painfully upsetting re: Troy Davis. if you have a blog, and wish to,

[nofurylike]

the author, Lawrence Ghana Hayes, former death row prisoner and Campaign to End the Death Penalty (CEDP) Board member, wants this distributed.

(this is directly copy/pasted. i hope it transfers okay.)

THE TROY DAVIS
ACTUAL INNOCENCE HEARING

BY Lawrence Ghana Hayes
June 22nd – 24th, 2010

Representing the Campaign to End the Death Penalty, on Tuesday, June 22nd, 2010 I traveled to Savanna GA to attend the Troy Davis Innocents Hearing. My original expectation was on the day of the hearing I would hear several witnesses take the witness stand, recant their testimony and, that process over, await the decision of the hearing judge. But, the truth is, what I witnessed on the day of the hearing was simply extraordinary. The combined testimony of the defense witnesses removed any shadow of doubt that Troy Anthony Davis is innocent of the crime for which he stands convicted and, at the very least, is entitled to a new trial.

“When I was first approached by the police, I told them I could barely recognize the shooter,” Atwan Williams, said on the stand. “I was scared and nervous.” Atwan also signed a statement alleging Troy’s guilt. The probable is, “Atwan can’t read.” He couldn’t even read the typed statement he signed 20 years ago, when the defense counsel handed it to him at the hearing. Then there was the testimony of Jeffrey Sapp, whom stated that when he was questioned he had several mad and angry Savanna police officers surrounding him. As for his original testimony against Troy, he stated, “I was saying the same thing they told me to say.”

"When the police arrived, I told them I could barely recognize the shooter," said Atwan Williams. "I was scared, nervous, I was just trying to take off."
Asked if he had read back the deposition he gave to police, Williams replied: "No sir, I can't read."
Kevin McQueen told the court he had been given a lighter sentence in return for simply making up the details of a confession he claimed Davis had given him. "I was mad at him," he said.
All the recantation witnesses’ testimonies were direct, clear, unshakable and, most important, believable. For me, it was the character and presentation of these witnesses that made the credibility of the next line of witnesses plausible. These witnesses provided eye witness and circumstantial evidence that points to another man (Sylvester “Red” Coles) who was the likely killer of the police officer that Troy Davis has been sitting on Georgia’s death row for killing, for the past 16 years.
BACKGROUND AND LEGAL COMMENTARY
Herrera v. Collins, 506 US 390 (1993)

In September of 1981, Leonel Herrera was charged with the murder of two Texas law enforcement officers. Herrera was subsequently convicted at trial and sentenced to death. After several attempts to obtain federal habeas corpus relief, the United States Supreme Court granted Herrera certiorari in 1992, on the issue of newly discovered evidence and ordered Herrera be given an “Actual Innocence Hearing.”

The evidence that was the subject of the hearing amounted to:

An affidavit signed by his nephew, Raul Herrera, Jr. whom stated that he was in the car the day of the shooting and it was his deceased father who did the actual shooting,
An two other affidavit from the deceased father’s past attorney and the father’s childhood friend, both stating that the father had told them he was the actual killer of the two police officers.

Leonel Herrera was executed on My 12, 1993, by lethal injection. He proclaimed innocence to the end, telling those gathered to witness his execution:

“I am innocent, innocent, innocent. Make no mistake about this; I owe society nothing. Continue the struggle for human rights, helping those who are innocent, especially Mr. Graham, I am an innocent man, and something very wrong is taking place tonight. May God bless you all. I am ready.”

On August 17, 2009, The United States Supreme Court mandate to judge William T. Moore, was: “to receive testimony and make findings of fact as to whether evidence that could have been obtained at the time of trial clearly establishes innocence.” This mandate placed the burden on the Defense to present evidence that “supported” Anthony Troy Davis innocence, which by no means suggested or implied they had any obligation to call Mr. Cole, who would have clearly been a “hostile witness.” In this sense, the Defense met its responsibility as required by the US Supreme Court mandate.

