Death Row Appeal Denied Despite Recanted Testimony of 7 Witnesses

ATLANTA (AP) The Georgia Supreme Court denied a new trial Monday for a death row inmate convicted of killing a Savannah police officer in 1989, even though several witnesses against him recanted their testimony.

Troy Davis, 39, was a day away from being put to death last July for the fatal shooting of 27-year-old Officer Mark MacPhail when the state Board of Pardons and Paroles issued a stay of execution.

MacPhail was shot twice after he rushed to help a homeless man who had been assaulted.

Davis appealed to the state Supreme Court, which ruled Monday in a 4-3 decision that a lower court did not err in refusing to grant Davis a new trial.

Writing for the majority, Justice Harold Melton said that the high court considered the core question of whether a jury presented with Davis’ allegedly new testimony would probably find him not guilty or give him a sentence other than death.

“Most of the witnesses to the crime who have allegedly recanted have merely stated that they now do not feel able to identify the shooter,” Melton wrote.

He added that one of the witness affidavits “might actually be read so as to confirm trial testimony that Davis was the shooter.”

“We simply cannot disregard the jury’s verdict in this case,” Melton wrote.

[…]

Davis’ lawyers say seven witnesses have recanted or contradicted their testimony that they saw Davis shoot the officer, saw him assault the homeless man or heard Davis confess to the slaying.

Three people who did not testify at trial have said in affidavits that another man, Sylvester Coles, confessed to killing the officer after Davis was convicted. After the shooting, Coles identified Davis as the killer.

This case is an example of why I have a problem with the death penalty. I have seen government on every level make too many mistakes for me to continue to hold the view that the government is competent enough to execute someone convicted of a death row offense. If a person serving a life sentence is wrongfully convicted but is later determined to be not guilty of the crime, at least the wrongfully convicted person can be set free. A person wrongfully executed cannot be resurrected.

Did Troy Davis kill Officer Mark MacPhail in 1989? I have no idea; this is the first I’ve heard of the case. I do, however, have a problem with the idea that 7 witnesses could recant their testimonies and a court could decide that such a development would not warrant a new trial. Justice Harold Melton says he believes that the witness affidavits “might” still identify Davis as the shooter.

Might?

This statement in itself is very chilling. Why guess what the new evidence might say; why not allow a new jury determine if Davis was the shooter based on the remaining forensic and circumstantial evidence? If the prosecution has a strong enough case they will not need the unreliable testimony.

Which leads me to another point: eyewitness testimony has been shown to be extremely unreliable. The Innocence Project has states the following regarding eyewitness misidentification:

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.

While eyewitness testimony can be persuasive evidence before a judge or jury, 30 years of strong social science research has proven that eyewitness identification is often unreliable. Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated.

Think about it: have you ever witnessed a crime? I have. One night, I saw several young Hispanic males breaking into a vehicle in the parking lot of the apartment complex I was living in at the time. I got a very good look at the face of one of the criminals because he spotted me in my pickup. The man walked right up to my window, looked directly in my eyes, put his finger to his lips to tell me to keep quiet, and then left (I nodded “yes” because I knew I was outnumbered and didn’t know if any of them had weapons; this was a very frightening experience). Even though I got a very good look at one of them, I could not confidently pick this individual out of a lineup even if the lineup was an hour or so after the fact. No matter how hard I tried, I could not remember exactly what he looked like. I could offer a description of the man but I would not be able to make a positive I.D.

This experience forever changed what I thought about eyewitnesses. Most eyewitnesses are probably very certain they have identified the right person but are mistaken. If the prosecution’s case hinges solely on eyewitness testimony of complete strangers, the man should be set free. Unfortunately, it seems that the Georgia Supreme Court has forgotten that the burden of proof is on the state; not the other way around.

  • http://www.orderhotlunch.com Jeff Molby

    Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.

    That’s a misleading stat. The relevant stat would be the percentage of convictions based on eyewitness identification that were later overturned due to DNA testing.

  • Bill

    I have more of a problem with recanted testimony than I do with perjured testimony in the first place.

