This morning, the U.S. District Court judge who heard two days of evidence in the Troy Davis case as ordered by the Supreme Court ruled that Davis’ team had not demonstrated his actual innocence or his entitlement to a new trial. This is probably the end of the line for Davis, as Judge William T. Moore sent a copy of his order directly to the Supreme Court, who now can dismiss Davis’ direct habeas corpus petition and allow his execution to proceed.
As devastating as this news is (and make no mistake, it is almost certain now that Davis will be executed by the state of Georgia within the next year) it is not terribly unexpected. Actual innocence claims are nearly impossible to prevail upon without DNA evidence (which is lacking in this case), and Davis’ team made the strategic decision NOT to subpoena Sylvester “Redd” Coles, the so-called “real killer” of Officer Mark McPhail, for the evidentiary hearing. Presumably they figured Coles would testify that he hadn’t shot McPhail and Davis had, and his testimony alone would be enough to support the original conviction. However, several of the other recanting witnesses have since identified Coles as the likely killer, but the judge ruled at the hearing that he would not allow evidence or testimony that Coles had admitted to being the shooter because Coles had not been given the opportunity to refute it through live testimony. At that moment, the die was probably cast because without a “real killer,” and with Coles’ testimony at trial remaining un-contradicted, it was enough to support the conviction.
Though it will be small solace to the many who believe Davis is innocent and that our state has no business executing someone we are not absolutely certain is guilty of murder, Davis did get an evidentiary hearing and an opportunity to present the testimony of the recanting witnesses in open court. Unfortunately, the judge to whom such evidence was presented concluded that “[u]ltimately, while Mr. Davis’ new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors…The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value.’’ The evidence needed to be clear and convincing that Davis was innocent and should not have been convicted of the crime of murder by any reasonable jury, and that wasn’t what was presented to Judge Moore.
And now, this sad tale will probably come to a very sad but inevitable close at the hands of the state of Georgia.
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