Troy Davis and lessons from DNA exonerations

Troy Davis and the Lessons of DNA Exonerations

Wrongful Convictions

The Case of Troy Davis: What DNA Exonerations Can Teach Us about Wrongful Convictions

When someone is wrongfully convicted of a crime they lose years of their lives to unjust sanctions, the perpetrator is free to continue victimizing others, and if it happens too often society loses faith in the criminal justice system. With the advent of DNA analysis some of this faith has been lost, because a sizeable number of death row DNA exonerations have made it clear that innocent men and women have been executed in the past. In an effort to better understand how a person might be wrongfully convicted the case of Georgia death row inmate Troy Davis is analyzed here. The prosecution's case was almost completely dependent on eyewitness testimony, despite scientific evidence showing this type of evidence is often unreliable. During the trial it emerged that the police may have used coercive methods on some witnesses, conducted flawed photo lineups, and likely developed 'tunnel vision'. Despite these shortcomings, and a significant number of recantations by several of the prosecution's witnesses, the 11th Circuit Court upheld the original conviction in 2010. All subsequent appeals for relief were denied and Troy Davis was executed on September 21, 2011.

The Case of Troy Davis: What DNA Exonerations Can Teach Us about Wrongful Convictions

Introduction

After spending nearly 25 years in prison for aggravated rape, Robert Clark was exonerated using DNA evidence and then ordered released by a Cobb County Superior Court Judge in Georgia on Thursday, December 8, 2005 (The Innocence Project, 2005). The crime scene DNA was then used to search the CODIS DNA database for possible matches and Tony Arnold was identified as the perpetrator. Despite statements to the police by Clark and another witness that placed Arnold in the victim's car a few days after the rape, Arnold was never investigated as a possible suspect. Aside from the injustice of Clark losing nearly 25 years of his life to a wrongful conviction, Arnold was free to commit at least three more rapes between 1986 and 1995.

Concern over the prevalence of wrongful convictions therefore isn't just about sending innocent persons to prison, but also about preventing future crimes. If the rate of wrongful convictions is perceived to be too high then public trust in the justice system would be also undermined. With 273 DNA-mediated exonerations since 1989 (The Innocence Project, 2011), resulting in 16 states imposing a moratorium or outright bans on the death penalty, it seems that confidence in the justice system has already eroded enough to question the use of the death penalty (Schwartz and Fitzsimmons, 2011). The true prevalence of wrongful convictions will probably be impossible to determine, since most don't involve DNA evidence or serious crimes, but reliable estimates are essential for energizing the public to push for the necessary reforms to reduce wrongful conviction rates.

The Prevalence of Wrongful Convictions

Estimating the prevalence of wrongful convictions is a methodological and political nightmare, as suggested by the results of a recent study. Zalman, Smith, and Kiger (2008) surveyed police chiefs, prosecutors, defense attorneys, and judges in Michigan for their perceptions about how common wrongful convictions were in their jurisdictions. The final overall estimate was 1-4%, despite significant disparities between the four groups.

The 1-4% wrongful conviction rate is significantly different from the 1/2% error rate arrived at approximately 20 years earlier by a similar study conducted in Ohio (reviewed by Zalman, Smith, and Kiger, 2008). The discrepancy between the two surveys were interpreted as a reflection of increasing official recognition that wrongful convictions do exist, thanks in large part to the successful use of DNA to obtain exonerations. Despite this growing awareness, nearly 20% of all respondents in the 2005/2006 survey still believed that wrongful convictions did not occur in their own jurisdictions (Zalman, Smith, and Kiger, 2008). The demographics that constituted the nonbelievers were police chiefs (41.0%), prosecutors (47.8%), and judges (5.3%), but not defense attorneys. Suspects and the accused therefore have good reason to fear the criminal justice system, not only because they will be rightfully sanctioned for any crimes they may have committed, but because the self-confidence police and prosecutors have in their ability to determine guilt or innocence has been proven to be unwarranted. The possibility that one jurisdiction will somehow be exempt from wrongful convictions when compared to others is also not credible, since the 273 DNA exonerations have occurred in 34 states (The Innocence Project, 2011).

