# Amicus Curiae Brief — Davis v. Georgia, 129 S. Ct. 397 (2008) (No. 08-66)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008

## Text

AUG 15 2008 (3)

No. 08-66

IN THE

Supreme Court of the Wnited States

TROY ANTHONY DAVIS,
Petitioner,
v.
STATE OF GEORGIA
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME Court OF GEORGIA

MOTION FOR LEAVE TO FILE BRIEF
AMICUS CURIAE AND BRIEF AMICUS CURIAE
OF THE INNOCENCE PROJECT
IN SUPPORT OF PETITIONER

Barry C. SCHECK DEIRDRE O’CONNOR
PETER J. NUEFELD Counsel of Record
Davin Lortis PO. Box 210787
INNOCENCE PROJECT Chula Vista, CA 91921
100 Fifth Avenue (404) 392-0249
3rd Floor

New York, NY 10011
(212) 364-5340

Attorneys for Amicus Curiae

MOTION FOR LEAVE TO FILE AMICUS

Pursuant to Rule 37.3(b) of the Rules of the
Supreme Court of the United States, Deirdre
O'Connor! (Of Counsel) and Barry C. Scheck,
Peter J. Neufeld, and David Loftis of the Innocence
Project, Inc., (“the Project”) hereby request leave to
file the accompanying amicus curae brief. This
brief is submitted in support of the petition for
writ of certiorari to the Supreme Court of Georgia.
Petitioner Troy Davis has consented to the filing of
this brief. Respondent State of Georgia has
withheld consent.

As set forth in the accompanying brief, the
Project provides pro bono legal services to indigent
prisoners for whom post-conviction DNA testing of
evidence can yield conclusive proof of innocence.

The Project is greatly concerned that the
Georgia Supreme Court has set an impossibly
high standard preventing Mr. Davis and other
innocent Georgians from having evidence of
innocence heard. Accordingly, the Project
respectfully requests leave to file’ the
accompanying amicus cunae brief.

Respectfully submitted,

Deirdre O'Connor
Of Counsel of Record for
Innocence Project, Inc.

' Deirdre O'Connor's application for admission to the United States
Supreme Court bar has been processed. She is scheduled for admission
on August 18, 2008.

ii

TABLE OF CONTENTS

BRIEF AMICUS CURIAE OF THE INNOCENCE
PROJECT IN SUPPORT OF PETITIONER i

TABLE OF CONTENTS il
TABLE OF AUTHORITIES iv
INTEREST OF AMICUS CURIAE 1
SUMMARY OF ARGUMENT 2
ARGUMENT 4

I. A Deeply Divided Court Created A Rule Of
Law Authorizing Categorical Denial Of Due
Process For Innocent Georgians Convicted
On The Word Of Perjurers. 4

II. The Impossible High Purest Fabrication
Standard Would Have Failed to Protect At
Least Three Known Innocent Death Row
Inmates Who Were Convicted Based On
Perjured Testimony. 10

Ill. The Majority’s Blind Adherence To This
New Standard And Its Failure To Apply
Today’s Science To The Undisputed Facts,
Which Demonstrate The Unreliability Of The
Now-Disavowed Identification Evidence, Is
Further Proof Of This Standard’s Failure. 12

A. The Court Ignored Recent Scientific
Studies Establishing That The Undisputed
Viewing Conditions And Circumstances Of
This Crime Precluded A Genuine Basis For
Subsequent Recognition. 12

ili

1. The Extraordinarily Short Duration Of
The Assault Of Young And Shooting Of
Officer MacPhail Did Not Provide Sufficient
Time To Encode Crucial Detail. 14

2. The Presence And Discharge Of A Gun
Took Focus Away From The Face Of The
Shooter. 15

3. It Is Scientifically Impossible For Ferrell
To Subsequently Recognize A Stranger Seen
In A Dimly Lit Parking Lot From 160 Feet
Away. 16

B. The Court Did Not Consider The
Scientifically Supported Probability That
Witnesses Selected The Police Suspect
During A Suggestive Identification Process,
Which Created An Ideal Situation For
Memory Source Error And False
Identifications. 19

