Actual Innocence
A death-row case tests whether swift justice can also be certain.
For nearly two decades, Troy Davis has sat on death row, during which time he has accumulated a noisy band of supporters. They include former president Jimmy Carter, Nobel laureate Desmond Tutu and former Georgia congressman (and current death-penalty advocate) Bob Barr. All are convinced Davis may be innocent and deserves another chance to confront his accusers—especially since most have now recanted the testimony that convicted him. The story begins in a parking lot in Savannah, Ga. Police believe Davis pumped two bullets into off-duty cop Mark MacPhail after he tried to intervene as Davis assaulted another man around 1 a.m. on Aug. 19, 1989. Davis claims he was trying to stop the assault and had nothing to do with MacPhail's murder. But a witness fingered Davis, and the police launched a highly publicized manhunt. He surrendered on Aug. 23, and was indicted and found guilty.
The case rested on the shoulders of nine eyewitnesses—including the man who named Davis as the shooter but who others say is the real culprit. Seven of those witnesses have recanted. Most say they lied under pressure from police or prosecutors. A succession of courts has rejected their affidavits. Davis now has a long-shot petition pending before the Supreme Court requesting a hearing so those witnesses—who have never explained their reversals in court—can be heard.
In his opposing brief, Georgia's attorney general pointed out that six court proceedings and the state parole board have already rejected the recantations. This latest gambit, he argued, was simply an attempt to "circumvent" the law. "We, as attorneys, are bound.—We know what the ground rules are," says Russ Willard, spokesman for the attorney general. What Willard will not say is that Davis is actually guilty. "The trier of fact is the jury," he tells me.
So what if Davis is innocent? He blew his chance to prove that (notwithstanding that his previous attorneys were financially crippled), so it's not the A.G.'s concern. But it is the concern of his supporters. Ben Jealous, head of the NAACP, which filed a supporting brief, calls it the "most compelling case of innocence" he has seen. So why have courts been so reluctant to intervene? In part, because recantations are inherently suspect since they generally are offered by codefendants or family members. Then there is the Antiterrorism and Effective Death Penalty Act of 1996, which aspired to deliver convicted murderers more quickly to the gallows by foreclosing repeated habeas proceedings. Barr believes appellate courts are misinterpreting the law. It was never meant, he says, to prevent an appeal "where there is overwhelming evidence of innocence that has not been presented—What's the burden on the state, for heaven's sake, to take a day to have an evidentiary hearing?"
The answer, implicit but generally unstated, is that others may follow Davis's lead. In 1963, when the Supreme Court ordered an evidentiary hearing for a man convicted of murder on the basis of a drug-induced confession, Earl Warren took note of that concern. The "too promiscuous grant of evidentiary hearings—could both swamp the dockets of the District Courts and cause acute and unnecessary friction with state organs of criminal justice," wrote the chief justice. And defense attorneys and inmates certainly have not been shy about gaming the system.
So prosecutors generally prefer to let verdicts stand. But what DNA testing has made clear is that juries often make -mistakes—especially when relying on eyewitness testimony. Since 1989, more than 230 inmates have been released on the basis of such tests. Nearly 80 percent were convicted largely on eyewitness testimony, says Brandon Garrett, a University of Virginia law professor. The police can guard against planting false memories and thereby inducing false identifications by making sure witnesses are not cued to choose particular suspects. That was not done in Davis's case. And it is still not the norm. So you end up with this toxic combination: tainted identifications, inadequate legal resources and a court system reluctant to revisit jury decisions come together to create this truly Orwellian situation in which a possibly innocent man is asked to die because that is more efficient than reexamining the facts.
What happens if the Hail Mary pass to the Supreme Court fails? Larry Chisholm, the new district attorney in Chatham County, will certainly feel pressure to get involved. But the issues go beyond Davis. If courts are truly misreading the law, perhaps the law needs to be changed. The more profound question is this: must we accept that some plausibly innocent people will die as the cost of streamlining the process of justice? And is it fair to require that the sacrifice be borne almost exclusively by those too poor to mount an adequate defense at trial? Davis deserves a straight answer. So do we all.
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Ellis Cose, author, columnist and contributing editor (since 1993) for Newsweek magazine and former chairman of the editorial board and editorial page editor of the New York Daily News, began his journalism career as a weekly columnist for the Chicago Sun-Times—becoming, at the age of 19, the youngest editorial page columnist ever employed by a major Chicago daily. Cose, who is also an independent radio producer, is a popular campus lecturer and public speaker.
In addition to serving as a columnist, editor and national correspondent for the Chicago Sun-Times, Cose has been a contributor and press critic for Time magazine, president and chief executive officer of the Institute for Journalism Education, chief writer on management and workplace issues for USA Today (where he has also served as an occasional columnist and member of the board of contributors) and a member of the editorial board of the Detroit Free Press. He has also been a fellow at the Gannett Center for Media Studies at Columbia University, at the National Research Council/National Academy of Sciences, a senior fellow and director of energy policy studies at the Washington-based Joint Center for Political Studies, and a consultant to the Ford and Rockefeller Foundations.
Cose's Bone to Pick: On Forgiveness, Reconciliation, Reparation and Revenge, was published by Atria (a Simon and Schuster imprint) in April 2004. The book is a wide-ranging look at a number of societies—the United States, Ghana, South Africa, East Timor, and Peru among them—and their ways of coping with cruelty and pain. The Washington Post had this to say: "The complex questions surrounding 'forgiveness, reconciliation, reparation, and revenge' probably require a scholarship of jurisprudence, philosophy, psychology, history and literature. This is the kind of ambitious enterprise that the world's great religions deal with. But Cose meets the challenge, and Bone to Pick ranges over centuries of contested histories, across five continents, spinning individual tragedies in and out of collective traumas, seeking the nature of 'forgiveness, albeit as a proxy for a larger set of values.' … The truth may be a prized (and politicized) commodity in the quest for social justice, but as Cose observes, quoting Czech novelist Milan Kundera, 'The struggle of man against power is the struggle of memory against forgetting.' Bone to Pick is a timely reminder of that axiom and a useful addition to the canon of that struggle."
