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In its public order granting a stay of execution to Troy Davis in 2007, the Board of Pardons and Paroles set out a standard for clemency: “[The Board] will not allow an execution to proceed in this State unless and until its members are convinced that there is no doubt as to the guilt of the accused.”
In the early morning hours of August 19, 1989, several people including Troy Davis and Sylvester “Redd” Coles were hanging out near a Burger King parking lot adjoined to a Greyhound bus station in Savannah, Georgia. Coles started arguing with a homeless man named Larry Young, demanding that Young give him a beer. As Young walked away, he was pistol-whipped in the head. Police officer Mark MacPhail, serving off-duty as a security guard at the bus station, responded to a call for help. As he came running to Young’s aid he was shot and killed by the same man who had attacked Young. The day after the shooting, Coles went to the police station with his lawyer and said that Troy Davis was the shooter.
1) Witnesses Implicate a Different Man as the Shooter
Since the Board last examined Davis’ case, two additional witnesses have implicated Sylvester Coles. First is Benjamin Gordon, who clearly testified at the 2010 federal evidentiary hearing that he saw Coles shoot Officer MacPhail. Gordon recounted specific details of the shooting that have not been publicized and police reports hours after the shooting put him across the street from the crime scene at the moment of the shooting. Gordon is related to Coles, has known him all his life, has been ostracized by his family for testifying and has said that he kept quiet all these years for fear of Coles retaliating against him.
Second is Quiana Glover, who, like Gordon, has no connection to Davis or his family and has known Coles most of her life. She has sworn that she heard a flustered Coles confess in 2009 to the MacPhail murder. Unfortunately, her testimony was excluded at the 2010 evidentiary hearing. Several witnesses have implicated Coles in sworn statements, including two others who stated he confessed to the murder.
2) Investigation Excluded Important Figure as a Suspect
In the investigation, Coles was never treated as a suspect, despite the fact that he indisputably was the one who began the altercation with Young that led to the shooting of Officer MacPhail. Several witnesses indicated that only one person was arguing with Young and this person was also the shooter. Coles admitted at trial that he was arguing with Young. Further, Coles admitted to having had a .38 caliber revolver that night, the exact type of gun used to shoot MacPhail. There was never a search for his gun nor did he ever produce it, claiming it was lost; therefore, it could never be tested.
Of the eyewitnesses to the murder, only Coles and Darrell Collins (who tried to recant before and after trial) knew Davis. It is critical to note how most of the eyewitnesses first identified Davis as the shooter. Within a week of the murder, they were gathered together by the police for a reenactment of the crime at the crime scene. By then, witnesses would have likely been exposed to Davis’ image, which was all over the local news and he was in jail as the prime suspect. In a photographic spread of five men, Davis was the only one pictured who had been at the crime scene close to the time of the shooting. Not only was Coles not pictured, but he was treated as the principle witness, invited to the reenactment, and treated as an innocent bystander standing alongside the other witnesses.
3) Most of State’s Witnesses Contradicted Their Testimony
Since trial in 1991, seven of the nine state trial witnesses have contradicted their testimony or admitted their testimony was false. Additionally, several informants who testified at trial also recanted. All of the state trial witnesses who recanted that are still alive have testified to the Board or the federal district court:
- Kevin McQueen told the Board in 2007 that he was a jailhouse snitch and that his testimony that Troy Davis confessed to him was a complete fabrication.
- Larry Young told the Board in 2007 that Coles, not Davis, most likely attacked and pistol-whipped him. The record shows that the shooter attacked Young before shooting MacPhail.
- Antoine Williams told the Board in 2008 that he had serious doubts about his identification of Davis. Also, he told the board the shooter was the same man arguing with Young.
- Darrell Collins recanted his police statement at trial and at the 2010 federal evidentiary hearing, testifying that the police had threatened him as an accessory if he did not implicate Troy Davis.
- Jeffrey Sapp told the Board in 2007 that his trial testimony that Troy Davis confessed to him was a fabrication that was a result of police suggestion and intimidation.
- Dorothy Ferrell told the Board in 2008 that she lied at trial when she confidently implicated Davis. The shooter’s light colored skin led her to conclude before trial that Coles was the likely shooter (Coles’ complexion is lighter than Davis’, hence the nick name “Redd”). Ferrell testified at trial that she could identify Davis, despite being positioned across a four-lane tree-lined boulevard with poor lighting conditions at 1:00am.
- Harriet Murray (died in 2006) signed an affidavit in 2002 reaffirming her initial statements that the shooter was the same person who argued and followed Young. She could not initially “put a face” on anyone in the lot and identified Davis only after the problematic crime reenactment.
Of the two witnesses who have not contradicted their trial testimony, one (Steven Sanders) could only identify Troy Davis at trial, two years after he told police that he “wouldn’t know the shooter again if I saw him.” The other is Sylvester Coles, whose recantation would implicate himself.
4) New Analysis of Physical Evidence Contradicts the State’s Case
In 2008, the State submitted to the Board a report by the Georgia Bureau of Investigation (GBI) that purportedly showed the presence of blood on a pair of shorts recovered from Davis’ home in the days after the murder. Davis’ attorneys were unaware of the existence of this report. Following the Board’s denial of clemency in 2008, a DNA and serology expert reviewed the full GBI report. The federal court in 2010, after reviewing the new expert analysis, concluded that “the shorts in no way linked Mr. Davis to the murder of Officer MacPhail,” and found that “it is not even clear that the substance was blood.” The court concluded that even if the substance was blood, it “could have belonged to Mr. Davis, Mr. Larry Young, Officer MacPhail, or even [could] have gotten onto the shorts entirely apart from the events of that night.” Therefore, the value of this item as evidence has been thoroughly challenged.
In 2004, Willie James Hall was granted clemency partly because former jurors said they would have voted for life without parole had it been an option. Davis’ 1991 jury took ample time to deliberate on the sentence and asked the judge whether life without parole was an option, but it was not. In 2007, before Davis’ first execution date, four jurors signed affidavits expressing concerns and a desire that the execution not proceed. Juror Brenda Forest said in a TV interview, “If I knew then what I know now, Troy Davis would not be on death row…the verdict would be ‘not guilty.”
Because executive clemency exists to provide a final failsafe it is not bound by the same strict rules and procedures as the courts. The Board is able to intervene in cases like Mr. Davis’ where the evidence is circumstantial and contradictory. Davis’ task in federal court was to prove his innocence. While the court felt he did not meet this admittedly “extraordinarily high” burden, serious and unresolved doubts persist. These doubts put Georgia at risk of an irreversible and monumental mistake which could weaken public confidence in the justice system. By following the “no doubt” standard made by the Board in 2007 and commuting Davis’ sentence to life imprisonment, today’s Board could eliminate this risk altogether by choosing to mercifully err on the side of life.
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