1. The Saturation Of Davis’ Image Exposed
Witnesses To A Contaminant That

Increased The Probability Of Memory

Source Error And Rendered The Witnesses’
Later Selection Of Davis Unreliable. 20

2. Non-Blind Administration After Repeated
Exposure To Davis’ Image Destroyed The
Procedural Protections Of A Properly
Conducted Photo Array And Resulted In
Unreliable Evidence Of Guilt. 21

CONCLUSION 23

iV

TABLE OF AUTHORITIES

Federal Cases

Board of Pardons v. Allen, 482 U.S. 369 (1987)._ 5
Boddie v. Connecticut, 401 U.S. 371, 379 (1971) 5
Drake v. Kemp (Drake II), 762 F.2d 1449 (11 Cir.

1985) 11
Guibert v. California, 388 U.S. 263 (1967) ___—s 20
Manson v. Brathwaite, 432 U.S. 98 (1976) ___—_— 21
Stovall v. Denno 388 U.S. 293 (1967). 20
Stovall, 388 U.S. at 301-302. 20

Tennessee v. Lane, 541 U.S. 509, 523 (2004) ss 55
United States v. Wade, 388 U.S. 218 (1967)_ 20
State Cases

Drake v. State, 248 Ga. 891, 894 (1982)__‘:10, 11
Ex parte Adams, 768 S.W.2d 281 (1989)___—s«10

State ex rel. Amrine v. Roper, 102 S.W.3d 541 (Mo.
2003) 9

Timberlake v. State, 271 S.E.2d 792 (1980).__2, 4

Statutes

0.C.G.A § 5-5-23 2,4

Other Authorities

Alexandra Natapoff, The Faces Of Wrongful
Conviction Symposium: Beyond Unreliable: How
Snitches Contribute To Wrongful Convictions, 37
Golden Gate U.L. Rev. 107 (2006) 7

Blind to Change, Even as It Stares Us in the Face,
New York Times, April 1, 2008 14

Bradfield, A.L & Wells, G.L., ‘Good, You Identified
the Suspect’: Feedback to Eyewitnesses Distorts
Their Reports Of the Witnessing Experience, 83
J. Appl. Psychol. 360 (1998) 21

Brian Murray & Joseph C., He Lies, You Die:
Criminal Trials, Truth, Perjury, and Fairness, 27
N.E. J. on Crim. & Civ. Con. 1 (2001) 7

Daniel Medwed, Anatomy Of A Wrongful
Conviction: Theoretical Implications And Practical
Solutions, 51 Vill. L. Rev. 337 (2006) 7

Daniel Wolf, I Cannot Tell a Lie: The Standard for
New Trial in False Testimony Cases, 83 Mich. L.
Rev. 1925 (1985) 7

Deffenbacher, K.A., et al., A Meta-Analytic Review
of the Effects of High Stress on Eyewitness
Memory, 28 Law and Human Behavior 687
(2004) 13

vi

Douglas & Steblay, Memory Distortion in
Eyewitness: A Meta-Analysis of the Post-
Identification Feedback Effect, 20 App. Cognitive .
Psychol. 991 (2006) 21

Dysart, J., Lindsay, R.C.L., Hammond, R.,
Dupuis, P, Mugshot Exposure Prior to Lineup
Identification: Interference, Transference, and
Commitment Effects, 86 Journal of Applied
Psychology 1280 (2001) 19

Hodes, William W., Executing The Wrong Person,
29 Loy. L.A. L. Rev. 1547 11

Janice J. Repka, Rethinking The Standard For
New Trial Motions Based Upon Recantations As
Newly Discovered Evidence, 134 U. Pa. L. Rev.
1433 (1986) 7

Jonathan Liebman and Joel Cohen, Perjury and
Civil Litigation, 20 Litig. 43 (1994); Lisa Harris,
Perjury Defeats Justice, 42 Wayne L. Rev. 1755
(1996) 6

Leippe, M.L. et al, Crime Seriousness as a
Determinant of Accuracy in Eyewitness
Identifications, 63 J. of Applied Pyschol. 345
(1978) 13