Another way to assess the prevalence of wrongful convictions is to examine how often DNA evidence excludes potential suspects. A 1995 study examined the exclusion rates in 13 state and local laboratories, 4 private laboratories, an armed forces laboratory, and the FBI laboratory (Connors, Lundregan, Miller, and McEwen, 1996, pp. 20-21). Of the combined 21,621 DNA samples analyzed, close to 23% (~5,000) of suspects were excluded and an additional 16% (~3,460) was inconclusive because the crime scene DNA was of poor quality. Although a percentage of these exclusions probably represent the use of DNA as an investigation tool, it also reveals how often the police were wrong about a suspect's potential culpability.

Additional evidence of how often police investigators are wrong about a suspect's guilt was provided by studies showing professionals who are required to judge the guilt or innocence of a suspect based on an interview, such as polygraphers, detectives, and customs inspectors, were accurate only 45-60% of the time (Kassin and Gudjonsson, 2005, p. 27).

With 273 DNA exonerations over the past 22 years for only the most serious crimes and only in cases where DNA evidence was available, a 23% exclusion rate in forensic laboratories, and a mean accuracy rate of 54% when judging the guilt or innocence of a suspect based on an interview alone, the estimated 1-4% rate of wrongful convictions probably represents an underestimate.

Case Study: Troy Anthony Davis

Most wrongful convictions can't be overturned by DNA evidence because DNA evidence wasn't recovered from the crime scene (Gould and Leo, 2010, p. 830). However, the same factors that contribute to the wrongful convictions that were later overturned by DNA analysis would be expected to contribute to all forms of wrongful convictions. These would include placing too much weight on eyewitness testimony, improper analysis, presentation, and interpretation of forensic evidence, false confessions, the use of informants, and prosecutorial misconduct. The Troy Davis case is one such example that was in the headlines recently, because his guilt was called into question after several eyewitnesses recanted their testimony.

Background

At 11:29 P.M. On August 18, 1989 a 9-1-1 call was received by the Savannah Police Department reporting shots fired in the Cloverdale neighborhood (U.S. District Court, Savannah Division, 2010, p. 3). A party was in progress, one which Troy Davis attended for a short period between 10:00 and 11:00 P.M. Shortly afterwards the police were notified that Michael Cooper had been admitted to a local hospital for a gunshot wound he sustained as he drove away from the party in the Cloverdale neighborhood. At 1:09 A.M. The Savannah Police received another 9-1-1 call reporting a shooting behind a Burger King near the Yamacraw neighborhood. Upon arrival the police discovered that Savannah Police officer Mark Allen MacPhail had been fatally shot while working as a part-time security guard in uniform.

Although the shooting in the Cloverdale neighborhood was suspected of being related to the fatal shooting behind the Burger King, the shooter was never positively identified, thus the case against Troy Davis centered on the fatal shooting of officer MacPhail and the conviction depended almost exclusively on eyewitness testimony.

The Trial

The prosecution's case rested on the testimony of 34 eyewitnesses, while the defense called 5 witnesses and had Troy Davis testify (U.S. District Court, Savannah Division, 2010, p. 41). The specter of prosecutorial misconduct emerged during the trial, after several witnesses testified that the police conducted photo lineups improperly and used coercion and coaching during witness interviews. Despite these irregularities, it took the jury only two hours to find Troy Davis guilty of murdering a police officer, aggravated assault, obstructing a police officer, and using a gun during the commission of a felony. What follows are some highlights from the eyewitness testimony.

Eyewitness Testimony

Mr. Young was sitting with a female companion behind the Burger King when they ran out of beer, so he went to a nearby market to purchase more. During the return trip he encountered Red Coles, who demanded a beer from Mr. Young. Mr. Young refused and an argument ensued, resulting in Mr. Young sustaining an injury to the head. Who inflicted the injury depends on who the witness is, but several alleged Troy Davis was the perpetrator (U.S. District Court, Savannah Division, 2010, pp. 42-83). What was generally agreed upon by the witnesses is the same person who struck Mr. Young in the head also shot officer MacPhail. Troy Davis alleged Red Cole struck Mr. Young, while Red Cole and a few of his friends alleged Troy Davis was the assailant.

