Today's Fulton County Daily Report has, "Georgia Death Row Inmate Loses 11th Circuit Appeal. It's written by Alyson Palmer.
A federal appeals court on Thursday ruled against death row inmate Troy Anthony Davis by a vote of 2-1.
Davis' claims of innocence have delayed his execution for the killing of a Savannah, Ga., police officer in 1989. Seven of the nine trial witnesses for the prosecution have recanted their testimony, according to Davis' lawyers, who also cite affidavits from other witnesses saying another prosecution witness, Sylvester Coles, has confessed to the crime.
Judges Joel F. Dubina and Stanley Marcus of the 11th U.S. Circuit Court of Appeals said in their opinion issued late Thursday afternoon that after "painstaking review" they concluded that Davis had "completely failed" to meet the procedural requirements for filing a second federal habeas petition.
They extended their stay of Davis' execution for 30 days, saying he still may take his case to the U.S. Supreme Court.
The third judge on the panel, Judge Rosemary Barkett, dissented. She said executing an innocent person violates the 8th Amendment ban on cruel and unusual punishment and the 14th Amendment's guarantee of due process of law.
Stephen B. Bright, president and senior counsel of the Southern Center for Human Rights, echoed Barkett's dissent in an e-mail.
"The judges have completely lost sight of justice," said Bright. "They are lost in a maze of procedural rules that obscure the truth instead of revealing it."
The unsigned majority opinion noted that Davis' lawyers conceded their client submitted to the federal district court almost all of the evidence supporting his innocence claim during the time his first federal habeas case was pending. Davis' lawyers argued that the evidence of innocence was used then for a different purpose -- to get around procedural rules so the court would consider Davis' other arguments, such as his contention that prosecutors had withheld exculpatory evidence. The lawyers said their client couldn't have brought a claim of actual innocence in federal court at that time because he hadn't exhausted all of his state remedies, including an extraordinary motion for a new trial or an application for clemency.
Dubina and Marcus found that argument unconvincing, saying Davis hadn't adequately explained why he hadn't exhausted those other options before filing his first federal petition.
The judges agreed there was one trial witness affidavit, the 2008 affidavit of Benjamin Gordon, that Davis couldn't have obtained sooner. But they said it wasn't enough, concluding that federal law requires an inmate asking to file a second petition show both evidence of innocence and some other constitutional violation. Moreover, the judges found that Gordon's affidavit is "murky" and doesn't negate all the other evidence the prosecution put forth at trial.
Dubina and Marcus also rejected the suggestion that they could overlook the procedural rules. Even if they could do that, they wrote, "Davis has not presented us with a showing of innocence so compelling that we would be obliged to act today. Rather, the record, including all of the post-trial affidavits, is, at best, tortured and difficult." They noted that one eyewitness who identified Davis as the shooter at trial, U.S. Air Force serviceman Steve Sanders, has not submitted a post-trial affidavit altering his account. The post-trial affidavits of some other trial witnesses are ambiguous, said the judges.
"When we view all of this evidence as a whole," wrote Dubina and Marcus, "we cannot honestly say that Davis can establish by clear and convincing evidence that a jury would not have found him guilty of Officer MacPhail's murder."
Earlier coverage, with a link to the opinion, is here. Amnesty International has more on Troy Davis' case at this link.
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