Loftus, E. F. & Greene, E., Warning: Even memory
for faces may be contagious, 4 Law And Hum.
Behav. 323 (1980). 19

Loftus, E., Eyewitness Testimony, Harvard
University Press, 25-27 (1996) 14

Vil

Loftus, G.R. & Harley, E.M., Why Is It Easier to
Identify Someone Close Than Far Away, 12
Psychonomic Bull. & Rev. 43 (2005) 17

Mark Curriden, The Lies Have It: Judges Maintain
That Perjury Is on the Rise, but the Court System
May Not Have Enough Resources to Stem the
Tide, A.B.A.J., May 1995, at 68 5

Memon, A., Hope, L., & Bull, R., Exposure
duration: Effects on eyewitness accuracy and
confidence, 94 British J. of Psychol. 339 (2003).

13

Richard H. Underwood, Perjury! The Charges and
the Defenses, 36 Dua. L. Rev. 715 (1998) 6

_Ross, D. F., Ceci, S. J.. Dunning. D., & Toglia, M.
P., Unconscious transference and mistaken
identity: Toward a memory blending approach,
(1994) in Ross, D. F., Read, J.D., & Toglia, M. P.
(Eds.) Adult eyewitness memory: Current trends
and developments (Cambridge University Press
1994). 19

Sharon Cobb, Gary Dotson As Victim: The Legal
Response To Recanting Testimony, 35 Emory
L.J. 969 (1986) 7

Shawn Armbrust, Reevaluating Recanting
Witnesses: Why The Red-Headed Stepchild Of
New Evidence Deserves Another Look, 28 B.C.
Third World L.J. 75 (2008) ae

Vili

Steblay, N. M. A Meta-Analytic Review of the
Weapon Focus Effect, 16 Law And Hum. Behav.
413, 420-21 (1992). is

The Supreme Court on Trial: How the American
Justice system Sacrifices Innocent Defendants,
George C. Thomas III 6

Wells, G. L. & Olson, E. (2003). Eyewitness
identification. Annual Review of Psychology, 54,
277-295. 13

Wells, G., et al, Eyewitness Identification
Procedures: Recommendations for Lineups and
Photospreads, 22 Law and Hum.Behav. 603
(1998). 21

INTEREST OF AMICUS CURIAE!

The Innocence Project, Inc. (“the Project”) is
a nonprofit legal clinic and resource center
created by Barry C. Scheck and Peter J. Neufeld.
Founded at the Benjamin N. Cardozo School of
Law in 1992, the Project provides pro bono legal
services. to indigent prisoners for whom post-
conviction DNA testing of evidence can yield
conclusive proof of innocence. The Project
pioneered the post-conviction DNA litigation
model that has to date exonerated 218 innocent
persons, and served as counsel or provided
critical assistance in a majority of these cases.

The advent of forensic DNA testing and the
use of such testing to review criminal convictions
have provided scientific proof that our system
convicts innocent people, and that wrongful
convictions are not isolated or rare events.
Although there are untold numbers of cases in
which people have been wrongfully convicted but
there is no DNA evidence that can scientifically
prove their innocence, DNA testing has opened a
window into wrongful convictions so that we may
study the causes of this injustice and recommend

1 Counsel of record for all parties received notice of the
Amicus curiae’s intention to file this brief at least 10 days
prior to the due date. Petitioner has consented to the
Network’s filing of this bnef and Respondent has withheld
consent. No counsel for a party authored this brief in whole
or in part, and no counsel or party made a monetary
contribution intended to fund the preparation or submission
of this brief. No person other than amicus cunae, its
members, or its counse! made a monetary contnbution to
its preparation or submission.

2

practices to minimize the chance of its
occurrence. 2

SUMMARY OF ARGUMENT

Innocence does not fade with the passage of
time. Perjured testimony and other forms of
unreliable evidence, though, often cannot
withstand the test of time or the evolution of
science. At the heart of the Troy Davis case are
questions of innocence and fabricated evidence.
Seven recanting witnesses - many of whom
provided highly implausible testimony at trial —
and the nine additional witnesses implicating
Redd Coles, undermine our confidence in the
verdict and compel a meaningful reexamination of
all the evidence.

