Unequal Justice Equals No Justice

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His father was a cop in the same small, coastal city in which his family has always lived—Savannah, Georgia. He knew many of his father’s colleagues and played on the police department’s athletic little league team as a youngster, when he wasn’t hanging out at the church. Later, he even coached. Some of his friends are cops. But now he sits on Georgia’s death row, waiting for justice to intervene in the State’s case against him for the 1989 murder of Mark Allen McPhail, a murder that he did not commit. He is Troy Anthony Davis, and though his story has become a commonplace one, its peculiar anomalies are striking in their ability to provoke incredulity.

The number of innocent people falsely convicted of murder is astounding. According to the Death Penalty Information Center, since 1973, 138 people in 26 states have been released from death row after forensic evidence proved their innocence, 10 in 2003 alone. How they end up there is a nightmare with which the Davis family is more than familiar.

“They [the Savannah police] had no gun, no DNA, no reason for the shooting, and everything was launched on my brother. He had never been in trouble before,” Davis’ sister, Martina Davis-Correia, told Pat Kenney, host of the radio show, Today, when she was honored with a humanitarian award, the Sean McBride Award for Outstanding Contribution to Human Rights, in April, 2010. “The police went into my mother’s home, got a picture of my brother—‘cause he didn’t have a police profile—and they put up ‘Wanted: Dead or Alive: Cop Killer’ posters all over the city before they even talked to Troy. . . . And here, it’s 2010, and Troy has never been interrogated about this crime.” Davis-Correia has been campaigning for her brother’s release for nearly 20 years now. No gun gives the State no forensic evidence against Davis—this type of evidence has become the gold standard used to convict in capital murder cases. There is also no other evidence against Davis now, except mostly recanted witness testimony.

There are other odd things about the State’s case against Davis. First, although the gun that was used to murder McPhail has never been recovered, bullets from the shooting were and were matched with those found at the scene of another shooting that occurred earlier in the evening at a party in nearby Cloverdale. Gunpowder residue tests of Troy’s hands were negative. Then, there are the witnesses. Seven of the nine witnesses who testified against Davis have recanted their statements, claiming they had been coerced; one of the two remaining witnesses, Sylvester “Red” Coles, has been identified as the actual killer by three other, unimpeachable witnesses who have come forward to testify to Davis’ innocence, according to Jared Foyer, southern American coordinator for Amnesty International.

In a sworn affidavit, Coles has been reported as having been at the party in Cloverdale. The other lone witness that has not recanted has said he cannot positively identify the shooter—only that he was left-handed. Troy Davis is right-handed. Appeal after appeal, after each new witness has come forward or an old witness has recanted, the State of Georgia has perfunctorily denied Davis’ request to be heard on these emerging new facts that overwhelming exonerate him, taking the position that because Davis’ trial was technically fair, it’s final.

The real reason Troy Davis has spent the last two decades in prison for a murder he didn’t commit is because Mark McPhail was one of the Savannah Police Department’s own—a cop who, like Davis, was caught in the wrong place at the wrong time. And the case against Davis has been intractable for one reason only: convicted cop killers get harsher treatment than other convicts, even other murder convicts, in Georgia.

Amnesty International, in its investigation of the Davis case, says: “This case involves the murder of a police officer, a crime which undoubtedly heightens emotions—among the authorities seeking to bring the perpetrator to justice, as well as within the community and the media. Seventy-one of the 84 prospective jurors questioned during jury selection for Troy Davis’ trial indicated that they had heard about the murder from pre-trial publicity and/or had discussed the case with other people. . . . Troy Davis’ lawyers sought a change of venue for the trial away from Chatham County, where the crime occurred. This motion was denied by the trial court.” Davis-Correia notes: “In the next county over, a judge ordered a new trial in another case when one of nine witnesses recanted. So it’s up to the county judge to decide who gets justice and who doesn’t.” She is rightfully dismayed that seven out of nine witnesses have recanted their testimony against her brother, and the judge in his case has refused to order a new evidentiary hearing. 

Prosecutors and McPhail’s overzealous colleagues have been determined to make someone—anyone—pay for McPhail’s murder, and to cover-up the deplorable way in which they’ve convicted Davis. But no one gets justice under those circumstances, as Davis-Correia knows; McPhail’s real murderer has never been indicted. “Everyone in these types of cases has been victimized, and we must always, always get it right,” she pleads. Both men deserve better treatment from our justice system.

McPhail, like Davis, believed in doing good. Like Davis, the night he died he had risked possible harm to intercede in the beating of a homeless man outside a Burger King restaurant in the Savannah bus depot.  When the perpetrator flashed a gun at Davis and another teenager—who is one of the witnesses to claim his testimony against Davis was coerced—they ran. McPhail, who was off-duty at the time and working as a security guard at the depot, did not, and he died. With ruthless cruelty, the shooter then went to police and told them Davis had committed the murder. When Davis’ sister told him a day later that his picture was all over the news and the police were looking for him, Davis went to the Police Department as soon as he could to answer their questions. Instead of being given the opportunity to provide vital evidence in McPhail’s murder, he was arrested and asked only one thing: “Where’s your gun?”