    Defense lawyers and investigators badgering the witnesses to recant, guilt trips levied on witnesses by them, and in at least one case (Culhane) false statements.

    Let us remind these recanters that their original statements were perjury and “should be prosecuted” (yes, I know about the statute of limitations).

  • http://www.thelibertypapers.org/author/tarran/ tarran

    The relevant stat would be the percentage of convictions based on eyewitness identification that were later overturned due to DNA testing.

    I don’t completely agree. A very small portion of convictions are amenable to DNA testing. The proper denominator would be the number of convictions that are subsequently tested where eyewitness identification played a role.

    The problem with examining the cases tested by the innocence project is that there will be a sampling bias: people who are innocent are much more motivates to seek out avenues for exoneration, and the innocence project will select cases that where they have a higher probability of success to focus their limited resources.

  • http://www.orderhotlunch.com Jeff Molby

    The proper denominator would be the number of convictions that are subsequently tested where eyewitness identification played a role.

    I would also include those convicts for whom DNA evidence was available, but never tested. If a convict isn’t pursuing all possible means for an acquital, it’s hard to assume he’s anything other than guilty.

    Regardless, I think we can agree that the statistic cited is pure garbarge.

  • http://www.thelibertypapers.org/author/tarran/ tarran

    I don’t think the statistic is garbage;

    If you look at a failure of a system, looking at the sources of error and their frequencies is quite useful.

    If you read a report analyzing aircraft crashes, and the report stated that cracks in the pressure hull had contributed to 75% of crashes, I doubt you would be claiming that that statistic was somehow misleading and that the important question was how many planes flew with similar cracks safely.

  • http://www.orderhotlunch.com Jeff Molby

    If you read a report analyzing aircraft crashes, and the report stated that cracks in the pressure hull had contributed to 75% of crashes, I doubt you would be claiming that that statistic was somehow misleading and that the important question was how many planes flew with similar cracks safely.

    It depends on the point you’re trying to make.
    Read that sentence again:

    Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.

    Notice that the assertion is about “wrongful convictions” (herein referred to as “apple”), yet their supporting statistic is about “convictions overturned” (herein referred to as “orange”).

    We can agree that there are some unknown number of wrongful convictions that never get overturned, right? Isn’t it quite possible that there are other unmentioned factors that bias the sample?

    And even if there aren’t, the author goes on to assert that eyewitness testimony is “often unreliable.” He didn’t offer a shred of evidence to support that statement. The eyewitness testimony could be right 99.999% of the time for all we know, because he only examined the convictions that were overturned.

    In the context that it was presented, the stat is useless at best.

  • http://www.thelibertypapers.org/author/tarran/ tarran

    The only wrongful convictions we know of are ones that are overturned. Well, that’s not completely correct; there are cases like the one that’s the focus of Stephen’s post here.

    These aren’t apples and oranges. The convictions overturned is a subset of a larger, unknown and unknowable set, all the wrongful convictions. The use of a small sample to come to conclusions concerning larger sets is the heart of “hypothesis testing” which is one of the most highly developed branches of statistics.

    You could argue that they are making conclusions about all apples from a sample of golden delicious apples, and I would agree with you. But to claim that this is apples and oranges is a bit much.

    With that being said, they are absolutely correct that eyewitness testimony can be quite unreliable. In fact some branches of eyewitness testimony are known to be often unreliable, such as identification of a stranger. There was a series of psychological experiments that demonstrated this; the researchers could consistently get witnesses to finger the wrong man as a person who committed a a simulated robbery merely through having a patsy in the crowd loudly and incorrectly describe one aspect of the thief’s appearance.

    Now, again, you could argue that the statistics they present, on their own do not back up this claim. However, the unreliability of witnesses when describing novel people or situations is well known enough that it needs no confirmation anymore than a guy talking about airplane design need to justify his assertion that air pressure can be used to calculate altitude.