The Georgia Legislature created a state right
to a new trial for the wrongfully convicted who can
establish that new evidence of innocence “would
probably produce a different verdict.” O.C.G.A §
5-5-23; Timberlake v. State, 246 Ga. 488; 271
S.E.2d 792 (1980). By its terms it provided for a
meaningful review of Mr. Davis case, and indeed a
new trial. He received neither.

In Davis, the Georgia Supreme Court
changed the statute’s materiality standard to
require proof of the purest fabncation in witness
recantation cases. As interpreted, this is an
unattainable measure that necessarily thwarts
the statutorily conferred right to obtain relief from
a wrongful conviction, thus denying due process

—_

2 Appendix contains summary biographies of other
signatones.

3

to anyone whose conviction was secured via
perjured testimony.

As nearly half of the Georgia Supreme Court
justices recognized, the purest fabrication
standard is so “rigid” that the “fundamental
question [of] whether or not an innocent person
might have been convicted or even, as in this
case, might be put to death” went unanswered.
App. A. at 17a.

This decision creates a rule of law
authorizing categorical denial of due process for
innocence cases in Georgia. It gives the trial court
complete freedom to dismiss’ evidence of
innocence without evaluating its_ reliability,
subverting the well-considered, truth-seeking
function of post-conviction proceedings proscribed
by the legislature. This new judicially-minted,
purest fabrication standard will result in the
imprudent disregard of reliable evidence of
innocence.

Critically, the Davis majority, constricted by
its own newly-crafted standard, ignored
scientifically supported concerns’ that’ the
evidence used to convict Mr. Davis was unreliable.
The now-disavowed trial testimony included
reports of perception and memory beyond human
capacity. Even the two non-recanting witnesses,
Redd Coles (who has now been. identified by nine
people as the shooter) and Stephen Sanders,
presented inherently incredible and scientifically
implausible testimony.

Evidence of innocence should not _ go
unheard especially in a case, like Mr. Davis’,
where the conviction was based on scientifically
unreliable evidence and the legislature has

4

provided a remedy to hear such claims. Deeply
rooted in our notion of justice is the recognition of
the court’s duty to protect the innocent. A panoply
of constitutional safeguards guarantees the
accused a fair trial so that society can trust
findings of guilt. The hallmark of a fair trial is its
ability to successfully fulfill its truth-seeking
function. In any quest for truth, the reliability of
the evidence should take center stage. When new
information surfaces after trial that causes
reasonable people to lose confidence in the jury’s
guilty verdict — whether it is due to the ineffective
performance of defense counsel, the failure of the
prosecutor to disclose material evidence, or the
realization that unreliable and false testimony
resulted in the conviction of an innocent person —
our commitment to justice and truth compels
corrective action and a process through which
that can occur. The Georgia legislature has
provided an avenue for redress of such claims,
but its Supreme Court arbitrarily and capriciously
foreclosed claims stemming from perjury, and
subsequent recantation.

The time has come for this Court to
articulate the minimum requirements for a
constitutionally adequate procedure so_ thai
claims of wrongful convictions based on fabricated
testimony can be properly evaluated and innocent
people protected.

ARGUMENT

I. A Deeply Divided Court Created A Rule Of
Law Authorizing Categorical Denial Of Due

5

Process For Innocent Georgians Convicted On
The Word Of Perjurers.

The Georgia legislature created a right to a
new trial for any wrongfully convicted person who
can establish that new evidence of innocence
“would probably produce a different verdict.”
O.C.G.A § 5-5-23; Timberlake v. State, 246 Ga.
488; 271 S.E.2d 792 (1980). The Legislature did
not limit or classify the new evidence, but rather
broadly asserted that a petitioner could present
“any material evidence” to meet this standard.
This statute unambiguously creates a liberty
interest by conferring the right to a new trial once
the “substantive predicates’ have been met.”
Board of Pardons v. Allen, 482 U.S. 369 (1987).
This right exists independent of the evidentiary
cause of the wrongful conviction and recantation
evidence that is “material” fits comfortably within
the statute’s ambit.