After Mr. Young was struck in the head he ran to the open drive-through window to get help and shortly afterwards officer MacPhail came from behind the Burger King building. As officer MacPhail approached the shooter he was shot in the face and fell to the ground. The shooter then fired at officer MacPhail 2-3 more times before fleeing.

Red Coles' sister, Valerie Coles Gordon, claimed that Red came to her house and changed shirts shortly before Troy Davis showed up shirtless (U.S. District Court, Savannah Division, 2010, pp. 64-67). She then testified that Troy Davis asked Red for a shirt to borrow and Red gave him the one he had been wearing. Troy Davis tried it on and then quickly removed it, before returning it to Red. The sister stated that she washed the shirt the next day.

Troy Davis claims that he never went to Red Coles' sister's house, nor borrowed a shirt (U.S. District Court, Savannah Division, 2010, pp. 79-83). According to Troy Davis, he was in a pool hall waiting to play a game when he was informed that Red Coles had started an argument with a homeless person (Mr. Young). Mr. Davis went outside to try and intervene. Red Coles reportedly told Troy Davis to "shut the hell up." A friend of Red Coles (Mr. Collins) was also staying close to the group as they moved into the parking lot behind the Burger King restaurant, but when things appeared to spiral out of control Mr. Collins turned around and began to leave (U.S. District Court, Savannah Division, 2010, pp. 59-64). Mr. Davis then testified he heard Red Coles threaten the life of Mr. Young, so he tried to intervene again and was again rebuffed by Red Coles. Troy Davis testified that at this point he started walking back to the pool hall. He then saw Mr. Collins go running by, which urged him to start jogging, and when he looked back over his shoulder he saw a police officer walking into the Burger King parking lot. When he heard the gunshots he fled from the area before walking home.

Red Coles friends agreed that Red Coles had started the argument with Mr. Young and was wearing a yellow shirt. Red Coles friends also claimed that Troy Davis had been wearing a white shirt, had struck Mr. Young, and shot officer MacPhail. Two independent witnesses claimed that Red Coles was wearing a white shirt (Tanya Johnson) and shot officer MacPhail (Joseph Williams).

Testimony Irregularities

Darrel Collins was 16 years old at the time of the shooting and claimed that during the trial he was pressured by the police to state that Troy Davis was the shooter at the Cloverdale party (U.S. District Court, Savannah Division, 2010, p. 64). Mr. Collins claims the police pressured him to make this statement by not giving him an opportunity to call an attorney, proceeding with the interrogation before his parents arrived, telling him that he was a suspect in the Cloverdale shooting, and threatening him with incarceration.

The witness Benjamin Gordon, who was 16 years old at the time of the shooting, was questioned by the police without his parents or attorney present and signed the statement without reviewing it (U.S. District Court, Savannah Division, 2010, pp. 67-68). At the trial Mr. Gordon stated that some of the things he talked about that had been included in the statement were information told to him by others (hearsay), while other information in the statement he didn't remember telling the police.

Craig Young told the court during the trial that the police had told him what to put in his statement, while yelling at him and coaching him (U.S. District Court, Savannah Division, 2010, pp. 68-70). Craig Young also admitted that Mr. Davis and he had been fighting prior to the police interrogation and went along with the police because he wanted revenge.

Harriet Murray, one of the prosecution's primary witnesses, identified Troy Davis as the assailant in her police statement (U.S. District Court, Savannah Division, 2010, pp. 44-48). During the trial she admitted that she was near-sighted, didn't recall whether she had been wearing glasses at the time of the shooting, and that contrary to what was in the police report she only told the police that Troy Davis was a member of the group that walked across the Burger King parking lot and never identified him as the shooter.

