Death row's revolving door

Post-trial evidence in Ga. case resonates
By Kevin Johnson
USA TODAY

The timeline of Troy Davis' 18 years on death row reads like most other condemned prisoners' slow shuffle to the execution chamber.

His appeals chart a legal marathon from a courtroom in Savannah, Ga., to the U.S. Supreme Court. The execution date for Davis, convicted of killing a police officer, has been set three times — and three times the courts or Georgia officials have granted extensions.

What doesn't exist in the docket entries or trial transcripts is a formal airing of evidence discovered after Davis' conviction that, his lawyers say, could win his freedom. Seven of nine prosecution witnesses have recanted their testimony implicating him since his 1991 trial.

Davis' attorneys and advocates for the wrongfully convicted say his case, set for another U.S. Supreme Court appeal this week, represents one of possibly dozens in which courts are reluctant to consider evidence discovered after conviction that might exonerate inmates on death row.

Laura Moye, a deputy director of Amnesty International USA, which supports Davis' appeal, says the "question of innocence doesn't seem to be as much of a priority for the courts as the craving for finality."

The courts' treatment of post-conviction evidence — revised witness statements, fresh forensic information — is drawing increased attention. During the past several days, calls for new evidence reviews were at the core of major developments in three prominent death cases, including the Davis challenge:

•Davis' latest stay of execution expired Saturday, and his lawyers plan to petition the U.S. Supreme Court this week for a hearing to consider the new witness statements, says Jay Ewart, one of Davis' attorneys.

•On May 11, seven years after Justin Wolfe was sentenced to death for arranging the execution of a fellow Virginia drug dealer, a federal appeals court directed a judge in Norfolk to consider reviewing new evidence of possible innocence.

That includes an affidavit from the triggerman, Owen Barber, who had told jurors that Wolfe, 28, paid him to kill the dealer. Four years after the trial, Barber said in an affidavit that Wolfe "had nothing to do with the killing," according to court documents. Five months after that, Barber changed his story again, saying that he told the truth at trial, the documents show. Despite the conflicting accounts, court documents show that two other witnesses have corroborated Barber's declaration clearing Wolfe.

•On May 12, a local district attorney in Tennessee dropped all charges against Paul House, 47, who was sentenced to death more than 20 years ago for the rape and murder of a Luttrell, Tenn., woman.

The dismissal was based on DNA testing unavailable when he was convicted, says John Galloway, Union County, Tenn., deputy district attorney. After lower courts denied several requests for a new review of the evidence, House was saved from execution in 2006, when the U.S. Supreme Court ruled that he was entitled to a new hearing.

In a non-death-penalty case, a Texas judge in February formally exonerated Tim Cole, who died in prison in 1999 after being wrongly convicted in the 1985 rape of a college student. Although DNA testing last year implicated another man who had confessed to the attack, the Lubbock court that convicted Cole declined to clear him. Four years before Cole died, the other man confessed his guilt to Lubbock court officials, but his claims were ignored, says Cole's attorney, Jeff Blackburn.

Some death penalty supporters say the courts should be suspicious of new information generated after conviction.

"These courts have seen more bull than a Texas prairie," says Dudley Sharp, a death penalty proponent who has written extensively on the subject.

He and other death penalty advocates say the "very high" legal standards necessary to trigger full examinations of post-conviction evidence are needed to control a system that otherwise would never end.

Defense lawyers must show in part that the new evidence could not have been discovered at trial and the information — if presented at trial — likely would have changed the verdict.

"At some point, you have to come to a conclusion," Galloway says. Although the prosecutor still suspects House played a role in the 1985 rape and murder, he says dismissal after DNA testing did not match House was the "right decision."

Troy Davis' sister Martina Correia says any court that fully reviews the new witness statements would grant her brother relief. Several of the statements include accounts of police coercion during interrogations. "There is more than reasonable doubt here," she says.

Chatham County District Attorney Larry Chisolm, whose predecessor prosecuted Davis, declined to comment.

Last month, the 11th U.S. Circuit Court of Appeals rejected Davis' request for a new trial, saying it viewed the recantations "with some skepticism" and remained "unpersuaded." Judge Rosemary Barkett dissented, calling Davis' execution despite new evidence "unconscionable and unconstitutional."

If the appeals fail, "I'm still going to demand change," Correia says. "This thing is bigger than Troy Davis; there are a lot of Troy Davises out there."

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