It is a well-established due process principle
that once a state has created a statutory scheme
affecting a litigant's rights and interests, it must
provide “‘a meaningful opportunity to be heard by
removing obstacles to their full participation in
judicial proceedings” Tennessee v. Lane, 541 U.S.
509, 523 (2004) (citing Boddie v. Connecticut, 401
U.S. 371, 379 (1971); MLB. v. S.L.J., 519 U.S.
102 (1996)). Here, the court’s’. arbitrary
construction of the statute, under its rigid purest
fabrication standard, imposes unconstitutional
obstacles to full participation for those seeking
relief from wrongful convictions based on

3 Amict incorporate by reference the petitioner’s arguments
on this point.

6

demonstrably false testimony. This arbitrary
construction will undoubtedly have the innocent
languish in prison, and unduly risks wrongful
execution — concerns, which the post-conviction
statutory scheme undoubtedly sought to acdress.

It is axiomatic that some witnesses commit
perjury. And, despite the system’s truth-seeking
function, some perjurers get away with it. Mark
Curriden, The Lies Have It: Judges Maintain That
Perjury Is on the Rise, but the Court System May
Not Have Enough Resources to Stem the Tide,
A.B.A.J., May 1995, at 68; see also Jonathan
Liebman and Joel Cohen, Perjury and Civil
Litigation, 20 Litig. 43 (1994); Lisa Harris, Perjury
Defeats Justice, 42 Wayne L. Rev. 1755 (1996)
("Perjury has thus far evaded all solutions, is
pervasive in the courtroom, and is on the
increase."). Id. at 1755. Indeed, “[mJany lawyers
answer that [perjury] is the natural result, and
the tolerable cost, of an adversary system of
justice.” Richard H. Underwood, Perjury! The
Charges and the Defenses, 36 Duq. L. Rev. 715
(1998). In The Supreme Court on Trial: How the
American Justice system Sacrifices Innocent
Defendants, George C. Thomas III concludes that
“we have a problem with [ ] perjury” and other
categories of false evidence. Id. at 39. “It is the
too frequent failure of the adversary system itself
that produces wrongful convictions.” Id..

For perjurers who are later moved to speak
the truth, their recantations are received with a
disproportionate skepticism that can perpetuate

- 7

eternal injustice.’ Shawn Armbrust, Reevaluating
Recanting Witnesses: Why The Red-Headed
Stepchild Of New Evidence Deserves Another Look,
28 B.C. Third World L.J. 75 (2008); Daniel
Medwed, Anatomy Of A _. Wrongful Conviction:
Theoretical Implications And Practical Solutions, 51
Vill. L. Rev. ~37 (2006); Alexandra Natapoff, The
Faces Of Wrongful Conviction Symposium: Beyond
Unreliable: How Snitches Contribute To Wrongful
Convictions, 37 Golden Gate U.L. Rev. 107 (2006);
Brian Murray & Joseph C., He Lies, You Die:
Criminal Trials, Truth, Perjury, and Fairness, 27
N.E. J. on Crim. & Civ. Con. 1 (2001); Sharon
Cobb, Gary Dotson As Victim: The Legal Response
To Recanting Testimony, 35 Emory LJ. 969
(1986); Janice J. Repka, Rethinking The Standard
For New Trial Motions Based Upon Recantations As
Newly Discovered Evidence, 134 U. Pa. L. Rev.
1433 (1986); Daniel Wolf, I Cannot Tell a Lie: The
Standard for New Trial in False Testimony Cases,
83 Mich. L. Rev. 1925 (1985).

The Georgia Legislature developed a sound
analytical framework for undertaking this problem

4 Amici acknowledge that not all recanting witnesses have
committed perjury. Every recanter necessarily asserts that
their trial testimony was inaccurate. Some were simply
mistaken or improperly influenced to believe the falsity;
their testimony was inaccurate, but honest. Others
knowingly told an untruth. It is the latter ilk that is most
prevalent in Mr. Davis case and the most troubling for
courts. For simplicity sake, this brief uses perjurer
interchangeably with recanting witness. Amici recognize
that witnesses who lie out of fear prompted by police
intimidation or out of concern that the true perpetrator will
cause them harm are deserving of greater empathy than
connoted by the label of perjurer.

