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Georgia death row inmate denied retrial

The state high court says recantations by seven witnesses are not credible.

March 18, 2008|Jenny Jarvie | Times Staff Writer

ATLANTA — The Georgia Supreme Court on Monday turned down a death row inmate's request for a new trial, even though most of the key witnesses in the case have recanted or contradicted their earlier testimony.

Troy Anthony Davis, 39, was convicted of killing a Savannah police officer after a 1991 trial based entirely on witnesses' accounts. Seven of the nine who implicated Davis have since changed their story in sworn affidavits, with several claiming they were pressured by police in their earlier statements.

In a 4-3 decision, the court ruled that the recantation testimony suffered from a "general lack of credibility." Justice Harold D. Melton, writing for the majority, said many of the witnesses who had "allegedly recanted have merely stated that they do not feel able to identify the shooter."

"We simply cannot disregard the jury's verdict in this case," Melton wrote.

In a strongly worded dissent, Chief Justice Leah Ward Sears wrote that the majority opinion was "overly rigid." Disregarding all recantation testimony, even when it offered a convincing argument that prior testimony was false, "simply defies all logic and morality," she wrote.

"In this case," Sears noted, "nearly every witness who identified Davis as the shooter at trial has now disclaimed his or her ability to do so reliably."

Davis has been on death row since 1991, when he was convicted of killing Mark Allen MacPhail, 27, an off-duty Savannah police officer working as a security guard. MacPhail was shot to death in a parking lot after rushing to help a homeless man who had been assaulted outside a bus station. With no murder weapon, prosecutors relied on witnesses to convict Davis.

Yet the case against Davis, defense attorneys say, has unraveled as the seven witnesses changed their testimony. One of the two remaining witnesses against Davis, they point out, is himself a suspect who has been incriminated by new witnesses.

"We're shocked by this decision," said Jason Ewart, Davis' defense attorney. "We've got a hard case and a close opinion -- I don't think the result should be an execution."

Ewart said he would now turn to the Georgia Board of Pardons and Paroles in a bid to win clemency for Davis.

Last July, just hours before Davis was scheduled to be executed by lethal injection, the Board of Pardons and Paroles issued a stay of execution to examine the recantations from witnesses. The Supreme Court agreed in August to hear the case.

Although recantation testimony is generally considered less credible than sworn testimony delivered at trial -- because sworn testimony is closer in time to the crimes and witnesses are under oath and cross-examined -- Davis' defense attorneys argued that the sheer number of recantations in his case necessitated a new trial.

Yet the majority of Supreme Court justices found this argument "unpersuasive." The affidavits, Melton wrote, failed to demonstrate that the witnesses' trial testimony were the "purest fabrication."

Such a strict requirement of a recantation, Ewart argued, imposed an almost impossible burden on the defense.

"You have to show they were not at the place they were supposed to be, or weren't in town when he said he was; it's not enough that they felt pressured," he said. "Recantations almost never count -- that's the standard they settled on."

The court also dismissed many of the affidavits on technical grounds -- because they were not presented sooner, for example, or had not been notarized.

"The court never considered that Mr. Davis lacked adequate legal support in the initial and critical states of his appeals," said Jared Feuer, Southern regional director of Amnesty International USA, at a news conference in Atlanta. "We are stunned that the judicial system has failed at every turn to consider the new evidence pointing to Troy Davis' innocence."

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jenny.jarvie@latimes.com

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