[Deathpenalty] death penalty news-----GEORGIA

[Rick Halperin]

Oct. 26



GEORGIA:

Can Georgia Do Right?


Is the legal system of the state of Georgia up to the task  when the task
is to rectify the flawed trial of a black man accused of killing a white
police officer?

The world is waiting to see if justice can prevail.

Fortunately, on Friday, October 24, the U.S. Court of Appeals for
Georgia's 11th Circuit issued a stay of execution that narrowly prevented
accused cop killer Troy Davis from being put to death by lethal injection
the following Monday.

This is the 3rd stay of execution in a case that has attracted worldwide
interest. Troy Anthony Davis is charged with the 1989 murder of police
officer Mark Allen MacPhail. Davis has been in prison for 19 years, most
of that time on death row.

Circumstances surrounding officer MacPhail's death are murky. The violence
erupted in a dimly-lit parking lot late at night when someone in a group
of men opened fire with a .38 caliber pistol.

That "someone," according to the lawyer prosecuting the case, was Troy
Davis.

But Davis, who was 20 at the time, was very likely framed.

In the absence of solid physical evidence, including a murder weapon (the
gun was supposedly never found) witness testimony is especially crucial.
However, most of the witnesses had been drinking, and once the shooting
started, they were seeking cover.

Witnesses were coerced. One was threatened with 10-12 years in jail if he
didnt implicate Davis. Another, Sylvester Redd Coles, was himself a
suspect in the shooting. Coles had brandished a .38 earlier in the
evening. He told the court hed thrown the gun away.

Key testimony came from a woman standing 160 feet away, looking at 4 black
men scrambling about in a fracas that was "over before it began."
Pressured into identifying Davis at the trial, the woman called his
defense that night said it was all lies. When that was reported to the
court, the woman, Dorothy Ferrell, was arrested. Her lawyer told her she
could be convicted of perjury and imprisoned for 10 years.

"She was a single mother of 4," observes attorney Deirdre OConnor,
director of Innocence Matters. "She chose freedom over the truth."

Another witness said he couldn't identify the shooter  when questioned
that night, and again a month later. 2 years later, he confidently
identified Davis as the murderer.

Of the 9 witnesses who testified against Davis, 7 have tried to recant.
However, the recantations have been blocked for technical reasons.

Despite the shakiness of the case against Davis, the U.S. Supreme Court
decided October 14, 2008 not to hear Davis's appeal. Justice John Paul
Stevens, speaking for the minority, questioned the adequacy of Georgia's
appeal process. In another case involving Georgia, Stevens found
"particularly troubling" Georgias track record with respect to cases
involving black defendants and white victims.

The U.S. Supreme court's decision tossed Troy Davis's life back into the
hands of Georgia, whose supreme court had already denied the appeal on
procedural grounds.

Prosecution lawyer Spencer Lawton, who out-lawyered Davis's meager defense
team in the original trial, continues to press for the death penalty.
Lawton was recently interviewed by radio journalist Dori Smith, who asked
him if the unusually high proportion of witnesses trying to recant did not
perhaps undermine the credibility of the trial testimony.

On the contrary, Lawton responded. The high number made the recantations
"suspect." He called it "too much of a coincidence," and asked
rhetorically if you couldn't trust the witnesses then, how were you going
to trust them later?

Lawton went on to suggest that the clamor raised on behalf of Troy Davis
by public interest groups like ACLU, Amnesty International, and the
Innocence Project is tantamount to a "mob" gathered outside jurors' doors.

As for Davis's 19-year dance with death, Lawton says "Cases like this
can't drag on forever," he said. "Everybody suffers," The family of the
murdered police officer and even the defendant himself  Troy Davis -- are
entitled to "closure."

Closure for Troy Davis is to be death?

If Lawton's Alice in Wonderland logic seems outrageous, it's the same
logic that informed the Georgia Supreme Court's blinkered approach to the
earlier appeal, when it allowed procedural gambits to override serious
concern for justice.

It is the logic of the very "mob" that Lawton decries. One can't but ask,
would the same mentality prevail if the accused were white?

