Witnesses recant; law stymies death row appeal

The Atlanta Journal-Constitution September 21, 2003

By Bill Rankin and Alan Judd

Savannah --- Outside the Greyhound bus station on a summer night in 1989, people scattered in every direction. One man, reeling after being pistol-whipped, wailed for police.

Moments later a young Savannah police officer appeared and was shot to death before he could draw his gun. The killer, wearing what a witness called a "little smirky-like smile," then stood over the fallen officer and fired again and again.

Within days, police charged Troy Anthony Davis with killing Officer Mark Allen MacPhail. In August 1991, a jury convicted Davis and sentenced him to death.

Now six of the nine prosecution witnesses who implicated Davis or named him as the killer have renounced much of the testimony used to convict him. But these recantations may never be heard in court. And Davis could be executed without ever presenting his new evidence.

Davis' appeal has been stifled by the federal Antiterrorism and Effective Death Penalty Act of 1996, passed to streamline what critics regarded as interminable appeals of death sentences.

Citing that law, attorneys for the state contend Davis' new evidence cannot be considered because he didn't present it years ago when his appeal was in the state courts. A federal judge in Savannah has agreed, saying Davis failed to offer the evidence during the time frame allowed under the 1996 law.

That law has put Davis in a seemingly unwinnable situation. His lawyers say five of the six witnesses did not recant their testimony until after his state appeals had been exhausted. By then, it was too late under the new rules for the court to consider the recantations. The lawyers say a lack of funding made it impossible to track these key witnesses down any sooner.

Georgia is the only state that does not guarantee death row inmates a lawyer for a crucial phase of their appeals. In Davis' case, the state provided little assistance, and while he was seeking relief in Georgia courts, the legal center that represented him lost its federal funding. Other states either appoint and pay defense lawyers or employ full-time lawyers to represent inmates.

Congress passed the 1996 law partly in response to the Oklahoma City bombing of the previous year. But its primary purpose was to make federal courts defer more to the judgment of state courts in death penalty appeals. Because delays almost always benefit prisoners on death row, Congress sought to prevent appeals from being drawn out.

Sen. Orrin Hatch (R-Utah), a primary sponsor of the law, said after its passage, "At long last . . . we are about to curb these endless, frivolous appeals of death sentences."

Since the law's passage, however, a debate has emerged in the 38 states that allow death sentences --- where 111 inmates, including six from Georgia, have been freed from death row since 1973, often because new evidence came to light years after their trial.

Davis' case highlights the central argument in this debate: Is justice better served by allowing appeals to linger for decades, or by enforcing rigid deadlines for new evidence that might prevent a wrongful execution?

Georgia officials contend Davis' defense lawyers had more than enough time to turn up new witnesses.

"All these claims could have been litigated" at a 1996 evidentiary hearing, said Russ Willard, a spokesman for the state attorney general's office. Davis' lawyers "had the opportunity to explore this and chose not to."

Regardless of the recantations, Willard said, "The state of Georgia has no problem pressing forward with carrying out the sentence against Troy Davis."

Experts in criminal defense, though, say the 1996 law can be a barrier to justice.

The law "creates a gap where you can have somebody who is probably innocent, but you can't get a hearing to prove it," said Chris Johnson, New Hampshire's chief appellate defender. "The system isn't, at this point, trying to come to grips with whether he is innocent or not. He might be or he might not be. But that's not what the system is asking anymore. It's only asking what did his lawyers file or say many years ago."

Intimidation claims

The new evidence in Davis' case comes from many of the witnesses whose testimony was most damaging to him.

Two of those witnesses testified that on Aug. 19, 1989, they saw Davis shoot and kill MacPhail. Another blamed Davis for the pistol whipping that led to the shooting in a Burger King parking lot next to the Greyhound station.

Three others said Davis later admitted killing MacPhail, a 27-year-old former U.S. Army Ranger with a wife and two young children.

Davis, who was 20, had a conviction for carrying a concealed weapon. On the street, he was known as "RAH," for "Rough as Hell." Earlier on the night MacPhail died, authorities say, Davis had shot a man outside a neighborhood pool party with the same gun that killed the officer.

Most of the witnesses who have recanted their testimony claim police detectives, intent on getting Davis, intimidated them into implicating him. Several said they testified falsely because they feared the consequences of contradicting their earlier statements to police. One said two lawyers advised her she could go to prison for perjury if she changed her story.

During Davis' trial, detectives denied pressuring witnesses. Savannah police spokesman Bucky Burnsed declined recently to address the witnesses' allegations.

