Court declines to hear death-row appeal

The US Supreme Court has refused to take up the case of a Georgia death-row inmate who says the courts have denied him an opportunity to prove his innocence even after seven of nine trial witnesses changed their testimony.

The high court announced Tuesday that it had decided not to hear the appeal of Troy Anthony Davis, who was convicted and sentenced to die for the 1989 shooting death of a Savannah police officer.

Mr. Davis's Sept. 23 execution was halted by the Supreme Court two hours before it was set to take place. Tuesday's action by the justices sends the Davis case back to Georgia, where a new execution date is likely to be set.

The justices, who are sharply divided over the death penalty, did not comment on the case, and there were no dissents.

Death-penalty opponents said they were disappointed. "It is disgraceful that the highest court in the land could sink so low when doubts surrounding Davis' guilt are so high," said Larry Cox, executive director of Amnesty International USA, in a statement.

Virginia Sloan, president of the Constitution Project, said in a statement that the high court offered "the mere appearance of justice" in the Davis case. "Mr. Davis deserves to have his claims of innocence fully evaluated," she said.

At issue in the appeal was whether lower courts erred in failing to allow Davis a hearing to closely examine affidavits of changed testimony by trial witnesses. Lawyers for Davis say seven witnesses at his trial have recanted their testimony that implicated Davis as the shooter in the police officer's death. The lawyers also say they obtained statements from four new witnesses implicating someone else as the killer.

Lawyers in the Georgia attorney general's office dispute claims by Davis that no court has ever examined his new evidence. "The majority of [Davis's] affidavits have previously been presented and reviewed in state and federal habeas proceedings," writes Georgia Attorney General Thurbert Baker in his brief to the court.

"[Davis] has availed himself of numerous opportunities to challenge eyewitness testimony identifying him as the shooter," Mr. Baker writes, adding that lawyers for Davis raised the same issue during his trial 17 years ago.

The attorney general's brief quotes Davis's lawyer presenting his closing argument to the jury at the 1991 trial: "But what about the quality, the credibility of those witnesses," the lawyer asked the jury.

"You, the jurors in this case, are the sole judges of the credibility of those witnesses," he said. "Seven witnesses put on that stand by the State of Georgia recanted, contradicted, or changed their testimony."

Courts set a high standard to overturn a conviction and grant a new trial. A convict must present new evidence that had never been introduced at the trial, and it must be evidence strong enough to suggest the original verdict was wrong.

The issue in the Davis case is whether judges considering Davis's motion for a new trial should have granted him a hearing to allow an examination of his affidavits and other evidence.

The Georgia Supreme Court ruled 4 to 3 against granting Davis such a hearing. In reaching that result, the majority justices analyzed the affidavits and said they were unconvinced of Davis's innocence.

In contrast, the three dissenting justices concluded that the court was setting the bar too high in cases involving claims of actual innocence. All that had to be demonstrated, the dissenting justices said, was that the new evidence taken as a whole would create the probability of a different outcome if a new trial were held.

To do that, Davis's lawyers didn't have to prove his innocence, according to the dissenting justices. His lawyers just had to show that a reasonable doubt remained about whether he was the shooter. Even if a new jury might still find Davis guilty, the new testimony could create enough doubt to prevent imposition of the death penalty, the dissenting justices said.

The 1989 shooting took place at about 1 a.m. outside a Burger King near the bus station in Savannah.

Davis, Sylvester "Red" Coles, and a teenager were threatening a homeless man who refused to share his beer with them. At one point, Davis struck the homeless man in the head. Amid the commotion, an off-duty police officer who was still in his police uniform arrived on the scene. Davis ran. The police officer took chase. At some point, shots were fired and the officer fell to the pavement. Witnesses said Davis walked back to the police officer and shot him again at close range. One witness said Davis was smiling as he fired.

Davis disputes these facts. He says Mr. Coles shot the police officer. Coles says Davis was the shooter.

The "new" witness affidavits were gathered by Davis's lawyers in 1996 and between 2000 and 2002.

The affidavits include statements by two individuals recanting their earlier testimony that Davis had admitted independently to them that he had killed the police officer. Affidavits from three other individuals say that Coles had admitted to each of them independently that he killed the police officer, not Davis. In addition, there are several affidavits from eyewitnesses who had identified Davis as the shooter but who later said they couldn't be sure who the shooter was because the crime scene was dark and confusing.

The majority justices on the Georgia Supreme Court said they were not impressed by the affidavits, which they found to be vague and subject to differing interpretations.