Troy Davis Appeal Denied – Execution Date Could Loom

The U.S. Supreme Court has declined to hear Troy Davis’ appeals and set the stage for him to possibly face a fourth execution date.  Davis will not be allowed to challenge the August 2010 ruling of the federal district court judge that he failed to establish his innocence, nor will he be able to challenge the standard used to make that ruling.

Doubts about Davis’ guilt, of course, have not been resolved, as most of the witnesses used to convict him continue to maintain that their trial testimony was false and, in many cases, coerced by Savannah police.  With such witnesses as virtually the only evidence, the case against Troy Davis was always thin, but, ironically, that has meant that, once convicted, Davis has had little to drawn on to prove his innocence.  Amnesty International opposes the death penalty in all cases, but, especially in this case, where the evidence available to establish either guilt or innocence is so flimsy, an execution would be a terrible miscarriage of justice.

Will Gov. Schwarzenegger Grant Clemency?

Photo by Justin Sullivan/Getty Images

Kevin Cooper has been on death row in California for 25 years. There are major unresolved doubts about his guilt and many, including most recently New York Times columnist Nicholas Kristof, have called on outgoing Governor Arnold Schwarzenegger to grant him clemency and commute his sentence. 

The crime was undoubtedly heinous. Three members of a family (Douglas, Peggy and 11-year-old Jessica Ryen) and their 10-year-old houseguest (Christopher Hughes) were brutally murdered. But the one survivor, 8-year-old Joshua Ryen, originally said the attackers were 3 or 4 white men, and, seeing Kevin Cooper on TV, said Cooper (who is African American) was not the killer.

During the course of Cooper’s appeals, a dozen federal judges have disparaged the way his case has been handled. Important tests on physical evidence, five Ninth Circuit court judges wrote in a stinging dissent, were thoroughly botched by the federal district court:

“There is no way to say this politely. The district court failed to provide Cooper a fair hearing and … imposed unreasonable conditions on the testing …”

These judges pointed out that a test result the district court refused to consider suggested evidence had been planted, and concluded that Cooper “is probably innocent of the crimes for which the State of California is about to execute him.”

The handling of evidence in this case has been suspect from the beginning.  The reliability of Cooper’s conviction can never be guaranteed with any degree of confidence. Here at Amnesty International, we oppose all executions, no matter the circumstance, but even death penalty supporters should oppose putting someone to death when you can’t be sure they are guilty.

As in the case of Kevin Keith, when Ohio’s Governor granted him clemency despite believing he was probably guilty, and just as should happen for Troy Davis, whose conviction relied almost exclusively on shaky witness testimony, doubts about guilt should lead executives to grant clemency, if the courts can’t (or won’t) intervene.

Help us call on Governor Schwarzenegger to do just that in this case.

The Four Biggest Death Penalty Trends in 2010

Execution witness viewing room (c) Scott Langley

The Death Penalty Information Center released its Year End Report today.  While there were no major turning points for the U.S. death penalty in 2010, the unworkable and degrading nature of capital punishment continued to reveal itself throughout the year.  There were lots of executions early – the first three executions took place on the same day, January 7 – but the pace slowed considerably, and the last two months of the year saw only two executions total.  There were 46 executions in all, in twelve different states.  Here are four major themes that emerged in 2010.

1. TEXAS AND OHIO LEAD THE (WRONG) WAY:  Texas, as usual, led the way with 17 executions (though this was significantly down from last year), while Ohio put 8 men to death.  Ohio’s execution proliferation caused one judge, Ohio Supreme Court Justice Paul E. Pfeifer, who also happens to be one of the people who wrote Ohio’s death penalty law, to worry that his state was becoming too much like Texas, and to call for all death sentences in the state to get a second look.  He told the Columbus Dispatch: “There are probably few people in Ohio that are proud of the fact we are executing people at the same pace as Texas.”

No such second guessing was allowed in Texas, where a hearing looking into whether Cameron Todd Willingham might have been wrongfully executed and another hearing considering whether the danger of executing the innocent made Texas’ death penalty unconstitutional were both put on ice by state appeals courts. One or both of these important hearings could resume in 2011, but it is more likely that the Texas death penalty will continue to skate by without serious examination, despite the exonerations and wrongful executions we already know have happened.  (Silver lining: The Texas Coalition to Abolish the Death Penalty reports that there were just 8 death sentences in the Lone Star State in 2010, the lowest since capital punishment was re-instated in 1976.)

SEE THE REST OF THIS POST

Is Texas Death Penalty Unconstitutional?