One witness who identified Davis as MacPhail's killer was Antione Williams. But last year Williams signed a sworn statement saying he had "no idea what the person who shot the officer looks like."

In a recent interview, Williams said he did not want to testify at the trial but that authorities told him he must.

When the shooting started, Williams said, "I didn't see the face. I saw the gun. I was too busy ducking, for my own safety."

Another witness, Dorothy Ferrell, had picked out Davis' photo as the killer.

"Well, I'm real sure, positive sure, that that is him and, you know, it's not a mistaken identity," Ferrell testified.

But in a Nov. 29, 2000, affidavit bearing her signature, Ferrell said: "I don't know which of the guys did the shooting because I didn't see that part. . . . 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 was still scared that if I didn't cooperate with the detective, then he might find a way to have me locked up again," Ferrell, who was on parole in 1989, said in the affidavit.

Ferrell, now serving six years in prison for forgery, credit card theft and shoplifting, recently declined to discuss the affidavit with a reporter, except to deny having talked with Davis' lawyers.

But Carol Gray, a former lawyer for Davis, said she took the sworn statement from Ferrell. David Mack, an investigator for Davis' lawyers, said he also was present when Ferrell signed it.

When Ferrell said she was pressured to implicate Davis, "I thought, 'Wow, that's powerful information,' " said Gray, now a public defender in Massachusetts. "She was one of the most important witnesses against him."

Of the three men who said Davis confessed to killing MacPhail, two said they testified under police pressure.

"When it came time for Troy's 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, "Jeffrey Sapp, one of these two men, said in an affidavit signed Feb. 9.

In a recent interview, Sapp said, "None of that [testimony] was true."

The third man now says he testified falsely out of spite because Davis spit in his face during a jailhouse fight.

Davis' lawyers have interviewed just one of the three other key eyewitnesses: Harriett Murray, who testified that she saw Davis blindside her boyfriend, striking him in the face with a pistol, then shoot MacPhail. Now her story is more ambiguous: In a statement last year to defense lawyers, she still said her boyfriend's assailant had killed the officer, but she no longer named Davis.

One of the two remaining witnesses, Stephen Sanders, was at the Burger King with Air Force buddies but told police he wouldn't recognize anyone at the scene except by their clothes. During the trial, though, he identified Davis as the killer.

"You don't forget someone that stands over and shoots someone," Sanders testified.

Recent attempts to reach Sanders were unsuccessful. His mother said he did not want to discuss the matter.

The other witness, Sylvester "Red" Coles, went to the police shortly after MacPhail's death and blamed Davis for the pistol whipping that preceded the shooting. Coles' statement made Davis the prime suspect.

Davis' lawyers, however, allege in court motions that Coles is the real killer. They note that Coles didn't tell police at first that he had been carrying a .38-caliber handgun --- the same caliber as the weapon that killed MacPhail.

Only later did Coles tell police he had had a .38, which he said he gave to a friend shortly before MacPhail was shot. He said he never saw the gun again.

Affidavits filed in Davis' appeal include statements from three people who say Coles confessed to killing MacPhail. One of them, Anthony Hargrove, said that about a year after MacPhail was killed, "Red said he killed a policeman and a guy named Troy took the fall for it."

During Davis' trial, Coles steadfastly denied killing MacPhail. Coles did not return telephone calls after a number of messages seeking comment were left with his sister in Savannah.

Pressure to testify

Courts have long viewed recantations with skepticism. Judges, eager to achieve finality, have expressed concerns about witnesses being intimidated or feeling remorse after testifying against a friend.

As it now stands, the new evidence in Davis' case will not be considered. U.S. District Judge John Nangle in Savannah ruled March 10 that Davis was not entitled to a hearing on the matter.

The primary obstacle, Nangle noted, is that the 1996 law erected substantial hurdles to an inmate's getting a hearing on a habeas corpus petition in federal court. Habeas petitions are civil lawsuits that claim a defendant's constitutional rights were violated.

State prisoners must file these new claims in state courts before pursuing them in federal court. In Georgia, indigent death row inmates rely on volunteer lawyers or a cash-strapped nonprofit agency known as the Georgia Appellate Practice and Educational Resource Center. A resource center attorney represented Davis.

Under the 1996 law, Davis first must demonstrate to a federal court that he had a good reason for not presenting the recantation evidence during his state appeal. He also must show that no reasonable juror would convict him after being presented with the new evidence.

Nangle's ruling never addressed the merits of the new evidence. Instead, he said Davis could have developed such testimony before he appealed to federal court.