So why would Judge William T. Moore say, ”he's highly skeptical of testimony that another man has admitted to shooting MacPhail, because Davis' attorneys did not subpoena the man they say is the real killer?" And, then go even further in this tirade, to injudiciously state, "This hearsay testimony is looked at with suspicion and great caution. I may give the claims "no credence whatsoever” when I make my ruling in this case."

WHO HAD THE BURDEN TO CALL Sylvester Coles as a witness at the Troy Davis “Actual Innocents Hearing?” It was widely publicized that, Judge Moore told Davis' attorneys that they should have called Coles to the stand to testify, rather than the hearsay witnesses (referring to Anthony Hargrove and Benjamin Gordon). The first problem with judge Moore’s characterization is that each of the witnesses testified to an actual occurrence:

Hargrove said he and Coles were smoking marijuana together years ago when Coles told him, "You know, I shot a cop over there. ...Troy took the fall."

Gordon, who is related to Coles by marriage, testified Coles made a similar confession to him. Gordon also said he witnessed MacPhail's shooting and that it was Coles who fired the gun.

Although Gordon was a witness at Davis' 1991 trial and later signed affidavits for Davis' defense team in 2003 and 2008, Wednesday was the first time he said he was an eyewitness to Coles pulling the trigger.
"What made you change your story today?" Beth Burton, an assistant Georgia attorney general, asked Gordon. "You didn't think that was important to say earlier?"

Gordon said he had been afraid Coles might harm his family, but decided to speak up because "I've had this burden on me for a very long time."

Everyday we read newspaper headlines that reveal that government prosecutors used the testimony of mob, insider trade and drug trade snitches to convict. “I was told this” and “he said this or that” have been the basis of some of the most famous convictions the government has obtained. In a nutshell, Gordon stated that he “saw” Cole shoot the last shoot. That is as “eyewitness” as you can get. Hargrove’s testimony (along with the young lady’s testimony) would constitute “supporting circumstantial evidence” in any normal and just courtroom proceeding in the country.


ABOUT JUDGE MOORE’S
PREMATURE CHARACTERIZATION
OF WITNESS TESTIMONY

First, and foremost, the judge’s characterization of the three defense witnesses as hearsay-witnesses speck not to fact but to some obvious coded message he was apparently sending to the prosecutors. Secondly, every one knows that Coles was the prosecution’s key witness against Troy Davis at his original trial. Therefore, it would seem that the burden of calling Mr. Coles rested on the prosecution to refute allegations against their star or key witness and not, as judge William T. Moore would have us believe, on the defense. Furthermore, this was an “extra-ordinary” evidentiary hearing, not a trial. The judge was obligated to simply “hear testimony that was not presented during the original trial” and determine if it met the “Actual Innocents” standards. His focus on Mr. Sylvester Coles and the so-called "Hearsay Testimony” was out of character with the proceedings. Furthermore, for the judge to begin the proceedings with such a characterization of testimony he had not yet heard, in itself, showed “prejudice;” simply because his responsibility was to hear the evidence, then evaluate the evidence and finally to make a decision about the evidence (which included whether the testimony could be considered “hearsay”).

(In my opinion, this was merely a Ploy to alert the prosecution that the judge had already made up his mind about what he intended to do. He intends to deny Troy’s Innocence Claim, based on a predestined scheme “that the testimony was insufficient, because of its “hearsay” nature. And, of course, he will attempt to somehow claim that the defense failure to call Mr. Coles made a critical difference.) None of which fit the purpose, intent or just out come of the hearing.

The hope for Troy can be found in the US Supreme Court Justice Stevens opinion and response to the dissenting opinions of Justices Scalia and Thomas:


“Justice Scalia’s dissent is wrong in two respects. First, he assumes as a matter of fact that petitioner Davis is guilty of the murder of Officer MacPhail. He does this even though seven of the State’s key witnesses have recanted their trial testimony; several individuals have implicated the State’s principal witness as the shooter; and “no court,” state of federal, “has ever conducted a hearing to assess the reliability of the score of (post conviction) affidavits that, if reliable, would satisfy the threshold showing for a truly persuasive demonstration of actual innocence. The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.”
RECOMMENDATION