More is at stake here than one man's life. Even setting aside the ethical
and philosophical questions surrounding capital punishment, the fact
remains: If Troy Davis cannot receive a fair and impartial trial in
Georgia, this raises serious questions about the state's ability in this
the 21st century to provide liberty and justice for all.

Troy Davis seeks closure in the form of justice. We all do.

(source: Countercurrents.org; David Morse is a journalist and human rights
activist who has written extensively about Sudan)





**********************

Death-penalty process blasted; appeals follow


When U.S. Supreme Court Justice John Paul Stevens recently criticized the
way the Georgia Supreme Court reviews death-penalty cases, he appeared to
be inviting legal challenges on the issue.

Georgia promised to ensure fairness in the application of the death
penalty when it reinstated capital punishment in 1973. But Stevens said
one facet of Georgia's review to achieve that goal has become cursory and
could result in arbitrary or discriminatory sentences.

"The Georgia Supreme Court  must take seriously its obligation to
safeguard against the imposition of death sentences that are arbitrary or
infected by impermissible considerations such as race," Stevens wrote.

Lawyers defending capital cases said last week they are mounting new
appeals. They will challenge the state Supreme Courts proportionality
review, which compares a death sentence with punishments in similar cases.

"We intend to challenge it," said Atlanta veteran death-penalty lawyer
Jack Martin, who represents a Towns County man.

Lawyers in the Office of the Georgia Capital Defender also are pursuing
the issue.

"Obviously, at least one justice thinks it's a valid issue," said Mercer
University law professor Tim Floyd. "Stevens seems to be sending an
invitation."

On Oct. 20, the high court turned down the appeal of Artemus Rick Walker,
sentenced to death in 1999 in Macon County for killing and robbing a bank
executive. The denial sparked a testy exchange between Stevens and Justice
Clarence Thomas. Both agreed Walker's appeal should be rejected, but
strongly disagreed with the adequacy of the Georgia Supreme Courts review.

Thomas took issue with Stevens criticisms, calling them "entirely without
foundation."

The Georgia Supreme Court has done nothing wrong and its proportionality
review has been repeatedly upheld by the nations highest court, Thomas
wrote.

Under Georgia law, the state Supreme Court must make sure a death sentence
is not excessive or disproportionate when compared to punishment imposed
in similar cases. The review is meant to ensure that capital sentences are
not arbitrary.

The problem, Stevens said, is that the Georgia Supreme Court's review
compares a capital case only with cases that received death sentences, not
similar cases that received life sentences.

Stevens, who was not joined by another justice, said the court conducts
"an utterly perfunctory review."

The Atlanta Journal-Constitution, in a series published last year, found
that Georgia law has fallen short of ensuring a predictable and
even-handed application of the death penalty. The newspaper researched
2,328 murder convictions over a decade and found death sentences were
being imposed arbitrarily.

The AJC also researched all the state Supreme Court's proportionality
reviews from 1982 to 2007. The court once compared death cases with others
that received life sentences, but it stopped doing so, except on rare
occasions, in the 1980s. The court has not overturned a death sentence on
proportionality grounds since 1981.

Separately, the newspaper found that the court was citing capital cases
that had already been overturned on appeal to justify death sentences the
justices were upholding. Nearly all of those cases later resulted in life
sentences. The AJC found that 80 % of the court's rulings during this time
cited at least one overturned case.

Walker's appeal was decided by the Georgia Supreme Court on Oct. 9, 2007,
2 weeks after the AJC series. None of the 21 death cases the court cited
to justify Walker\'s sentence had been overturned.

Chief Justice Leah Ward Sears has said the court was taking steps to
improve its process. But she said the court must rule whether the facts of
a particular murder warrant capital punishment, and it does not matter
whether other murderers whose crimes were equally severe escaped death.

"The court's review is inadequate," said Gerry Word, head of the state
capital defenders office. "We're looking at cases we think are appropriate
for a proportionality challenge and filing those throughout the state."

Martin is pursuing a challenge for Clay Barrett, condemned to die for
killing his best friend in 2002.

"These were 2 drunken friends who got in a provoked fight that ended in a
gunshot," he said. "We plan to show that, if you compare it to similar
cases, its just not a death-penalty case."

(source: Associated Press)