Troy Davis, convicted cop killer, was executed last week by the State of Georgia for the 1989 slaying of Officer Mark MacPhail. Anti-death penalty activists held Davis out as an innocent man, and repeatedly claimed that seven of the nine witnesses to the cold-blooded murder have since recanted their damning testimony. The liberal media, welcome bedfellows of those activists, blithely repeated the claims over and over, creating the impression that Davis was an innocent man and that his case proves that the death penalty is no longer acceptable public policy.
Not so fast.
Conspicuously absent from the activists’ bald assertions and the media’s “reporting,” was the fact that a federal judge held an extensive post-trial evidentiary hearing on Davis’s specific claims of innocence regarding each of those alleged recantations. Judge Moore’s written ruling, available here, undercuts and eviscerates the advocates’ claims that Davis was innocent.
Judge Moore’s ruling shows, among other things, that: Davis was present during a drive by shooting hours before the murder of Officer MacPhail; friends of Davis, who testified at trial, knew Davis to carry a handgun; that the majority of the witnesses to the crime were African-American; that officer MacPhail was white; that one of the witnesses against Davis, who did not recant, was a Lieutenant Colonel in the Air Force; and that Davis took the stand in his own trial and testified that he was present during the drive by shooting the night before the murder, and that he changed his shirt between the drive by and going to the Burger King, and that he was with two other men, at the Burger King, in the parking lot on the night Officer MacPhail was murdered. Davis blamed (by implication) his friend Mr. Coles for the murder. All witnesses at trial pointed to Davis as the shooter except for one person, who testified that Mr. Cole was the shooter.
The jury deliberated for only two hours before finding Davis guilty.
Now, two decades after the murder, Davis claims that key witnesses have recanted.
Judge Moore concluded that “Mr. Davis’s new evidence…is largely smoke and mirrors.” Furthermore, Judge Moore wrote that “The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value.”
As for the “recantation” evidence from the eyewitnesses, Judge Moore wrote that “not all recantations are created equal;” that Mr. Davis “vastly overstates the value of his evidence of innocence.” In other words, the judge ultimately determined that the overwhelming evidence of guilt produced at Mr. Davis’s trial remained intact.
More damning is this: “Of his seven ‘recantations,’ only one is a meaningful, credible recantation.” Judge Moore found that four of the remaining six recantations were “either not credible or not true recantations” and should be disregarded.
For example, one of the so-called recantations boiled down to this, according to Judge Moore: at the hearing, the eyewitness simply could not recall the facts of the murder—which happened 22 years ago—as well as he could hours after the murder when he gave his statement to the police, and when he testified at trial 21 years ago.
That is not a recantation by any stretch of the imagination. That is reality; the further in time a person gets from an event, the less he can recall about that event. Yet this is one of the blockbuster “recantations” relied upon by the anti-death penalty crowd in this case.
And here is one of the most interesting parts of Judge Moore’s ruling: “The remaining two recantations were presented under the most suspicious of circumstances, with Mr. Davis intentionally preventing the validity of the recantation from being challenged in open court through cross-examination…Worse, these witnesses were readily available—one was actually waiting in the courthouse—and Mr. Davis chose not to present their recantations as live testimony.” In other words, his lawyers avoided having their claims about these supposed “recantations” examined by a judge by avoiding having these witnesses questioned in court.
Judge Moore’s written ruling was published and made public a long time ago. Anti-death penalty activists have known about the ruling since it came out. The media had access to the ruling from the moment it was published. Neither the activists nor the media mentioned Judge’s Moore’s factual findings and conclusions of law.
They refused to mention Judge Moore’s ruling because it would have prevented them from using Troy Davis as a poster-child for their cause: abolishing the death penalty. But by failing to include crucial facts, the only cause (and credibility) they hurt is their own.
Principled opposition to the death penalty requires opposing the execution of any condemned person. So what about Lawrence Brewer? On the same night that Troy Davis was executed, the State of Texas executed the convicted murderer and white supremacist. Brewer and two other sadistic white supremacists viciously murdered African-American James Byrd in 1989 by dragging him behind their pickup truck for two miles. Yet we didn’t hear a peep from the anti-death penalty crowd about Brewer, and whether it was unfair for him to be put to death for his crimes.
Americans have overwhelmingly approved of the death penalty in appropriate cases. Since polls have been taken on support for/against the death penalty (1936), there has been substantial support for its use. The most recent Gallop poll on the death penalty shows that 64% support its use; Rasmussen’s poll of June 2011 comes in at 63% in favor of the death penalty. Support for the death penalty has been constant over the decades: 1936 (59%); 1954 (68%); 1966 (47%); 1993 (80%); and today around 64% or higher, depending on the state.
Reasonable people can differ on whether a state should offer the death penalty as the ultimate punishment for the most serious crimes. But today, 34 states, the federal government, the military and military commissions allow for a death sentence in appropriate cases.
Those charged with capital crimes (especially) should be afforded competent and zealous defense counsel, at trial and on appeal. They should receive a fair trial, and if they don’t, their cases should be overturned. The trial should be conducted in a fair and orderly manner. And if there is a conviction, and the conviction survives all direct and collateral appeals, the sentence should be carried out, absent a pardon. That is what it means to live by the rule of law.
Here, Troy Davis received a fair trial; had competent counsel; lost his state and federal appeals; received a hearing before a federal judge, on his exact claims of innocence, and lost because the judge found his evidence nothing more than “smoke and mirrors.”
Sound public policy should be based on facts. The death penalty has been, and will continue to be debated for years to come. But those opposing the death penalty have hurt their cause in choosing to support Davis in the face of Judge Moore’s opinion thoroughly and completely discrediting Davis’s claim of innocence. Their support for Davis was based on smoke and mirrors.