Another of the prosecution's primary witnesses, Dorothy Farrell, impeached her testimony on several occasions during cross examination (U.S. District Court, Savannah Division, 2010, pp. 56-59). She also encountered an isolated photo of Troy Davis on the seat of a police cruiser prior to being presented with the photo lineup.

The witnesses Antoine Williams and Steven Sanders both encountered photos of Troy Davis prior to being presented with a photo lineup. In the case of Mr. Williams the photo was on a wanted poster and Mr. Sanders saw the photo in the newspaper, therefore a bias of guilt would have been present.

Informants and Jailhouse Snitches

Two witnesses for the prosecution claimed Troy Davis confessed to the shooting in their presence. Jeffery Sapp stated that Troy Davis came to his house and admitted to shooting officer MacPhail (U.S. District Court, Savannah Division, 2010, pp. 73-74). Mr. Sapp also stated the Troy Davis claimed that he fired the additional shots because the officer had seen his face. During cross examination Mr. Sapp admitted to making up the statement about Mr. Davis 'finishing off' officer MacPhail to protect his identity. Mr. Sapp also admitted that he and Troy Davis were feuding at the time of the shooting, which begs the question of why would Troy Davis would seek out Mr. Sapp at all, let alone confess to a murder.

Kevin McQueen was being held in the Chatham County Jail at the same time Troy Davis was awaiting trial (U.S. District Court, Savannah Division, 2010, pp. 72-73). According to Mr. McQueen, he and Mr. Davis were playing basketball when Mr. Davis admitted to shooting officer MacPhail. During the trial Mr. McQueen claimed he was not offered any inducements by the prosecution in exchange for his testimony.

In Troy Davis' defense, his mother testified that her son was home all day following the shooting, and therefore could not have confessed to Mr. Sapp that he shot officer MacPhail (U.S. District Court, Savannah Division, 2010, p. 79).

Post-Conviction Appeal Process (U.S. District Court, Savannah Division, 2010, pp. 83-91)

1992: Motion for a new trial in the Chatham County Superior Court -- denied

1993: Appealed to the Georgia Supreme Court -- denied; Petition for writ of certiorari to the U.S. Supreme Court -- denied

1994: Petition for a writ of habeas corpus in the Georgia Superior Court resulted in an evidentiary hearing where Mr. Davis presented affidavits by six witnesses who recanted their testimony -- writ of habeas denied in 1997

2000: Appealed to the Georgia Supreme Court, claiming ineffective counsel -- denied

2001: Petition for a writ of certiorari to the U.S. Supreme Court -- denied; Petition for writ of habeas corpus in federal district court - denied

2006: Appealed district court decision to the 11th Circuit Court -- affirmed lower court's decision

2007: Petition for a writ of certiorari to the U.S. Supreme Court -- denied; Motion for new trial in Chatham County Superior Court -- denied; At this point Mr. Davis claims to have evidence proving Red Coles killed officer MacPhail, in addition to 26 innocence affidavits

2008 -- Appealed to Georgia Supreme Court -- denied; Petition for a writ of certiorari to the U.S. Supreme Court -- denied; An appeal to the Georgia State Board of Pardons and Paroles allowed Mr. Davis to present all the evidence he had acquired, including live witness testimony, but to no avail; Second habeas petition filed in the 11th Circuit Court -- denied

2009: Petition for a writ of habeas corpus to U.S. Supreme Court resulted in the court, for the first time in 50 years (Bluestein, 2011, paragraph 6), instructing the 11th Circuit to hold an evidentiary hearing to determine if the new evidence establishes Mr. Davis' innocence

The 11th Circuit Court's Consideration of Post-Conviction Evidence

On June 24, 2010 the 11th Circuit Court held a hearing to first determine the burden of proof threshold that must be reached for a conviction to be overturned by evidence presented post-conviction (U.S. District Court, Savannah Division, 2010, pp. 114-119). The threshold the court decided to use in Mr. Davis's case was "… must show clear and convincing evidence that no reasonable juror would have convicted him in the light of the new evidence" (U.S. District Court, Savannah Division, 2010, p. 119).

