Judge must decide whether Troy Davis proved innocence in cop killing

Atlanta Journal Constitution
Friday, June 25, 2010

Condemned inmate Troy Anthony Davis got his day in court to present new evidence he contends proves he did not kill an off-duty policeman 21 years ago. After hearing all the evidence, a federal judge now must decide whether Davis should be spared from execution.

In closing arguments Thursday, a member of Davis' legal team contended police rushed to judgment and got the wrong man in the killing. But a state attorney countered that Davis had fallen far short of producing enough new evidence to convince anyone that he did not gun down Savannah police Officer Mark Allen MacPhail as he ran to the aid of a homeless man being pistol-whipped.

At the close of the extraordinary two-day hearing ordered by the U.S. Supreme Court, U.S. District Judge William T. Moore Jr. did not issue an immediate ruling. He instructed attorneys to file legal briefs by July 7 and said he would rule as promptly as possible.

Earlier Thursday, however, Moore handed Davis' legal team a huge blow by ruling out testimony from a number of witnesses who were going to say that Sylvester "Redd" Coles told them he, not Davis, shot and killed MacPhail.

Davis has fought for a decade to get a court hearing to present his new evidence. But Moore's ruling, and decisions this week by Davis' legal team not to call a number of key prosecution witnesses who testified at the 1991 trial, ultimately may mean Davis cannot clear a difficult legal threshold set by the nation's highest court.

The U.S. Supreme Court, in a stunning ruling last August granting Davis his hearing, said Moore must decide whether new evidence "clearly establishes" Davis' innocence.

Davis attorney Jason Ewart told Moore that any reasonable juror would not convict Davis today after hearing the new evidence presented this week. That includes the recantations of 4 prosecution witnesses who earlier had testified they either saw Davis kill MacPhail or said Davis told them he did it. Those witnesses now say they were threatened and coerced into giving false testimony.

Ewart also expressed confidence in Benjamin Gordon, a relative of Coles', who testified for the first time Wednesday that he witnessed Coles gun down MacPhail.

Beth Burton, the lead attorney for the state, argued that there remains overwhelming evidence of Davis' guilt. She then ticked off the names of at least five prosecution witnesses who were not called this week, saying their testimony against Davis remains unchallenged.

"This was their case," Burton told Moore. "The standard is extremely high. ... They have not met it."

For much of Thursday, state attorneys called current and former Savannah police officers who investigated the murder case and the two lead prosecutors. "Absolutely not," former Chatham County District Attorney Spencer Lawton said resolutely when asked if he asked witnesses to give perjured testimony against Davis.

Lt. Gregory Ramsey, the lead detective, testified he carried out a "very meticulous and careful" investigation.

"I was in no rush just to pick the first guy we got our hands on," Ramsey said of Davis. "I wanted the right guy."

The 28-year law enforcement veteran added, "I'd rather the right guy get away a hundred times" than charge the wrong person.

Ramsey said that a number of witnesses gave "strikingly similar descriptions on how the shooter was dressed." For the most part, he said, witnesses told police the shooter was wearing a white T-shirt and dark pants, which other witnesses said Davis was wearing that evening.

Ramsey and other investigators steadfastly maintained they did not coerce or threaten witnesses to try to pin the murder on Davis. "You're trying to seek their honest responses and get to the bottom of the issue," Ramsey said. "You don't suggest to them. You want to know what they had heard or seen."

Davis' lawyers, dating back to the 1991 trial, have contended that Coles was the real triggerman. Coles was at the Burger King parking lot with Davis the night MacPhail was killed and was seen earlier with a revolver. Coles, who has denied killing MacPhail, was the first witness to come forward to police and implicate Davis in the killing.

Davis' lawyers did not call Coles to the stand this week, and Moore made them pay for it. He ruled out testimony by a number of witnesses who would have said Coles told them he killed MacPhail, on the grounds it was inadmissible hearsay. Moore told Davis' lawyers they could have gotten around that by calling Coles to the stand and giving him the chance to rebut that testimony.

"Here's one of the most critical witnesses to Davis' defense," Moore said. "Mr. Coles is available to testify and you don't call him. Mr. Coles should have been called by you."

Philip Horton, one of Davis' lawyers, said the legal team tried unsuccessfully to serve Cole with a subpoena on Wednesday, soon after Moore said he might not give any weight to hearsay evidence. Too late, Moore shot back, noting the hearing had been set months in advance.

Moore made his ruling with Quianna Glover, a Savannah woman, seated a few feet away on the witness stand. In a signed affidavit, Glover has said Coles told her a year ago he killed MacPhail. "This [expletive] is killing me," Coles told her, according to Glover's affidavit. But Glover stepped down from the witness stand without testifying after Moore's decision.