[Marxism] Troy Davis -- Atlanta protest and what this case shows about U.S. criminal justice

Joaquín Bustelo jbustelo at gmail.com
Wed Sep 21 21:02:44 MDT 2011


http://www.youtube.com/watch?v=4VI1FAGTnjg

Some clips from the Atlanta protest on Friday. Many others have also 
posted clips to youtube of the speeches, including by Al Sharpton and 
Dick Gregory, so I'm not going to post much else. There were about a few 
thousand people there, I'd guess, with an impromptu rally outside 
Ebenezer Baptist Church accompanying the official event inside because 
way more people showed up than the organizers (Amnesty International, 
NAACP, Ebenezer) thought would come.

The protest got only a little coverage in the local or national media, 
although the case has resonated very widely.

*  *  *

The following is from an email about this case that I sent a small 
circle of other mainstream media journalists a few days ago.

The Troy Davis case is a good illustration of the criminal nature of the 
U.S. justice.

His most recent substantial appeal was an extraordinary evidentiary 
hearing and determination of facts before a federal --not state-- judge. 
It was held by William  T. Moore, the  most senior federal district 
judge in Savannah.

And Judge Moore rejected the indirect appeal (technically, a habeas 
corpus petition) on the grounds that "The burden was on Mr. Davis to 
prove, by clear and convincing evidence, that no reasonable juror would 
have convicted him in light of the new evidence."

Judge Moore's ruling is here: 
<http://www2.wsav.com/mgmedia/file/101/davis-court-order/>

Reading it shows just how flimsy the case against Troy Davis was to 
begin  with -- and how little remains of such evidence as the government 
did have. The first part of the ruling is just a recounting of the 
investigation and the trial; then a bunch of legal mumbo jumbo to place 
an impossible burden of proof on Troy Davis; then a review and analysis 
of the new evidence -- witnesses and affidavits -- at this hearing.

The proceedings before Judge Moore were extraordinary. According to some 
accounts, it was the first time the U.S. Supreme Court had ordered such 
a hearing in a half century. But to all intents and purposes the hearing 
was a sham because the judge set the bar impossibly high -- in effect 
requiring Troy Davis's side to prove his innocence.

The most convincing of this new evidence --the direct, explicit 
recantation by Kevin McQueen, the stool pigeon who claimed Troy Davis 
had confessed to him while in jail-- the judge dismisses saying "The 
value of that recantation is diminished because it only confirms that 
which was obvious at trial—that its author was testifying falsely."

Think about that. McQueen recants his trial testimony, where he said 
Troy Davis confessed, which for this judge "confirms" what happened at 
the trial. So it doesn't really count.

He even adds "Given that Mr. McQueen's trial testimony was so clearly 
fabricated, and was actually contrary to the  State's theory of the 
case, it is unclear why the State persists in trying to support its 
veracity."

The judge is being disingenuous. Because if it was "obvious" at the time 
that the testimony was a fabrication, then Troy Davis should be released 
immediately, as it is grave prosecutorial misconduct and a denial of due 
process of law for a prosecutor the present testimony s/he knows is 
false. It is a denial of a fair trial to do that, and the federal 
constitution supposedly guarantees a fair trial.

And if the prosecution had admitted now that the statement was 
fabricated, they are pretty much obligated to give him a new trial 
because one of the chief elements of proof they offered in the original 
trial they now admit was false.

Judge Moore is free to admit the truth because he has set the bar 
impossibly high -- he required Troy Davis to show not that he hadn't 
received a fair trial, nor that there was real doubt as to his guilt, 
but that there is now *no doubt* that he is innocent.

Moreover, while finding the recantation itself credible, he makes an 
exception for the motive: "the recantation is credible, with the 
exception of the allegation of prosecutorial inducements...".

