Why are courts refusing to give Davis a new trial?

ATLANTA --- The stay Troy Davis received less than two hours before his scheduled execution Tuesday leads most people to wonder why it took so long.

After all, seven of nine witnesses who testified against him when he was convicted of the 1989 murder of Savannah police officer Mark MacPhail have since changed their story. Attorneys on his behalf have filed several appeals, and he was spared only hours short of his execution last year while the U.S. Supreme Court considered whether lethal injection methods used in Georgia and other states was unconstitutionally cruel.

However, no state or federal court has ordered a new trial or even a hearing on the new witness statements.

In Georgia, a 28-year-old test exists to determine whether a statement merits a new trial. It tests each recantation individually, as opposed to counting their total.

One requirement is that only sworn statements be considered, unless a good reason explains why there was no notarized affidavit. Two of the seven witnesses who have recanted in Mr. Davis' case weren't sworn, and the courts concluded his attorneys didn't offer sufficient explanation.

Another requirement demands the new statement demonstrate the innocence of the convicted person, not merely throwing doubt on earlier testimony.

In Mr. Davis' case, several of the new statements were from witnesses who said they weren't really sure what they saw. Such comments don't fit the test, though, because they don't show that either the original testimony was pure fantasy or that Mr. Davis couldn't have been guilty. For example, if a witness now testified that Mr. Davis was in France during the murder, that would fit the test.

Two witnesses say they no longer stand by their testimony that Mr. Davis admitted his guilt to them while in jail awaiting trial. Georgia Supreme Court Justice Harold Melton notes that because their original statements would be admissible in a retrial, jurors would merely be faced with a question of whether Mr. Davis made an admission. But that wouldn't prove he didn't commit the murder, Justice Melton said.

Then there are the witnesses who now say another person at the scene, Sylvester Coles, confessed to them that he was the shooter. One said he heard Mr. Coles while they were smoking pot together, and another was a woman drinking poolside with Mr. Coles.

The woman, Shirley Riley, added: "Maybe Sylvester was just trying to impress me. I don't know for sure who actually shot the officer."

Those statements are hearsay that would not be admissible during a retrial, Justice Melton said.

Besides, Georgia courts are especially cautious about someone claiming to have committed a crime as a way to frustrate justice.

However, the U.S. Supreme Court gives a little more latitude to confessions given to third parties and does consider them admissible, said Ron Carlson, a University of Georgia law professor. Their pending review could result in a new trial for that reason, he said.

Reach Walter Jones at (404) 589-8424 or walter.jones@morris.com.