have been unable or unwilling
to remedy;

 noting that numerous death row inmates whose judicial appeals have been
exhausted have received clemency since 1977 in the USA on the grounds of
doubts about their guilt (see footnote 57);

 calling on the Board to commute the death sentence of Troy Davis.

Board members

- Garland R. Hunt, Esq. (Chairperson)

- L. Gale Buckner (Vice Chair)

- Garfield Hammonds, Jr.

- Robert E. Keller

- Milton E. Nix, Jr.

Address

State Board of Pardons and Paroles

2 Martin Luther King, Jr. Drive, SE

Suite 458, Balcony Level, East Tower

Atlanta, Georgia 30334-4909

USA

Fax: +1 404 651 8502

Email: Webmaster at pap.state.ga.us

Salutation, as appropriate: Dear Chairperson Hunt / Vice Chair Buckner /
Board Member Hammonds, Keller, Nix

Please organize as many appeals as you can. If you can organize a
petition, collecting signatures supporting clemency for Troy Davis to send
to the Board, please do so. Please check with the AI Section in your
country or the International Secretariat, if sending appeals after 30 June
2007.

********

(1) Chicago Sun-Times, 12 May 2004, cited in The Death Penalty in 2004:
Year End Report, Death Penalty Information Center,
http://www.deathpenaltyinfo.org/DPICyer04.pdf.

(2) United Nations Safeguards guaranteeing the rights of those facing the
death penalty. 1984.

(3) Herrera v. Collins, 506 U.S. 390 (1993), opinion written by Chief
Justice Rehnquist.

(4) Judge Carolyn King, US Court of Appeals for the Fifth Circuit, Address
to Red Mass, Corpus Christi Cathedral, Texas, 4 October 2006. Speech
available from South Texas Catholic News, 20 October 2006,
http://www.goccn.org/stc/articles/article.cfm?article=550.

(5) Life, death and uncertainty, by US District Judge Michael Ponsor,
Boston Globe, 8 July 2001.

(6) See USA: The experiment that failed. A reflection on 30 years of
executions, AI Index: AMR 51/011/2007, 16 January 2007,
http://web.amnesty.org/library/Index/ENGAMR510112007.

(7) A Broken System: Error Rates in Capital Cases, 1973-1995, conducted at
New Yorks Columbia Law School by James S. Liebman, Jeffrey Fagan and
Valerie West, published 12 June 2000.

(8) A recent study of legal representation in death penalty cases in
Virginia, Alabama, Mississippi and Georgia concluded that in the first
three of these states, "poor representation is a result of official
policy. The states pay no more than a pittance to help lawyers defend
their clients, and none requires that well-trained attorneys handle death
cases. Georgia had a similarly inadequate system until 2005, when a
publicly funded, statewide capital defenders office began spending
whatever is necessary to scour clients backgrounds for mitigating
evidence. So far, none of that offices 46 clients has been sentenced to
death". Indefensible? Lawyers in key death penalty cases often fall short.
McClatchy Special Report, 21 January 2007,

http://www.realcities.com/mld/krwashington/news/special_packages/death_penalty//

(9) New Jersey Death Penalty Study Commission Report, January 2007. The
report is available at
http://www.njleg.state.nj.us/committees/njdeath_penalty.asp.

(10) Kansas v. Marsh, 26 June 2006, Justice Scalia concurring.

(11) Death Penalty Information Center, see
http://www.deathpenaltyinfo.org/article.php?scid=6&did=110.

(12) Page 60, Hugo Bedau and Michael L. Radelet, Miscarriages of justice
in potentially capital cases, Stanford Law Review, Volume 40, pages 21 to
179.

(13) Aaron Patterson, Madison Hobley, Leroy Orange and Stanley Howard.
Each had spent at least 15 years on death row.

(14) See USA: New Jersey Death Penalty Study Commission recommends
abolition, AI Index: AMR 51/003/2007, 3 January 2007,
http://web.amnesty.org/library/Index/ENGAMR510032007.

(15) See Capital punishments deathly injustice, Los Angeles Times, 28
August 1978, available at http://www.deathpenaltyinfo.org/EarlCharles.pdf.

(16) USA: Joseph Amrine: Facing execution on tainted testimony, AMR
51/085/2002, June 2002,
http://web.amnesty.org/library/index/engamr510852002.

(17) See, for example, Did Texas execute an innocent man? Houston
Chronicle, 24 July 2006.

(18) NAACP report available at
http://www.truthinjustice.org/griffin-report.htm.

(19) USA: An appeal to President Clinton, Vice-President Gore and Governor
Bush of Texas to condemn one illegal execution and to stop another, AI
Index: AMR 51/096/2000, 15 June 2000,
http://web.amnesty.org/library/Index/ENGAMR510962000. See also, Mandy
Welch and Richard Burr, The politics of finality and the execution of the
innocent: The case of Gary Graham. In: Machinery of Death: The reality of
America's death penalty regime. Edited by David Dow and Mark Dow,
Routledge Books, 2002.