In a footnote the judge explains,  "While the Court credits Mr. 
McQueen's recantation, it does not credit the portion of his testimony 
claiming that he received inducements to testify at trial. As Mr. Lock 
credibility testified, Mr. McQueen received no favorable treatment for 
his testimony. (Evidentiary Hearing Transcript at 453-54 ("Q: So my 
question to you, Mr. Lock, is: to your knowledge as the chief assistant 
district attorney at this time did Mr. McQueen get any benefit for the 
information that he was giving . . . regarding Mr. Davis? A: No, and I'm 
relatively certain that any assistant district attorney that 
contemplated doing that would have come to me about doing it.")

And that carefully worded non-denial ("relatively certain" he would have 
been told if McQueen had received consideration) is accepted as 
refutation that the prosecution suborned McQueen's perjury. Even though 
offering leniency in exchange for testimony is something that goes on 
every day in every jurisdiction in this country. A few years ago a 
three-judge court of appeals panel finally called things by their right 
name and said it was subornation of perjury, a crime that consists of 
offering something of value in exchange for testimony (not false 
testimony, but any testimony, even if true, except for expert 
witnesses). And overturned a drug verdict.

Immediately the other judges of that circuit ordered a new hearing 
before all 12 circuit court judges and overturned the decision, saying 
when the government did it, it wasn't subornation of perjury because to 
say otherwise "would not only be a radical departure from the ingrained 
legal culture of our criminal justice system but would also result in 
criminalizing historic practice and established law." (US 10th Circuit 
Court of Appeals, USA v Singleton. 
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/10th/973178v4.html&friend=wisbar 
<http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/10th/973178v4.html&friend=wisbar>)

So it is silly for the judge to pretend it didn't happen in this case.

At his evidentiary hearing, affidavits were presented from 7 key 
witnesses at the trial, mostly recanting all or aspects of their 
testimony. Judge Moore goes through them showing that they don't *prove* 
Troy Davis innocent. But what they do show is police and prosecutorial 
misconduct. Eyewitnesses were exposed to Troy Davis's picture as the 
suspect *before*  being shown a lineup of photographs. Time and again, 
the affidavits say the witnesses were pressured by police to testify in 
a certain way. Judge Moore discounts all of this because the police say 
they didn't do it, and anyways, that doesn't prove Troy Davis is innocent.

And then he further discounts the probative value of the affidavits 
because at least some of those people were available to testify at the 
hearing but the affidavit was presented instead, which means they could 
not be cross-examined. However, the judge does not explain why the 
prosecution could not have called them and questioned them about their 
affidavit.

What really takes the cake, though, are the testimony and affidavits 
about another person who had been present that night and was involved in 
the altercation that led to the shooting, a Mr. Coles. This sworn 
testimony is that at least on  four occasions Coles confessed or 
suggested he had been the one who actually shot the off-duty police 
officer. Two live witnesses and two sworn statements were admitted; at 
least one additional one was rejected for admission for unstated reasons 
but the judge said it would not have changed his evaluation.

The judge explains that this is hearsay and thus unpersuasive, and even 
cites McQueen's fabrication against Troy Davis to illustrate the problem 
with hearsay confessions. And this actually faithfully reflects the law 
in the United States. Hearsay testimony is not allowed ... unless they 
are the defendant's own words being used against him.  Supposed own 
words. So if 100 people have heard someone protest his innocence and one 
person claims to have heard him admitting guilt or something else that 
suggests guilt, only the latter testimony is admissible.

So a fabricated hearsay confession almost certainly bought and paid for 
by the prosecutors is plenty good to condemn a man to death, but the 
recantation of that confession plus at least five incidents where 
someone else confessed aren't enough to get the sentence commuted, never 
mind entitle Troy Davis to a new trial.

Bottom line: Troy Davis is on death row on the basis of fabrications and 
police-coerced testimony that has now been recanted under oath.

Troy Davis is a Black man accused of killing a white police officer, and 
this is Georgia.

So they're going to lynch him anyways.

*  *  *

Latest is that the execution is now being carried out.

Joaquín







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