The following story, “I am Troy Davis” – Georgia man fights for justice from death row,” by Rebecca Agule ’10, appeared in the Oct. 2, 2009, edition of the Harvard Law Record.

On Wednesday, September 16, the Charles Hamilton Houston Institute for Race and Justice hosted an event to recognize the extraordinary death penalty case of Troy Anthony Davis. Charles Ogletree ’78, Jesse Climenko Professor of Law, moderated a panel which brought to together Davis’ sister, Martina Correia, his amicus counsel Kathleen Behan, and Jason Ewart, an Arnold and Porter associate who represented Davis during his habeas corpus petition before the 11th Circuit Court of Appeals.

[View video of the event.] 

The story of Troy Anthony Davis’ case began on August 19, 1989 with the shooting death of police officer Mark MacPhail in a Savannah, Georgia Burger King. Two years later, Troy Anthony Davis was convicted and sentenced to death. Davis has maintained his innocence since the day of his arrest, and has sought to introduce new evidence that would prove his innocence, appealing his habeas corpus petition through the entire U.S. legal system with the help of organizations like Amnesty International. Despite a lack of physical evidence proving the case against Davis, State attorneys have urged federal judges to deny his petition and defer to the Georgia courts under the 1996 Antiterrorism and Effective Death Penalty Act.

Activists on both sides of the death penalty debate became involved in the advocacy efforts, developing the mantra “Innocence Matters.” Unique campaign tactics have also included shirts printed with the phrase “I am Troy Davis”, meant to underscore the universality of his plight and its broad impact across society. In addition, a band called State Radio released the song “State of Georgia” for a web-based video describing Davis’ arrest, trial and the subsequent appeals process.

In August of 2009, the Supreme Court of the United States issued an order directing the District Court to hear and rule on Davis’ claim of innocence. In re Troy Anthony Davis, 557 U.S. ___ (2009). Although the ruling was made per curiam, there was a concurring opinion filed by Justice Stevens and joined by Justices Ginsburg and Breyer which sharply criticized the dissent filed by Justice Scalia. In the dissent, Scalia wrote, “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.” Justice Stevens dismissed this position as inconsistent with the constitution, saying, “The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.”

Professor Ogletree introduced Professor Alan Dershowitz, saying, “Before the ink was dry on Scalia’s dissent, Dershowitz had a response.” Dershowitz addressed the audience, reasserting his challenge to Scalia to debate the constitutional implications of “actual innocence.” He said, “Both the Talmud and Sharia have a statement – he or she who saves a single human life, it’s as if they have saved the entire world. You are here to save the world. The life of one man is at stake, but so are the soul of a nation and the world,” he continued. Noting the restrictions which prohibit death row inmates from speaking to the press, Correia brought blessings and messages of thanks from her brother, encouraging the audience to continue the fight for justice on behalf of those wrongly convicted and incarcerated, and praised the Charles Hamilton Houston Institute for bringing attention to the case.

A cancer survivor and Gulf War veteran, Correia recalled her reaction to Davis’ 1989 arrest and his subsequent trial. “What happened in his trial was an abomination,” she said. “The person they were describing is not my brother,” she said. Prosecutorial tactics further compounded the family’s heartache. Listed by the state as witnesses, they were effectively barred from the courtroom. “I was only allowed in the court during sentencing, when I had to beg for my brother’s life,” she said. “It was the most degrading thing I’ve ever had to do.”

As Correia began advocating on behalf of her brother, the members of her community refused to stand with her. She learned that they feared that doing so would cost them their jobs or Social Security benefits. She illustrated the tensions that surrounded the trial, as well as the isolation and ostracism her family faced. “We were the family of a cop killer. We were demonized and degraded in the media,” she said. “I started speaking out, and if my community wasn’t going to listen to me, I knew I had to go outside of my community. I was going to be his voice.”

Unable to gain proper assistance or afford a private attorney, Davis began going through transcripts himself, pulling out inconsistencies and preparing material for the habeas hearings. Such statements and pieces of evidence remain valid but are problematic, as they did not emerge during the trial itself. When Correia saw a program describing Kathleen Behan’s defense work, she immediately wrote the lawyer an email describing Davis’ case. Moved by Correia’s letter, Behan flew to Georgia and met with Davis.

Leaving the prison, Behan told Correia, “He shouldn’t be there, and I am going back to my firm and ask them to take this case.” A native of Stone Mountain, Georgia, Behan grew up in a progressive family and began working on death penalty cases with the NCAAP while still in law school. Drained by the thought of another execution, Behan had almost committed to not taking another death penalty case when she first heard from Correia. “I was up at 3 am writing a brief when I got that email from Martina. I always said, if anyone ever came to me with an innocence case, I would consider it.”

Behan described her first hours with Davis as riveting. “He was a case study of what is wrong with the passage of the Anti-Terrorism Act of 1996.” Returning to her firm, Behan began working through evidence of prosecutorial misconduct, poor investigatory tactics and misidentification. As the case made its way to the Supreme Court, Behan explored the idea of an amicus brief written by former prosecutors. She quickly found many lawyers and professors interested in becoming involved.

Jason Ewart explained the legal background of the case, emphasizing the need for an evidentiary hearing. “He was convicted on the testimony of nine people, and then witnesses began saying they lied. And more evidence accumulated pointing the finger at another person. We needed to tell the story that the police had come to people and told them, ‘This is the guy who did it, so you better pick him.’ People were threatened with charges as accessories or with revocation of their parole.”

Ewart described the standard to be met for an evidentiary hearing as “innocence-plus.” “You need to not only show innocence, but also that another constitutional violation occurred at trial or that lawyers brought up issues as soon as possible,” he said. “Twenty-seven judges have rejected this case. Most of those hearings were about legal and procedural issues. This is about showing innocence beyond a reasonable doubt.”

Ewart recalled the emotions the case has brought through moments of despair and hope. “At one point, I went to the prison for the purpose of witnessing the execution,” Ewart said. “The family said goodbye. It was like a living funeral, a wake. During that hour, the Supreme Court issued a stay.”

Still undergoing chemotherapy, Correia continues to dedicate herself to her brother. “If we are willing to kill innocent people, then we have a problem in all of society,” Correia explained. “This is not a pro or anti-death penalty case. It is about what is right. As long as I have breath in my body, I am going to speak and speak and speak,” she said. “As long as we stand by and allow it, then we are supporting these injustices. We are fighting for everyone who is unjustly incarcerated.”