(20) Nevertheless, as well as the above cases, a number of investigations
have unearthed evidence pointing to the execution of wrongfully convicted
individuals in the USA. Journalists at the Chicago Tribune, for example,
have raised compelling evidence that Carlos DeLuna, executed in Texas in
1989 for a murder committed 6 years earlier, was innocent of the crime for
which he was put to death. See 3-part series by Steve Mills and Maurice
Possley, Chicago Tribune: 'I didn't do it. But I know who did' (25 June
2006). A phantom, or the killer? (26 June). The secret that wasn't (27
June).
http://www.chicagotribune.com/news/specials/broadband/chi-tx-htmlstory,0,7935000.htmlstory.

(21) Davis v. State (1993), affirming the conviction and death sentence.

(22) Samuel R. Gross. The risks of death: Why erroneous convictions are
common in capital cases. Buffalo Law Review, Volume 44, pages 469-500
(1996).

(23) This can be even more pronounced when the victim was white and the
perpetrator black, as in this case.

(24) Witherspoon v. Illinois, 391 U.S. 510 (1968).

(25) Wainwright v. Witt, 469 U.S. 412 (1985). In 1992, in Morgan v.
Illinois, the Court explicitly extended the Witt standard to include
proponents of the death penalty. In other words, anyone whose support for
the death penalty would "prevent or substantially impair" them from
performing his or her duties as a juror can be dismissed for cause.

(26) Report of the Special Rapporteur on extrajudicial, summary or
arbitrary executions. Addendum: Mission to the United States of America,
UN Doc. E/CN.4/198/68/Add.3, para. 147. 22 January 1998.

(27) Lockhart v. McCree, 476 U.S. 162 (1986).

(28) Ibid. Justices Marshall, Brennan and Stevens, dissenting.

(29) Mike Allen, Edward Mabry and Drue-Marie McKelton, Impact of juror
attitudes about the death penalty on juror evaluations of guilt and
punishment: A meta-analysis. Law and Human Behaviour, Volume 22, No. 6,
1998, pages 715 to 731.

(30) Marla Sandys, Stacking the deck for guilt and death: The failure of
death qualification to ensure impartiality. In: Americas experiment with
capital punishment. Edited by James R. Acker, Robert M. Bohm and Charles
S. Lanier. Carolina Academic Press, 1998.

(31) A May 2006 Gallup Poll in the USA found that when given a choice
between the sentencing options of life without parole and the death
penalty, fewer than 1/2  47 %  of respondents chose capital punishment.
This was the lowest percentage in 2 decades. 63 % of respondents said that
they believed that an innocent person had been executed in the previous 5
years. 64 % disagreed with the notion that the death penalty deters
murder. Polls in the 1980s and early 1990s indicated a majority believing
that the death penalty deterred murder.

(32) In January 2004, the Georgia parole board commuted the death sentence
of Willie James Hall on the eve of his execution. During his clemency
hearing, 6 of the jurors from the 1989 trial testified that they would
have voted for life without parole if that sentence had been an option at
the time.

(33) Paduano, A. and Stafford Smith, C., Deathly errors: Juror
misperceptions concerning parole in the imposition of the death penalty.
Columbia Human Rights Law Review, Volume 18:2, pages 211-257 (1987).

(34) See note 4, ibid.

(35) Davis v. Turpin. Transcript of proceedings before Honorable John M.
Ott, Judge, Rockdale Judicial Circuit presiding in Butts County, Georgia,
16 December 1996.

(36) Davis v. Head, Brief on behalf of the appellee, On appeal from the
United States District Court, Southern District of Georgia, Savannah
Division, In the United States Court of Appeals for the Eleventh Circuit,
14 February 2005.

(37) Convicted killer seeks to avoid verdict. The Atlanta-Journal
Constitution, 8 September 2005.

(38) The affidavit mistakenly says Oglethorpe Street rather than Avenue.

(39) Copies of all affidavits on file with Amnesty International.

(40) Trott, Stephen S. Words of warning for prosecutors using criminals as
witnesses. 47 Hastings Law Journal (1996), page 1394.

(41) His affidavit was read to him before he signed it and he stated that
it was accurate.

(42) Report of the Special Rapporteur on extrajudicial, summary or
arbitrary executions. Addendum: Mission to the United States of America,
UN Doc. E/CN.4/198/68/Add.3, para. 147. 22 January 1998.

(43) President William J. Clinton, Statement on signing the Anti-terrorism
and Effective Death Penalty Act of 1996. 24 April 1996.

(44) President William J. Clinton, Remarks on signing the Anti-terrorism
and Effective Death Penalty Act of 1996, 24 April 1996.

