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Tuesday, September 20, 2011 - 11:11am

Troy Davis Analysis: Court Didn't Believe Witnesses

The state of Georgia executed death row inmate Troy Davis Wednesday. Before the death sentence was carried out, GPB's Orlando Montoya filed this report about the legal questions left unanswered by the case.


This is Troy Davis' fourth execution order.

If it's carried out it will be, in part, because of long-held legal precedents that don't favor recanted witness testimony.

Witness reliability plays prominently in Davis' internationally-watched case.

In the two decades since Davis was condemned for fatally shooting Savannah police officer Mark MacPhail, seven of the nine witnesses who testified against Davis at his trial have recanted their tesimony.

No jury has heard those recantations.

And that, more than anything else, brought death penalty opponents like Larry Cox of Amnesty International USA to a rare hearing in Savannah last year.

"I don't think anyone sitting there in the courtroom as I was hearing these witnesses can believe that there is a basis -- certainly there's no basis for putting someone to death -- on this type of testimony," Cox says. "I think it's very hard to say you don't have a reasonable doubt. "

Davis stood trial in 1991, when he was sentenced to death.

But the witness recantations prompted the US Supreme Court to order last year's hearing.

The high court told a Savannah federal judge to hear from the witnesses who took back their testimony and decide whether Davis was "clearly innocent."

That's a much higher legal standard than "guilty beyond a reasonable doubt."

After hearing from the witnesses, the judge deemed them unreliable and ruled that Davis not "clearly innocent."

If the death sentence is carried out, Michael Mears of Atlanta's John Marshall Law School says, it will be because the courts aren't well-equipped to deal justly with recanted testimony.

"The courts want finality in these trials," Mears says. "They don't want these trials going on forever and ever. And that's understandable. The problem in a death penalty case is if you don't get it right, then someone's going to die. And they're going to die for a crime they might not have committed."

Courts traditionally have taken a dim view of recanted testimony.

By its very nature, it involves people who, at one time, under oath, swore falsely.

And that undermines one of the legal system's central pillars -- people telling "the truth, the whole truth and nothing but."

The slain officer's son, Mark MacPhail, Jr., says the crime passed too long ago for the witnesses to be credible now.

"The most accurate testimony is usually the testimony at trial when everything is still fresh, not 22-years later," MacPhail says.

The Savannah federal judge, William T. Moore, echoed that view in his ruling, saying courts look upon changed testimony with suspicion.

But some legal experts believe the judge misread the law.

"Judge Moore, again, is reflecting the old-fashioned view," says University of Georgia Law School professor Donald E. Wilkes, Jr.

Wilkes says, the trend over the last 30 years has been for the courts to view recanted testimony as they would any other newly-discovered evidence.

"The modern view is not to be suspicious of it but to be careful about it," Wilkes says. "Courts recognize that sometimes recantation evidence is true. The standard for admitting recantation testimony was far too harshly and inappropriately applied in the case of Troy Davis."

Higher courts, however, haven't found the need to review Judge Moore's ruling.

And Davis' original conviction and sentence stands.

One interesting legal footnote is another fact about Judge Moore's ruling last year.

The Savannah judge ruled -- for the first time ever in American history -- that it is unconstitutional to execute an innocent person.

Davis' supporters believe that's what would happen if he is put to death.