I, of course, hope my suspicions are wrong. I, as we all do, look forward to judge Moore accepting the overwhelming evidence of Troy Anthony Davis’ innocence and reaching a favorable decision and opinion. However, I recommend that we take the high ground by focusing on the our belief that “the only just outcome of the hearing is a favorable decision and Troy Anthony Davis’ immediate release.” I say this because I believe the two widely published characterizations regarding the “hearsay testimony “ and “the failure of the defense to call “Sylvester Coles” a witness were deliberately designed to cushion a negative outcome. It is our responsibility and obligation to promote the acceptance of one outcome and that is the expectation that Troy Anthony Davis is either released or given a new trial.

I suggest that we immediately produce a flyer that recognized (1) the superb job done by the defense team, (2) recognize the courage and trustworthiness of the recanting witnesses, (3) boaster the testimony of Anthony Hargrove and Benjamin Gordon and (4) declare that any out come short of Troy’s release or a new trial is nothing short of continued injustice. We should also be prepared to expose any relationships between Judge Moore, the FOP, MacPhail’s family and the local Savanna Police Department. I am in the process of researching Judge William T. Moore’s political and judicial background. I say this because, although the recantations make all the difference in the history of “Actual Innocence Hearing,” cases, thus far, I haven’t read a single case where the defendant actually won one.

There are no separate rules of evidence, guidelines or procedural standards for this kind of hearing. It may be that Troy’s case is a good starting point for the federal court to establish and


build on, but we want Troy home now, not after 5 or 10 years of further legal proceedings.


THE TROY DAVIS CASE / UPDATED
by Lawrence Ghana Hayes

OLD FASHION SOUTHERN JUSTICE: (A black man has not rights a white man must respect).

The Troy Anthony Davis case is a classical example of the United States Judicial System’s historical relationship with African-Americans, as established in the Dred Scott Case. (Dred Scott v. Sandford,<1> 60 U.S. (19 How.) 393 (1857), commonly referred to as The Dred Scott Decision, a decision by the United States Supreme Court that ruled that people of African descent imported into the United States and held as slaves, or their descendants <2>—whether or not they were slaves—were not protected by the Constitution and could never be citizens of the United States.<3> It also held that the United States Congress had no authority to prohibit slavery in federal territories. The Court also ruled that because slaves were not citizens, they could not sue in court. Lastly, the Court ruled that slaves—as chattel or private property—could not be taken away from their owners without due process. Chief Justice Roger B. Taney wrote the Supreme Court’s decision.) The US Supreme Court has never overruled the Dred Scott case.

Although the Judicial System in America has become very efficient at clothing racism and prejudice underneath a billion legal terms and procedures the outcome always reflects the same results: Troy Anthony Davis has no rights that Judge William T. Moore, sincerely, believes he is compelled to respect. Thus far, all of Judge Moore’s opinions and decisions have been expressed in a manner that is clearly “persuasive.” That is to say, Judge Moore came in with a plan and is only manipulating the press and public toward “his” contrived agenda. Judge Moore has displayed all the classical signs of “partiality” (as apposed to Impartiality) in this case. He stated out the case characterizing witness testimony as “hearsay,” then refused to hear the testimony of the only witness without a criminal record. So we can count on Judge Moore using “prior criminal history” of key defense witnesses as a basis for his decision.

Here are some recent developments:

Moore rejected Davis' attorneys efforts to review police files regarding Davis and Sylvester "Red" Coles in the slaying of MacPhail and assaults on Larry Young and Michael Cooper as well as Mark Wilds
By Jan Skutch (Posted: August 13, 2010 - 3:18am | Updated: August 13, 2010 - 6:37am)

Those lawyers were "attempting ... to create an incomplete and deceptive record, perverting the purpose of the rule," U.S. District Judge William T. Moore Jr. ruled Thursday in a three-page order, rejecting their motion to reconsider his earlier evidentiary rulings.

"By intentionally presenting unreliable hearsay while keeping the (witness) out of court, (Davis) was seeking to prevent the court from receiving all of the evidence," Moore ruled.