(45) Is fairness irrelevant? The evisceration of federal habeas corpus
review and limits on the ability of state courts to protect fundamental
rights. By Stephen B. Bright, John Randolph Tucker Lecture, Published in
Volume 54 of the Washington and Lee Law Review, page 1 (Winter 1997).

(46) Steiker, C. and Steiker, J. The effect of capital punishment on
American criminal law and policy. Judicature, Volume 89, Number 5, page
251, March-April 2006.

(47) Herrera v. Collins, 506 U.S. 390 (1993).

(48) Schlup v Delo, 513 US 298, 23 January 1995.

(49) Davis v. Head, Order. US District Court, Southern District of
Georgia, Savannah Division, 13 May 2004.

(50) 28 U.S.C.  2254 (e)(2): "If the applicant has failed to develop the
factual basis of a claim in State court proceedings, the court shall not
hold an evidentiary hearing on the claim unless the applicant shows that -
(A) the claim relies on - (i) a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable; or (ii) a factual predicate that could not have
been previously discovered through the exercise of due diligence; and (B)
the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
offense"."

(51) Witnesses recant; law stymies death row appeal. The Atlanta-Journal
Constitution, 21 September 2003.

(52) Ibid.

(53) UN Doc. E/CN.4/198/68/Add.3, para. 99.

(54) Convicted killer seeks to avoid verdict. The Atlanta-Journal
Constitution, 8 September 2005.

(55) Herrera v. Collins, 506 U.S. 390 (1993).

(56) "The death sentence must, in some measure, manifest a philosophy of
indefensible despair in its execution, accepting as it must do, that the
offender it seeks to punish is so beyond the pale of humanity as to permit
of no rehabilitation, no reform, no repentance, no inherent spectre of
hope or spirituality; nor the slightest possibility that he might one day,
successfully and deservedly be able to pursue and to enjoy the great
rights of dignity and security and the fundamental freedoms protected in
the Constitution, the exercise of which is possible only if the right to
life is not destroyed. The finality of the death penalty allows for none
of these redeeming possibilities. It annihilates the potential for their
emergence." The State v. T. Makwanyane and M. Mchunu, Constitutional Court
of the Republic of South Africa, 6 June 1995, Mahomed, J., concurring. In
any event, an execution ios incompatible with the requirement to respect
human dignity that lies at the heart of international human rights law and
which the US Supreme Court says underlies the US constitutional ban on
"cruel and unusual" punishments. "The basic concept underlying the Eighth
Amendment is nothing less than the dignity of man." Trop v. Dulles (1958).

(57) E.g. Learie Leo Alford (sentence commuted 1979, Florida); Jesse
Rutledge (1983, Florida); Doris Ann Foster (1987, Maryland); Ronald Monroe
(1989, Louisiana); Joseph Giarratano (1991, Virginia); Herbert Bassette
(1992, Virginia); Anson Avery Maynard (1992, North Carolina); Earl
Washington (1994, Virginia); Joseph Payne (1996, Virginia); Donald Paradis
(1996, Indiana); David Chandler (2001, Federal); Phillip Dewitt Smith
(2001, Oklahoma); Aaron Patterson, Madison Hobley, Leroy Orange and
Stanley Howard (2003, Illinois  all four pardoned by the governor). For
further information, see
http://www.deathpenaltyinfo.org/article.php?did=126&scid=13.

(58) Radelet, M.L. and Zsembik, B.A., Executive clemency in post-Furman
capital cases. University of Richmond Law Review, Volume 27, pages 289 to
314 (1993).

(59) Letter from Charles R. McGrath, Judge, Chambers of the Superior
Court, Ventura, California, dated 25 January 2006, available at
http://media.newsreview.com/media/sacto/2006-04-06/Judge%20McGrath%20Letter1.pdf.
In the event, Michael Morales execution was stayed, and in December 2006,
his case led to a suspension of executions in California due to a District
Courts finding of serious problems with the states lethal injection
protocols. See, USA: New Years resolution: End a cruel and outdated
punishment, AI Index: AMR 51/205/2006, 21 December 2006,
http://web.amnesty.org/library/Index/ENGAMR512052006.

(60) Reasonable Doubt: Is death row immune to DNA exonerations? Dallas
Morning News, 10 January 2007.

(61) Page 19, report available at
http://www.pap.state.ga.us/05AnnualReport.PDF.

(62) Charles Hill (1977), Freddie Davis (1988), Harold Williams (1991), on
the grounds that the death sentence was disproportional to the sentence
given to his equally or more culpable co-defendant; William Moore (1990),
reportedly on the grounds of his good conduct in prison, his remorse, his
religious conversion, and the pleas for clemency from the victim's family;
Alexander Williams (2002), on the grounds of his mental illness; Willie
James Hall (2004)  6 jurors had testified that they would have chosen life
without parole had it been an option at the trial. Hall's good conduct in
prison and no criminal record prior to the murder was also reported to be
a factor in the board's decision.

AI Index: AMR 51/023/2007 1 February 2007

(source: Amnesty International)