8

within its statutory scheme. If the recantations
were material, i.e., probably produce a different
outcome, a new trial is required. The Georgia
Supreme Court, however, arbitrarily placed its
own effectively insurmountable hurdled onto such
claims, requiring proof of the purest fabrication.
Even worse, here, it decided that the failure to
meet such a standard could be determined
without a hearing though there were seven
recantations.

Indeed, the Davis court held that each of
the seven recantation “affidavits lack[ed] the type
of materiality required to support’ an
extraordinary motion for new trial, as they do not
show the witnesses’ trial testimony to have been
the ‘purest fabrication.” App. A. at 7a; see also
8a-10a. It is hard to imagine any recantation — or
collection of recantations — that could satisfy this
standard. As noted by the dissent, the urdeniable
effect of the holding is to categorically exclude
recantations. App. A. at 18a.

By definition, a recantation always involves
a prior inconsistent version, e.g., “I lied when I
said X, Y is really the truth.” It can never, on its
own, conclusively prove the falsity of the first
version. The most to which a recantation can
aspire is to ultimately, at trial, be the more
persuasive of two competing versions of fact.
Requiring proof of the purest fabrication as a
threshold to justify a new trial necessarily
translates into a categorical exclusion.

-Indeed, the court’s analysis in this very case
demonstrates the impossibility of meeting its
standard. The court parsed each _ statement
individually trying to determine whether it alone

9

met the pure fabrication standard. It, however,
refused to engage in reviewing the collective
impact of the seven recantations taken together.
Moreover, by deeming the evidence mere
recantation, it did not properly weigh the scientific
testimony. The statute, which requires an
assessment of any material evidence, would
require the court to weigh the impact of the
statements collectively and in conjunction with
the supporting scientific evidence.

The Georgia court denied even a hearing on
the issue -- though, nonetheless, claiming not to
foreclose the possibility of hearings to subsequent
litigants. - App. A. at 3a. But it is unclear what
purpose a hearing would serve if the post-
conviction court were not then authorized to make
a finding that a recantation was_ sufficiently
reliable to warrant a new trial. No matter how
great the indicia of reliability, the recantation will
always compete with the earlier version. A judge
may find the recantation more credible, but could
not find, as a matter of law, that the original
version was the purest fabrication.

No longer tethered to any _ statutory
moorings, post-conviction courts now have
unfettered discretion to deny claims where there
is objectively material evidence mandating a new
trial. Indeed, in contradiction to legislative intent,
it would now be an abuse of discretion in Georgia
to grant a new trial if there is “material evidence”
but no proof of the “purest fabncation.” A trial
court in DeKalb County, then, could grant a
petitioner a new trial based on an ineffectiveness
claim, but a trial court in Chatham County would
have to deny such a nght to a petitioner who

10

provides equally compelling evidence of innocence
through recantation. Hence, Davis — a death row
inmate with seven recanting witnesses and nine
others implicating another - under the pure
fabrication standard was arbitrarily denied his
statutorily conferred right to a new trial. Indeed,
he never received a hearing on the merits.

Il. The Impossible High Purest Fabrication
Standard Would Have Failed to Protect At
Least Three Known Innocent Death Row
Inmates Who Were Convicted Based On
Perjured Testimony.

This standard’s failure is already proven by
cases of known innocents. At least three death
penalty cases depended entirely on recantations
to prove their innocence. State ex rel. Amrine v.
Roper, 102 S.W.3d 541 (Mo. 2003); Ex parte
Adams, 768 S.W.2d 281 (1989); Drake v. State,
248 Ga. 891, 894 (1982). Each man ultimately
found relief; two found relief in court, the
Georgian from the Board of Pardons and Paroles.
Id. All three men would have been executed
under the purest fabrication standard.

Joseph Amrine was_ convicted and
sentenced to death on the word of three prison
inmates; all of whom ultimately recanted. If Davis
were applied to Amrine, the court would have been
forced to deny relief because the three
recantations “do not show the witnesses’ tnal
testimony to have been the ‘purest fabrication.”
App. A. at 7a. Fortunately Amrine was wrongfully
convicted in Missouri, not Georgia.