The de facto burden of proof has been, since that day, on Davis to prove his innocence, not on the State to prove his guilt, as our system of jurisprudence traditionally demands. It became his actual burden the day he was convicted as the State now officially sees Davis as guilty. Throughout the appeals process, Davis has asked the court to reconsider the recanted testimony and consider new witness testimony that proves his innocence, but it has refused to do so. In order for Davis to qualify for the evidentiary hearing he was illegally—and immorally—denied, the court has said that he must prove beyond doubt that he is innocent, and each time he’s tried, that he has not. “One of the things the judges said was that he should have brought up the evidence of innocence earlier. And his lawyers said, ‘We tried, and you wouldn’t allow it,’” Davis-Correia recalls.

Compounding Davis’ difficulties is the fact that President Bill Clinton brought the finality-over-fairness issue to a premature close when he signed into law the Antiterrorism and Effective Death Penalty Act of 1996, which provides for a limited number of appeals in death row cases no matter what evidence emerges that may exonerate the convicted. In Davis’ case, the State of Georgia has followed the Act to the letter. So reluctant has the State been to grant Davis a fair hearing, and so afraid of public censure for its mishandling of Davis’ case, its Department of Corrections has summarily denied broadcast media, such as 60 Minutes, access to Davis.

For the past
several years, as Davis has faced repeated attempts by the State to execute him, Amnesty International has spearheaded worldwide protests and campaigns to pressure the State to stop trying to end Davis’ life. They’ve asked it instead to support justice for Davis and for Officer Mark McPhail with letter-writing campaigns to the Governor of Georgia and to District Attorney, Larry Chisholm. Among Davis’ most vocal supporters are President Jimmy Carter, Pope Benedict XVI, Nobel Laureate Archbishop Desmond Tutu, former FBI Director and Judge William S. Sessions, Harvard University Law School Professor Charles Ogletree, the Indigo Girls, human rights activist and actor Harry Belafonte, and even some of the former colleagues of Davis’ father, who testified as character witnesses for Davis in his original trial.

“The fact that the jury—the ultimate fact finder—never knew about the accusations of police coercion that the prosecution’s major witnesses have repeatedly made since recanting their most-likely fabricated trial testimony invites grave concern. The further fact that no court could review the merits of this newly uncovered exculpatory evidence compounds the problem beyond, I suggest, the level at which any government can carry out the irreversible act of executing a human being,” Ogletree wrote to the George State Board of Pardons and Paroles six days before the first time Davis was scheduled to be executed in July, 2007.

It now looks as though the cabal that put Davis wrongly behind bars finally may be losing its terrorizing grip on the Savannah community. Last August 17th, the Supreme Court ordered the Federal Court in Georgia to hear Davis’ pleas, and on April 27th, that court set the date for which Davis and his many worldwide supporters have been working and praying for years. Davis faces a new evidentiary hearing on June 23rd at 10:00 AM in proceedings open to the public at the Federal Courthouse in Savannah. The hearing sets the stage for the fair trial Davis never received, for his potential release and exoneration, and for true justice for Officer McPhail, his family, the entire Savannah community, and finally, for the Davis family.

Troy Speaks

“. . . that’s what’s most important—is that a lot of people out there still don’t know about my situation, and they don’t realize that what happened to me is still happening every day to normal people, and people think this is just happening to people of poor backgrounds and things like that, but it can happen to anybody”

Troy Anthony Davis, May, 2009

Still a devout Christian, Davis says, “God is leading this fight so the victory is His. God bless you!” He asks that we keep him and his family in our prayers, praying Psalm 35 for him. Amnesty International’s local chapter will host a vigil the afternoon of June 22, the day before Davis’ hearing, from 5:00 to 6:00 PM in Davis Square, Somerville. To find out more about how you can support Troy Anthony Davis, visit Amnesty International’s website at www.amnestyusa.org, or text “TROY” to 90999 to get text updates on his fight for justice. You can organize your own action to support Davis on June 22 by checking the Amnesty International website for more information on how. Or e-mail them at lmoyne@aiusa.org with Troy Davis in the subject line for information on events in your area.

Troy Davis deeply appreciates cards and notes of encouragement, which can be sent to:

Mr. Troy A. Davis
P.O. Box 3877 G.D.C.P.
657378 G-2-39
Jackson, GA 30233

To support Davis with stamp funds, please send money orders to:

The Georgia Department of Corrections
P.O. Box 40599
Atlanta, GA 30384

Be sure to include Davis’ name and ID number, 657378 G-2-39, on them. He personally answers all the mail he receives, though it may take him a while to do so.

Ashley Stearns has been an opponent of what has become the prison industrial complex since she was 13, when AIM activist Leonard Peltier was wrongly convicted of the murders of two FBI agents in a government raid on the Pine Ridge Reservation in 1977, just seven years after activist Angela Davis was wrongly accused of being an accomplice in the murder of Judge Harold Haley.  She writes on politics and culture from her current home in Cambridge, MA, where she is also working on her personal (bio)slave narrative.