Although the 11th Circuit Court recognized the new standards enacted in the Anti-Terrorism and Effective Death Penalty Act (AEDPA) requires federal courts to defer to state court adjudications, except in cases where the outcome is countered by clear and convincing evidence (U.S. District Court, Savannah Division, 2010, pp. 120-125). The Court also found case law regarding this matter to be undecided, so it took a middle ground approach by granting less weight to state court adjudications than would otherwise be required by AEDPA.

The 11th Circuit Court then went through the post-conviction evidence presented by Mr. Davis (U.S. District Court, Savannah Division, 2010, pp. 125-149). This evidence contained recantations by seven of the nine state witnesses, affidavits from other witnesses who were not called to testify during the original trial, several hearsay confessions by Red Coles, and a Georgia Bureau of Investigation report concerning a comparison of the cartridge casing retrieved after the Cloverdale and Burger King shootings.

The 11th Circuit Court made clear that recantations are generally viewed with suspicion, because no one wants to be responsible for an execution. The Court then went through the recantations and gave very little weight to affidavits if the witness wasn't available for questioning by the Court. Others were discounted because the witnesses' behavior and statements were so inconsistent that they weren't credible. Recantations contradicted by trial testimony were also given less weight, as required by AEDPA. In the end, the Court found the recantations insufficient to achieve the standard of "… no reasonable juror would have convicted him in the light of the new evidence." The other evidence presented by Mr. Davis was considered by the Court to be either too general in nature or immaterial. The Court thus denied the petition for habeas relief.

Final Outcome

Once the 11th Circuit Court had denied the second petition for a writ of habeas corpus Mr. Davis attempted, but failed, to find relief from his sentence through another appeal to the Georgia State Board of Pardons and Paroles and the U.S. Supreme Court. The death sentence was carried out at 11:08 PM on September 21, 2011.

Discussion

There were at least four witnesses who testified during the trial that their police statements did not match what they said, or believed, at the time their statements were taken. Three other witnesses admitted during the trial that they had encountered photos of Troy Davis prior to viewing a police photo lineup. One saw the photo on the front seat of a police patrol car, another in a wanted poster, and the third came across the photo in a newspaper, probably in relation to the shooting incident. All three instances would have introduced a bias in favor of guilt prior to viewing the police photo lineup. Two witnesses for the prosecution were impeached during the trial, including the jailhouse snitch. These and other irregularities probably represent the police and prosecution acquiring tunnel vision when it came to Troy Davis's guilt, and may even represent prosecutorial misconduct.

Despite the obvious flaws in the trial testimonies and the considerable evidence indicating the police had tunnel vision, which the 11th Circuit Court admitted to during the second habeas hearing in 2010, this Court still used the trial testimony as the standard against which the recantations were judged. The Court found that recantations by witnesses that lied during the trial can't be trusted, hearsay confessions presented at trial outweigh hearsay confessions discovered post-conviction, and recantations in the form of an affidavit only (witness not present during the habeas hearing) cannot overturn trial testimony. The Court's hesitance to put too much weight on the recantations is based on a recognition that some witnesses don't want to be responsible for someone's execution, yet the trial testimony suggested witnesses may have been influenced by a fear of reprisal from Red Coles should they testify against him and that Red Coles had more 'friends' who were willing to lie in court.

The standard used by the 11th Circuit Court to weigh the recantations and other evidence was "… no reasonable juror would have convicted him in the light of the new evidence." Jurors confronted with evidence of a crime must be convinced beyond a reasonable doubt before returning a guilty verdict. The question the 11th Circuit Court should have entertained is whether the post-conviction evidence, in addition to the trial testimony and all the problems associated with it, would have been sufficient to lead a reasonable juror to become convinced of Troy Davis's guilt beyond a reasonable doubt. Maybe I'm not a reasonable person, but I have doubts about Troy Davis's guilt, especially when the sentence is death (Acker, 2009).