That’s the question that District Judge Kevin Fine in Houston will be deciding in the next couple of weeks.  A hearing in the case of Texas v. Green, starting Monday, Dec. 6, will put the Lone Star State’s capital punishment system on trial, and by all accounts it will be a wide-ranging affair.  Evidence of the sentencing and execution of innocent men, the use of bogus science, and other egregious mistakes and examples of general incompetence will be considered to determine if the death penalty, as currently administered in Texas, is too prone to error to be allowed to continue.  (Green’s challenge to the Texas death penalty is here.)

The constitutionality of the death penalty in principle is NOT under consideration, just the way it is practiced.  The cases of Claude Jones, Cameron Todd Willingham, and Ernest Ray Willis will among the primary examples of how deeply flawed the practice of Texas capital punishment has become.  Well-intentioned reform efforts from, for example, the Texas Forensic Science Commission, have been smothered by political pressure, so maybe the courts can be the avenue for serious investigations into the major malfunctions of the Texas death penalty.

The state’s judicial system, with judges elected all the way up to and including the highest court, has not been known for courageous critical examinations of Texas justice, but evidence of wrongful convictions, wrongful death sentences, and wrongful executions may have – at last — become impossible to ignore or sweep under the rug.

Whatever the outcome of this hearing, it will be a welcome ray of sunlight on the dismally dysfunctional Texas death penalty.

Scent Lineup Not Necessary as Texas Prosecutors Declare Anthony Graves Innocent

Last year, Texas prosecutors wanted to use a “scent lineup” in a desperate attempt to generate new evidence against Anthony Graves, whose death sentence had been overturned in 2006. “Scent lineups” are a ridiculous form of junk science where dogs match a scent from a crime scene with a scent from a suspect (in this case the evidence from the crime scene was 17 years old, had been stored – actually lost – for years in an old unused jail cell, and came from a house that was burned to the ground).

Fortunately this year, Bill Parham, the new DA for Washington and Burleson counties, and special prosecutor Kelly Siegler took a hard 5-month long look at the case.  This refreshingly straightforward statement from Siegler says it all:  

“After months of investigation and talking to every witness who’s ever been involved in this case, and people who’ve never been talked to before, after looking under every rock we could find, we found not one piece of credible evidence that links Anthony Graves to the commission of this capital murder.  This is not a case where the evidence went south with time or witnesses passed away or we just couldn’t make the case anymore. He is an innocent man.”

So, on Wednesday, October 27, Anthony Graves became the 139th person exonerated from US death rows since 1973 and the 12th exoneree from Texas. 

But how did he end up on death row in the first place?

Partly, it was because the prosecutor, Charles Sebesta, elicited false statements and withheld evidence that would have helped Graves’ case.  But mostly, Graves’ conviction was based on a statement from the actual killer, Robert Carter.  Carter later recanted, and continued to insist that Graves was innocent up to and including the moment he (Carter) was executed.  After being tied down in the Texas death chamber, using some of his last words, Carter said:  “Anthony Graves had nothing to do with it. … I lied on him in court.”

After the conviction was reversed, new prosecutors still attempted to re-try him.  The new judge (whose father tried the original case) allowed Carter’s statement to be used as evidence, even though Carter had retracted it multiple times and was no longer available to testify or be cross-examined (the state having killed him). Then, there was the lost evidence that was found, and the proposed “scent lineups” … But the responsible efforts of DA Parham and special prosecutor Siegler brought Anthony Graves’ legal nightmare to an end, after 16 years in prison for a crime he did not commit.

So Inappropriate

Buried amidst the legal documents in Judge William T. Moore’s Troy Davis files is a letter from an ordinary Georgia citizen, a letter Judge Moore apparently asked his clerk to include in the docket.  It says simply:

When so much is contested, the penalty of death seems so inappropriate.

That makes sense to me.

The letter writer correctly observes that Troy Davis’ June evidentiary hearing settled nothing.  Witness testimony was all that was available, and, with no physical or scientific evidence, there was no foolproof way to resolve the conflicting stories and accounts that have been the major feature of this case for 20 years.  As a new Amnesty International short report makes clear, the Troy Davis case remains “less than ironclad”, and to carry out an execution under those circumstances would be a grave injustice.

Troy Davis was unsuccessful in proving his innocence before Judge Moore.  He faced an “extraordinarily high” burden of proof devised by the judge as part of his ruling that executing the innocent would be unconstitutional.  (The judge’s opinion was very long and issued in two parts; it can be found here and here.)   The judge found that “most reasonable jurors” would still vote to convict Davis; but this of course suggests that some reasonable jurors would vote to acquit.  It takes a unanimous jury to pass a death sentence in Georgia.

As the Amnesty report concludes:

Doubt still exists. This should be enough for even a death penalty supporter to oppose the irrevocable step of execution.

Troy Davis Petition Denied

Today Judge William T. Moore, Jr., ruled that Troy Davis did not “clearly establish” his innocence at the hearing held in Savannah on June 23-24.  In a welcome development, Judge Moore did rule that it would be unconstitutional to execute an innocent person.