  • http://www.thelibertypapers.org/author/stephen/ Stephen Littau

    Jeff:

    If you actually follow the link, you will see that TIP considers such factors as estimator variables, and system variables. TIP also has made observations about eyewitness misidentification based on the over 100 convictions they have helped overturn. If you look to the right side of the web page, you will find more outside information about the unreliability of the use of eyewitness identification: here’s an Iowa University Study and a website from one of the study’s authors Iowa State Psychology Professor Gary Wells

    If you are skeptical about TIP’s sources, do an independent Google Scholar Search on the topic from 2000 to 2008. You will find that Dr. Wells’ articles are among the top scholarly articles cited by other peer reviewed scholarly articles found by Google Scholar.

    On Table 1 of this study which interviewed 64 psychologists who had courtroom experience found in the May 2001 issue of American Psychologist, the very first of thirty variables listed in determining the reliability of an eyewitness is the stress level at the time of the event. The statement next to this variable reads as follows: “Very high levels of stress impair the accuracy of eyewitness testimony.”

    This would explain why I could not remember exactly what this man looked like even though he was looking right at me less than 2 feet away; I was scared shitless (to use a scientific term).

    The very first page of the same study states the following:

    In 1996, the National Institute of Justice reported on 28 wrongful convictions, cases in which convicted felons were exonerated by DNA evidence […] Remarkably, all of these cases contained one or more false identifications.

    This is only the tip of the iceberg. The body of research being done concerning eyewitness mistakes is growing. Read these studies as well as a few of your own and then tell me that eyewitness testimony is generally reliable enough to take someone’s freedom or someone’s life.

  • http://www.belowthebeltway.com Doug Mataconis

    Stephen,

    This case, and the issue of eyewitness testimony, reminds me of two classes I took, one in college and one in law school, where the professor engaged in an experiment that showed just how unreliable eyewitness testimony can be.

    It should be familiar to anyone who’s taken a criminal justice class of any kind.

    In both cases, we witnessed what looked like a crime (theft in one case, attempted assault in the other) but was actually a ruse between the professor and a graduate assistant. After it happened, the professor asked the class to recount details about what they saw such as:

    – The height of the person who had run into the room
    – What color hair they had.
    – How tall they were
    – Whether they were fat or thin
    – What was said

    Stuff like that.

    Without exception, everyone got at least one crucial detail about the incident completely wrong. And that was mere minutes after it happened.

    I don’t practice a lot of criminal law, but even on the civil side it became obvious to me quite early on that when someone gets up on the stand in a courtroom and is asked to recount the details of an event that happened years in the past, they usually aren’t getting everything completely right.

    In a civil case, it usually isn’t crucial because documents usually control.

    In a criminal case, where someone’s freedom or life is on the line, basing a conviction solely on the testimony of witnesses, without corroborating physical evidence seems foolish.

  • http://www.orderhotlunch.com Jeff Molby

    You could argue that they are making conclusions about all apples from a sample of golden delicious apples, and I would agree with you. But to claim that this is apples and oranges is a bit much.

    Ok, you can reduce the scale of my analogy if you like, but my point is still valid. The subset is non-random* and therefore it is not logically possible to draw conclusions about the whole from that subset; if you want to make a hypothesis from the subset and use that as the basis for further experiments on the whole, knock yourself out. You can’t, however, make conclusions.

    *Not only is it not random, it isn’t even mixed up a little. The subset is narrowly defined to only include a single class of cases.

    Now, again, you could argue that the statistics they present, on their own do not back up this claim.

    That’s what I was doing.

    With that being said, they are absolutely correct that eyewitness testimony can be quite unreliable

    If you actually follow the link, you will see that TIP considers such factors as estimator variables, and system variables. TIP also has made observations about eyewitness misidentification based on the over 100 convictions they have helped overturn.

    I don’t necessarily take issue with their conclusion. I just take issue with the way that stat was presented. It struck me as MSM-style sensationalism.

    Even if the stat did speak directly toward their conclusion, they still should have given it some context. “Played a role in more than 75%”? Ok, where does that fall in comparison to other factors? Presumably there are multiple factors in most wrongful convictions, so 75% might not even be good enough for 3rd place for all I know.

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