For nearly two decades, Troy Davis has sat on death row, during which time he has accumulated a noisy band of supporters. They include former president Jimmy Carter, Nobel laureate Desmond Tutu and former Georgia congressman (and current death-penalty advocate) Bob Barr. All are convinced Davis may be innocent and deserves another chance to confront his accusers—especially since most have now recanted the testimony that convicted him. The story begins in a parking lot in Savannah, Ga. Police believe Davis pumped two bullets into off-duty cop Mark MacPhail after he tried to intervene as Davis assaulted another man around 1 a.m. on Aug. 19, 1989. Davis claims he was trying to stop the assault and had nothing to do with MacPhail's murder. But a witness fingered Davis, and the police launched a highly publicized manhunt. He surrendered on Aug. 23, and was indicted and found guilty.
The case rested on the shoulders of nine eyewitnesses—including the man who named Davis as the shooter but who others say is the real culprit. Seven of those witnesses have recanted. Most say they lied under pressure from police or prosecutors. A succession of courts has rejected their affidavits. Davis now has a long-shot petition pending before the Supreme Court requesting a hearing so those witnesses—who have never explained their reversals in court—can be heard.
In his opposing brief, Georgia's attorney general pointed out that six court proceedings and the state parole board have already rejected the recantations. This latest gambit, he argued, was simply an attempt to "circumvent" the law. "We, as attorneys, are bound.—We know what the ground rules are," says Russ Willard, spokesman for the attorney general. What Willard will not say is that Davis is actually guilty. "The trier of fact is the jury," he tells me.
So what if Davis is innocent? He blew his chance to prove that (notwithstanding that his previous attorneys were financially crippled), so it's not the A.G.'s concern. But it is the concern of his supporters. Ben Jealous, head of the NAACP, which filed a supporting brief, calls it the "most compelling case of innocence" he has seen. So why have courts been so reluctant to intervene? In part, because recantations are inherently suspect since they generally are offered by codefendants or family members. Then there is the Antiterrorism and Effective Death Penalty Act of 1996, which aspired to deliver convicted murderers more quickly to the gallows by foreclosing repeated habeas proceedings. Barr believes appellate courts are misinterpreting the law. It was never meant, he says, to prevent an appeal "where there is overwhelming evidence of innocence that has not been presented—What's the burden on the state, for heaven's sake, to take a day to have an evidentiary hearing?"
The answer, implicit but generally unstated, is that others may follow Davis's lead. In 1963, when the Supreme Court ordered an evidentiary hearing for a man convicted of murder on the basis of a drug-induced confession, Earl Warren took note of that concern. The "too promiscuous grant of evidentiary hearings—could both swamp the dockets of the District Courts and cause acute and unnecessary friction with state organs of criminal justice," wrote the chief justice. And defense attorneys and inmates certainly have not been shy about gaming the system.
So prosecutors generally prefer to let verdicts stand. But what DNA testing has made clear is that juries often make -mistakes—especially when relying on eyewitness testimony. Since 1989, more than 230 inmates have been released on the basis of such tests. Nearly 80 percent were convicted largely on eyewitness testimony, says Brandon Garrett, a University of Virginia law professor. The police can guard against planting false memories and thereby inducing false identifications by making sure witnesses are not cued to choose particular suspects. That was not done in Davis's case. And it is still not the norm. So you end up with this toxic combination: tainted identifications, inadequate legal resources and a court system reluctant to revisit jury decisions come together to create this truly Orwellian situation in which a possibly innocent man is asked to die because that is more efficient than reexamining the facts.
What happens if the Hail Mary pass to the Supreme Court fails? Larry Chisholm, the new district attorney in Chatham County, will certainly feel pressure to get involved. But the issues go beyond Davis. If courts are truly misreading the law, perhaps the law needs to be changed. The more profound question is this: must we accept that some plausibly innocent people will die as the cost of streamlining the process of justice? And is it fair to require that the sacrifice be borne almost exclusively by those too poor to mount an adequate defense at trial? Davis deserves a straight answer. So do we all.