At the hearing, which was not a new trial, Troy Davis was still presumed guilty, and, with only witness recantations and no scientific evidence like DNA, he was unable to meet the very high standard set to prove his innocence.

The hearing did  not erase doubts about Troy Davis’ guilt; for example four witnesses testified under oath that they lied at Troy’s trial and others implicated the alternative suspect.

For the moment, Troy’s death sentence stands, but an appeal of this ruling is likely, and we will post more details as they emerge.

Can/Will Oklahoma Stop this Execution?

Oklahoma Governor Brad Henry has granted two month-long reprieves  for Jeffrey David Matthews.  Matthews’ case is deeply troubling,  but the Oklahoma Board of Pardons and Paroles voted 3-2 against commuting the death sentence, leaving the Governor with limited options.  Today, the Board refused to reconsider its vote, and Matthews is still set for execution next Tuesday, August 17.

Of the many disturbing aspects of Matthews’ case, the fact that he might be innocent certainly stands out.  Matthews was convicted largely on the statements of a star witness who has since recanted his trial testimony.  That witness, Tracy Dyer, alleged that he was beaten and threatened with death by prison guards if he didn’t cooperate in the case against Matthews.  A former Deputy Sheriff who took part in that investigation has stated that it was “sloppy” and that some of the evidence obtained was “suspicious”, and that he has seen another deputy “physically and verbally abuse prisoners many times.”

Governor Henry cannot grant clemency without a change in the Board’s vote, but he can use his power and influence, as chief executive of the state, to strongly urge the Board to reconsider.  And we can strongly urge the Governor to do just that.

The Distinctive Vocabulary of a New York Lawyer

Back when I lived in Texas there was an TV ad (it may have run nationally) for a certain picante sauce made in San Antonio.  In the ad, a cook for a bunch of cowboys sitting around a campfire makes the mistake of using a picante sauce made in … New York City!  The last line of dialogue is, “Get a rope!”  Ha ha ha.  You used a New York hot sauce, therefore we will kill you.

The new Chairman of the Texas Forensics Science Commission demonstrated much the same mentality when he dismissed attention on the case of Cameron Willingham (executed in 2004 despite a severely flawed arson investigation) as a political tactic cooked up by “New York lawyers.”

Today, it was revealed that he used the same label for a Dallas Morning News reporter who dared to submit to him a list of questions about the Commission’s handling of the Willingham affair.  “The questions have the distinctive vocabulary of a New York lawyer,” Mr. Bradley wrote before refusing to provide any answers.

Mr. Bradley just can’t understand why New York lawyers (and Dallas reporters who sound like them) are so obsessed with the quality of arson investigations that have been used to convict hundreds of Texans, and may have sent one wrongly to his death.

Flawed Science and New York Lawyers

Cameron Todd Willingham was convicted in 1991 and sentenced to die for an arson that killed his three children in Corsicana, Texas. Throughout, he insisted that the fire was an accident, and after his execution, doubts only increased.  A report commissioned by the Innocence Project concluded that the arson investigation in Willingham’s case was seriously flawed, leading many to suspect that the Lone Star State did indeed execute an innocent man.  In 2008 the Texas Forensic Science Commission agreed to look into the case.

On Friday, July 23, the Commission decided that arson investigators had used flawed science, but were not negligent and committed no misconduct.  The investigators had relied, the Commission said, on the best science available at the time.  But a report given to them last year by fire expert Craig Beyler concluded that:

A finding of arson could not be sustained based upon the standard of care expressed by NFPA 921 [the current standard], or the standard of care expressed by fire investigation texts and papers in the period 1980–1992.

In other words, it wasn’t arson by any standard.

The Beyler report was completed over 9 months ago, but Governor Rick Perry stopped the Commission in its tracks by replacing three of its members, including its chairman, two days before a review of the report was to take place. It was Governor Perry who, in 2004, allowed Willingham’s execution to go forward, despite having in hand a report on the “junk science” Texas used to obtain the death sentence.  

Texas state Senator Rodney Ellis suggested to CNN the broader questions the Commission did not ask:

When did the State Fire Marshal start using modern arson science and did the State Fire Marshal commit professional negligence or misconduct when it failed to inform the courts, prosecutors, the Board of Pardons and Parole, and the Governor that flawed arson science had been used to convict hundreds of defendants?

The Forensic Science Commission’s chairman is now a prosecutor named John Bradley, who deftly blamed the whole thing on “New York lawyers”, saying of the Willingham case “I think that’s being used very much as a side issue to politicize, through some New York lawyers, the work of the commission.”

The Texas State Forensics Commission will vote on a final report sometime later this year.  Expectations are low.