Instead, they should have provided "the court with a record on which the most accurate determination could be made," he said.

The ruling applies only to the June 23-24 evidentiary hearing material.

Moore has yet to rule on the larger issue of whether new evidence "clearly" establishes Davis' innocence.

By Jan Skutch (Troy Davis bid to re-open hearing rejected
Posted: August 12, 2010 - 12:24pm | Updated: August 12, 2010 - 12:38pm)

A federal judge today rejected reconsideration of evidence for Troy Anthony Davis, ruling his lawyers did not provide the court with a “record on which the most accurate determination could be made.’’

Those lawyers were “attempting... to create an incomplete and deceptive record, perverting the purpose of the rule,’’ U.S. District Judge William T. Moore Jr. ruled in a three-page order.

“By intentionally presenting unreliable hearsay while keeping the (witness) out of court, (Davis) was seeking to prevent the court from receiving all of the evidence,’’ Moore ruled.

A month later, Davis' appellate team filed a motion seeking to re-open the record because they argued Moore had improperly barred several witnesses.

Attorneys with the attorney general’s office opposed the move, arguing Davis’ lawyers made strategic decisions not to call certain witnesses and should not now be allowed to benefit from their choices.
Go to savannahnow.com/troydavis for full coverage.

A CLEAR CONFLICT OF INTEREST

How and why Judge William T. Moore was appointed to preside over the Troy Davis case is a serious question and raises a serious issue for Conflict Of Interest. Judge Moore very recently retired from the post of Chief District Court Judge for the Southern District of Georgia, which not only denied all Troy Anthony Davis appeals, but blocked all attempts by Troy’s lawyers to obtain a new evidentiary -hearing on the very same evidence that Judge Moore recently heard at the June 2010 Innocents Hearing. Did anyone stop to consider that Judge Moore would bring to the bench the position that has been repeated reached by the Southern District Court in Troy’s case? Or that Judge Moore would be hesitant to find in favor of Troy, because to do so would also say that the court he resided over as Chief Judge was wrong? Or, of course, that judge Moore is beyond ruling against Troy Anthony Davis to protect his own (and the Southern District Court’s) judicial sense of integrity? Judge William T. Moore doesn’t care that we are aware of his injudicious actions. He is a part of a small group of Europeans-Americans whose roots go back to the very first strong-arm lynching. I wonder if he plans on seeking office? If so, one group he can surely count on is the Powerful lobby of the FOP (Fraternal Order Of Police).

In short, the Troy Anthony Davis case is now outside the United States Judicial System. Troy’s case is now in the hands of those whom have perpetuated “Old Fashion Southern Justice,” and “Organized Lynch Mob” tactics from the founding of The New World. Their ability to manipulate the three branches of government within the United States of America is built into the very fabric of “how our system of government works.”

WHAT WE CAN DO

The one thing that can save Troy Anthony Davis life and assure justice in his case are expressions of “awareness” and “outrage” by as many members of the public as possible. During the Civil Rights struggles of the 1960’s the American people saw the true faces of racism and injustice on live television and joined the struggle by expressing their “aware” and “outrage” in letters to the appropriate members of the Executive and Legislative branches of government; as well as taking direct action in the form of organized protest. In this case I urge people to express their outrage in letters to the Justice Department, The Justices of the United States Supreme Court and members of the Judicial Committee in the House of Representative. We, The People, need to hold teach-Ins’, draw up petitions, and mount phone banks to educate our fellow citizens and together demand a complete over-hall of our judicial system, with an aim and purpose of eradicating racism and assuring “impartiality” in our Federal, State and Local Court systems.

* * * * *

lawbooks300x200.jpg
Justice Sandra Day O’Connor once told students at Stanford Law School how annoying she finds it to be woken up at night with an emergency application to stay an execution.