The ruling comes as no surprise to Ted Blumoff, a criminal law professor at Mercer University.

"Congress has set an incredibly high bar," Blumoff said. "Even if your evidence is clear, often you can't get a court to consider its merits. It's incredibly difficult."

In court motions, Davis' lawyers said there were good reasons for the delay in obtaining new evidence.

In late 1995, at a critical point in Davis' state appeal, Congress withdrew funding of centers set up to represent death row inmates. The Georgia resource center's $1 million annual budget was slashed to $300,000, and its staff of eight lawyers reduced to two. They were assigned to work on 80 death row cases.

At that time Davis' lawyer left the center, which twice had to move to cheaper offices. Then the center focused its energies on a client whose appeal had been accepted by the U.S. Supreme Court.

Money became issue

Meanwhile, visiting Butts County Superior Court Judge John Ott, who was hearing Davis' state appeal, denied requests for a continuance and for money to investigate his case.

Beth Wells, one of the center's two lawyers at the time, said it didn't have enough money to meaningfully represent its clients.

"I desperately tried to effectively represent Mr. Davis during this period, "Wells said in an affidavit, "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."

But Nangle ruled that Georgia death row inmates have no right to money to help litigate their habeas corpus appeals. A lack of funding, Nangle added, does not excuse Davis from having to meet the tougher standards of the 1996 federal law.

Nangle is expected to rule soon on other aspects of Davis' federal appeal.

On Friday, Davis' new lawyer, Tom Dunn, said he would file a motion arguing that because Davis "is actually innocent," Nangle should allow an exception to the barriers posed by the 1996 law. Otherwise, Dunn said, he would ask Nangle to temporarily suspend the federal appeals process and permit him to ask the state courts to consider the recantation testimony.

State prison officials declined to allow Davis to be interviewed.

His inability to get a hearing frustrates his sister, Martina Correia.

"Just about everyone they used to testify against my brother at trial were a parade of liars and criminals," Correia said. "As long as they were there to lie against him on behalf of the state, they were totally credible. But now that they've admitted they lied, they are not credible. I'm infuriated."

Dunn said his client's claims of innocence were compelling and should be considered by the federal courts.

"To execute him under these circumstances," Dunn said, "would be the quintessential miscarriage of justice."

On ajc.com

* Compare what witnesses said then and now about the murder of Mark Allen MacPhail.

GRAPHIC: Graphic: HOW DEATH ROW APPEALS WORK Prisoners sentenced to death in Georgia are entitled to a three-stage appeals process that typically lasts a decade or more. They are entitled to an attorney in the first and third stages, but Georgia is the only state that does not provide a lawyer in the second stage. Here's how it works:

PHASE 1

An inmate's first appeal must be based on the court record of the trial and pretrial proceedings. An issue may be considered on appeal only if an inmate's lawyer raised it before or during trial.

Trial: Conviction and sentence

Appeal to Georgia Supreme Court: Court must hear an inmate's first appeal.

Appeal to U.S. Supreme Court: If the court denies the appeal, the inmate may try another avenue of appeal.

PHASE 2

An inmate files a petition of habeas corpus challenging the conviction or sentence on constitutional grounds. The inmate may present new evidence.

Superior Court judge rules on habeas corpus petition

Appeal to Georgia Supreme Court: May reject petition without a hearing.

Appeal to U.S. Supreme Court: May reject petition without a hearing. At this point the inmate may try the third avenue of appeal.

PHASE 3

A death row inmate may ask the federal courts to consider how the state courts resolved constitutional issues in the second phase. New evidence may be presented only in limited circumstances.

U.S. district judge rules on the petition

Appeal to 11th U.S. Circuit Court of Appeals: The court of appeals in Atlanta has always held hearings on these claims.

Appeal to U.S. Supreme Court: May reject petition without a hearing.

May seek clemency from Georgia's parole board.

Source: Staff research

CHUCK BLEVINS / Staff;

Photo: Troy Davis and his youngest sister, Ebony Davis, were photographed during his time on Georgia's death row. / Family photo;

Photo: Like other relatives, Martina Correia has stood by her brother, Troy Davis, since his arrest in the 1989 cop killing. She sits in her Savannah home with stuffed animals that Davis has made while on death row. / STEPHEN MORTON / Special;

Photo: Troy Davis' state appeals have been exhausted.; Photo: Officer Mark Allen MacPhail was killed in 1989 but his killer's ID may be in doubt.
Source: The Atlanta Journal-Constitution