Cose's The Envy of the World, an in-depth essay on the state of black men in America, was published by Washington Square Press (an imprint of Simon and Schuster) in 2002 and has appeared on several best-seller lists, including the Essence magazine list, where it was number one. Newsweek featured the book on its cover and National Public Radio produced a special a program based on it. Kirkus Reviews called The Envy of the World, "A slender volume with a substantial and significant message." The Washington Post described it as "lucid, eloquent and deeply personal book." The Chicago Tribune called its author "a gifted, rhapsodic essayist." "Cose charts both an urgently argued history of black masculinity and a moving and nuanced snapshot of where it is now," declared Publishers' Weekly. The paperback edition was published in January 2003.
In May 2004 the Rockefeller Foundation issued Beyond Brown v. Board: The Final Battle for Excellence in American Education—a major report authored by Cose on the legacy of the historic Brown v. Board of Education school desegregation decision and the current challenges facing American educators. The report was the basis of a Newsweek cover feature and for a David Broder column and other stories in the national press. In November 2006, the Institute for Justice and Journalism at USC's Annenberg School published Cose's Killing Affirmative Action: Would ending it really result in a better, more perfect Union? That report, featured in several newspaper and in Newsweek magazine, examined California's 10-year experience living with Proposition 209, the measure that ended affirmative action in the public sector in California.
Cose's best-selling The Rage of a Privileged Class, a book-length essay on race in America, was published by HarperCollins in January 1994. It was featured as a Newsweek cover story and described by The New York Times Book Review as a "disciplined, graceful exposition of a neglected aspect of the subject of race in America." His A Man's World (published by HarperCollins in June 1995), was featured in a front page review in The New York Times Book Review. The Washington Post called it "a valuable, cogent and well-written contribution to an enormously complex subject."
Color-Blind: Seeing Beyond Race in a Race-Obsessed World (published in January 1997 and also excerpted in Newsweek) explored America's continuing obsession with race. The New York Times Book Review called it "a book this country desperately needs, one with genuine healing potential," and included Color-Blind among its best book of the year recommendations for 1997. Cose edited an essay collection entitled The Darden Dilemma published by HarperCollins in March 1997. His debut novel, The Best Defense, was published by HarperCollins in September 1998 ("a formidable first novel...crisp, fast-paced and engaging. In a genre glutted with lightweight fare, The Best Defense reaches higher"— The Seattle Times).
Cose is also the author of A Nation of Strangers, a history of American immigration, published by William Morrow and Co. in 1992 and of The Press, published by Morrow in 1989. He is the author of Energy and the Urban Crisis (1979) and the editor of Energy and Equity: Some Social Concerns (1978), both published by the Joint Center for Political Studies. He also wrote The Rebirth of Community Power, published by Westview Press: 1983.
At the Institute for Journalism Education (at the University of California, Berkeley), Cose designed and directed a widely quoted study on journalism careers published by IJE: The Quiet Crisis: Minority Journalists and Newsroom Opportunity (1985). He also instituted and served as inaugural director of IJE's Management Training Center at Northwestern University.
In his capacity as president of Ellis Cose, Inc. Cose has produced, written and hosted the pilot for a multimedia documentary series: "Against the Odds." The radio project (which has received funding from the Ford Foundation and will be distributed by Public Radio International) profiles individuals who have overcome tremendous adversity. It aspires to provide continuing and better coverage—in public radio but also on the web and in other media, including print—of people and communities often relegated to the margins of society. It also aims to stimulate thinking on how they, and their respective societies, can overcome that marginalization. The pilot focuses on a young man from a refugee camp in northern Kenya who, studying by the light of a rechargeable lamp, managed to get himself into Princeton University.
Cose has appeared on The Today Show, Nightline, Dateline, ABC Evening News, Good Morning America, the PBS "Time to Choose" election special, Charlie Rose, CNN's Talk Back Live, and a variety of other nationally televised and local programs. He has been interviewed for British, Brazilian and Canadian television. He is also a judge for the New York Public Library Helen Bernstein Book Award for Excellence in Journalism. Cose has received fellowships or individual grants from the Ford Foundation, The Andrew Mellon Foundation, the Rockefeller Foundation, the Aspen Institute for Humanistic Studies, and numerous journalism awards—including the University of Missouri medal for career excellence and distinguished service in journalism, two Clarion awards, and four National Association of Black Journalists first place awards. He was also named the 2002 winner of the New York Association of Black Journalists' lifetime achievement award, winner of the 2003 award for best magazine feature from the National Association of Black Journalists as well as the winner of two New York Association of Black Journalists' first place 2003 awards for commentary and magazine features. In 2004 Cose was named the first recipient of the newly inaugurated annual Vision Award from the Maynard Institute for Journalism Education. In 2006 he won a Unity award for commentary and also shared in a first place award from the Society of Professional Journalists.
A Chicago native, Cose holds a master's degree in Science, Technology and Public Policy from George Washington University. He is married to Lee Llambelis, former legal director for the Puerto Rican Legal Defense and Education Fund and current director of intergovernmental relations for the Attorney General of New York. He has a daughter, Elisa Maria.
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