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1. important LTTE about the hearing:

(posted in its entirety, with consent)

*edit to add link

http://savannahherald.net/letter-to-the-editor-p562.htm?twindow=Default&smenu=94&mad=No

Letter to the Editor

• Wed, Jun 30, 2010

As I sat in the courtroom I wondered if my ancestor’s experienced the same sick feeling I was having in my stomach watching Troy Anthony Davis on trial for his life. His life in the hands of a racist judicial system that looks at the life of a black man like it is a joke. I saw Spencer Lawton, a man who was in charge of prosecuting those who committed crimes in Chatham County from 1981 to 2009 for 29 years display blatant racism and classism while on the stand. When the defense attorney asked retired district attorney Spencer Lawton if he remembered promising anyone deals in 1989 for lying on Troy Anthony Davis he said no but when asked if he wrote letter’s to the major newspaper’s and radio stations trying to get them published in 2008 asking them to publish the story for Troy Anthony Davis he couldn’t remember, he lied and got a case of amnesia. It also amazed me that Judge William T. Moore would not allow the defense to show that the credibility of the District Attorney’s office during the 1989 trial of Troy Anthony Davis, the office was truly tainted. The hearing in my opinion should have been held somewhere else, not in this county.

One by one the witnesses got on the stand under oath and told how they were interrogated by three and four police officers at one time, yelling at them, threatening them and being told if they did not say Troy Anthony Davis was the killer they would go to jail as an accessory to murder. After each witness the State Attorney brought up all the witnesses criminal records, to break down their credibility. It seemed amazing it was the same criminal records they had when Spencer Lawton used them to testify against Troy Anthony Davis; their credibility was never an issue when they spoke against Troy Anthony Davis.

Then one by one each police officer got on the stand and said they never coerced or threatened a witness. One witness signed a statement against Troy Davis and he could not read or write. One officer got on the stand and said he could not remember the details of the Davis case. He said and I quote, “I can remember the 70’s but I cannot remember the 80’s.

The state tried to talk about the shorts found in Mrs. Davis’s washer, they had not been washed, the police went to the house at night and the shorts and other clothing was still in the washer. DNA testing showed there was no blood on shorts, the DNA for blood was not in existence, the state was pulling straws hoping to find something but came up with nothing. Now let us talk about the weapon, the only person who testified they had a gun, a 38 caliber, the same caliber the police officer was killed with was Sylvester Red Coles. Coles was the man who was arguing with the homeless man over the can of beer as he testified to, not Troy Anthony Davis. Then when asked by the lawyers if they ever found Mr. Coles gun, the police officers on the stand said he was not a suspect so there was no need to look for Coles’ gun. They looked in some bushes and that was it, never got a warrant and searched Coles home for the gun. It was also suspicious that this man Sylvester Red Coles the next day after the shooting went to the office of a well known attorney in this county, John Calhoun for representation on a crime he didn’t commit.

It was obvious that, all the state witnesses, the prosecutors, the lawyers, some of the police and the judge were familiar with each other and therefore, some bias against Troy Anthony Davis does exist in the Chatham County judicial system. It was very sad to hear the state say that actual innocence is still not as important as procedure. In all the hearings Troy Anthony Davis has had over the years, his lawyers have always received a split decision, 4 to 4, 2 to 1, 3 to 2. Troy has always lost in a close split decision. What that says is that many judges have problems with Troy’s case and believe he should have a new trial.

One thing is for sure no matter what the decision by Judge William T. Moore in the federal court here in Savannah, the United States Supreme Court has said something is wrong with this case; the sad part is they thought fairness exists in our courts in Savannah, when it comes to people of color and the poor. After dealing with individuals in this community with legal issues and seeing the system at work it’s time for a change. People of color wake up and see what’s going on in our community. Educate yourselves on the judicial system, young men and women of color learn what your rights are so that something like this doesn’t happen again.

Alicia Blakely, President
Savannah Chapter - National Action Network
— Savannah Herald

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2. there is a GD thread asking people to take action:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x9024892


info linked:

http://www.opposingviews.com/i/georgia-death-row-inmate-troy-davis-may-be-innocent

action:

http://www.amnestyusa.org/death-penalty/troy-davis-finality-over-fairness/page.do?id=1011343


Please act and spread word!!

Thank you!!!

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3. thank you for the recs!!! PLEASE act and circulate!!! thank you!!! nt