Troy Davis execution set for Sept. 21: case proves the fallibility of eye witnesses.

By Brandon L. GarrettPosted Tuesday, Sept. 20, 2011, at 3:52 PM ET

Rev. Raphael Warnock speaks at a press conference in support of Troy DavisThe Troy Davis case was staged?pure theater. I do not mean "staged" because the case has attracted worldwide attention and high-profile supporters. Nor do I refer here to the drama surrounding the Georgia Board of Pardons, which at the 11^th hour denied clemency again this morning, so that Davis faces execution tomorrow?despite powerful evidence of his innocence. By "staged" I mean that the eyewitness evidence at the core of his original criminal trial was, quite literally, staged by the police.

The federal court that finally reviewed evidence of Davis' innocence agreed "this case centers on eyewitness testimony." Yet that court put to one side the fact that seven of the nine witnesses at the trial have now recanted, and new witnesses have implicated another man. The court did so while failing to carefully examine how eyewitnesses ultimately came to identify Davis as the man who shot a police officer intervening in a fight at a Burger King parking lot. The Troy Davis case?which raises a wide array of flaws in our death penalty system, our post-conviction system, and the politics of criminal justice?is thus also a case about malleability of eyewitness memory and police misconduct.

We all know how hard it is to remember the faces of strangers we might encounter on the street. (Does she look familiar?) We might think that in a high-stakes criminal case, police would take precautions to carefully test the memory of an eyewitness who saw a stranger commit a crime. Indeed, police know they must do that; they conduct lineups as one kind of test. But we have also long known that serious mistakes can happen if the police suggest to the eyewitnesses whom to pick out. This can happen unintentionally, if the officer running the lineup knows who the suspect is and gives inadvertent cues. It is also police misconduct if the officers openly suggest to the eyewitness whom to pick out. It is considered suggestive if the police go around showing eyewitnesses single photos of just the suspect they have in mind. Or if they merely make suggestive comments.

Yet somehow the police did all of the above and more in Troy Davis' case?a perfect storm of botched eyewitness-identification procedures. Police did show photo arrays to most of the eyewitnesses?eventually. Although police made up a five-photo array with Davis' picture in it, they waited five to 10 days before using it to test the memories of any eyewitnesses. Why wait? Eyewitness memory decays rapidly. But in the meantime, police plastered wanted photos with Troy Davis' image?the same photo they put in the photo array?all around the neighborhood, and it ran widely on all of the local media outlets. Witnesses did not miss those wanted postings. Witnesses also described feeling pressure to identify Troy Davis. For example, one testified at trial about being told that "if I don't cooperate with them, that I'm gonna be in prison for ten to twelve years."

And then, finally, there was the staging?a full reenactment that the police conducted. They brought three key witnesses back to the Burger King parking lot where the shooting took place. Police had one of them?the man who Davis' team maintains is the real perpetrator?play a different role?the role of an innocent bystander. Police tried to get the eyewitnesses to agree on who was standing where. Frustrated, they then located a fourth key eyewitness, and asked her "if she could place everyone in the positions that she saw them in." This was an effort to get all of their inconsistent stories straight. As a result, their stories started to merge. Only later were the witnesses shown photo arrays (which were not conducted properly in a double-blind fashion where the officer does not know which is the suspect).

One of those witnesses recalled at trial that he told police when he saw the photo array, that he was only "like sixty percent sure that was the guy," because "I was nervous, I was watching the gun." That was after seeing the wanted posters for ten days at the Burger King where he worked. But at trial?where Troy Davis was sitting at the defense table?he pointed him out to the jury. He has since recanted. Another witness pointed out Troy Davis at trial, telling the jury "you don't forget someone that stands over and shoots someone." This claim must have surprised the prosecution as much as the defense, since the police didn't even bother to show him a photo array because shortly after the incident he told police, "I wouldn't recognize him again except for the clothes." He said he did see Davis' photo in the paper the day before he testified, however. Yet another witness, who was severely injured when hit in the altercation that led up to the shooting, identified another man initially as the assailant; later at the police station he concluded he no longer recalled who it was. He agreed at trial that police "kind of reassured" him that he had it wrong. One summary of all of the various pieces of conflicting testimony is in the Appendix to U.S. Supreme Court briefs filed.

I do not know if Troy Davis is innocent or not?no one will ever know. Police have so utterly contaminated the evidence, and so much has since come to light, that there is not much of the case against him left standing?one could not imagine a jury convicting him today, much less sentencing him to death. Reading through his trial materials, I was reminded time and time again of what I saw when I read trials of the first 250 people exonerated by DNA tests, when researching my book Convicting the Innocent. (There is no physical evidence to test in Davis' case.) Of the 190 DNA exonerees who had been convicted based on eyewitness testimony, nearly all the cases had eyewitnesses who were positive at trial that the defendant was the person they saw. Yet 57 percent of them had not been certain when they first identified the defendant. They became certain only later.

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Brandon L. Garrett is a professor of law at the University of Virginia School of Law who studies criminal procedure, civil rights, and wrongful convictions. His new book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, was published by Harvard University Press. An interactive website about the book, called "Getting It Right," will soon be hosted on the Innocence Project website.

Photo by Jessica McGowan/Getty Images.

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