If proof of the purest fabrication were
required in Randall Adams’ case, he too would

11

have been executed. His conviction was based on
several purported eyewitnesses. One, David
Harris, later confessed and recanted his trial
testimony against Adams. The court granted
relief even though two other’ purported
eyewitnesses did not recant. Adams would not
have fared so well in Georgia. The belief that
Harris “could subvert the ends of justice by falsely
admitting the crime to others and then absenting
himself”? would have rendered Harris’ confession
meaningless. App. A. at lla. Fortunately for
Adams his ordeal took place in Dallas, Texas and
not Savannah, Georgia.

Henry Drake was one of six known innocent
Georgia death row inmates to ultimately secure
his freedom. Drake was convicted based entirely
on the uncharged perjury of the actual killer,
William Campbell. The only way Drake could
prove his innocence, beyond the alibi witnesses he

presented at trial, was through Campbell’s
_ recantation. The Georgia Supreme Court denied
him relief and held that the “effect of Campbell’s
new testimony was clearly to impeach the
credibility of his earlier sworn statements.” Drake
v. State, 248 Ga. 891, 894 (1982).

Ultimately, Drake was pardoned.> Had he
been required to meet the purest fabrication

5 The Eleventh Circuit ordered a new trial due to Sandstrom
error and improper sentencing arguments. Drake v. Kemp
(Drake HI), 762 F.2d 1449 (11 Cir. 1985). At retrial, he was
convicted and sentenced to life. The Board freed Drake in
November 1987, finding that Campbell lied. Hodes, William
W., Executing The Wrong Person, 29 Loy. L.A. L. Rev. 1547;
Georgia’s Death Row; Waiting to die. Drake’s reaction: “If |
didn't have all those appeals, I’d be dead. I always thought

12

standard, it is unlikely that he would have been
granted a hearing, which produced evidence that
captured the attention of others and ultimately
led to his freedom.

Ill. The Majority’s Blind Adherence To This
New Standard And Its Failure To Apply Today’s
Science To The Undisputed Facts, Which
Demonstrate The Unreliability Of The Now-
Disavowed Identification Evidence, Is Further
Proof Of This Standard’s Failure.

When today’s accepted scientific truths are
applied to the undisputed’ circumstances
surrounding witnesses’ initial observations, the
reliability of their subsequent selection of Davis is
greatly undermined. As a matter of science, key
“estimator variables” and contaminating pre-
identification exposure produced highly unreliable
claims of recognition. Current science then
constitutes intrinsic evidence supporting the
recantations. The application of the purest
fabrication standard, however, caused the court to
ignore these studies, and fail to conduct hearings
where these scientific studies could help establish
the validity of the recantations. The court’s blind
adherence to the purest fabrication standard
arbitrarily prevented it from considering objective
proof supporting the reliability of the recantations.

A. The Court Ignored Recent Scientific
Studies Establishing That The Undisputed
Viewing Conditions And Circumstances Of This

I'd be electrocuted. I worried they’d mix up the papers, and
poof you’re gone.” /d.

13

Crime Precluded A Genuine Basis For
Subsequent Recognition.

The uncontroverted evidence at trial
demonstrated that the sudden unexpected assault
and murder® in a poorly lit parking lot late at
night’? was witnessed by people under the extreme
stress of being in the line of fire.? Scientific
research demonstrates that heightened stress at
the moment of perception reduces identification
accuracy. Deffenbacher, K.A., et al., A Meta-
Analytic Review of the Effects of High Stress on
Eyewitness Memory, 28 Law and Human Behavior
687 (2004). Science also confirms that which
should appeal to common sense: event-related
factors (e.g., duration, awareness of crime,
lighting, distance/vantage point, the presence of a
weapon, high levels of stress, intoxication, and
other physical or mental limitations) affect the
ability of a witness to accurately encode
identifying information. Wells, G. L. & Olson, E.
(2003). Eyewitness identification. Annual Review
of Psychology, 54, 277-295.

° Officer MacPhail was shot within seconds of the assault on
Young. The shooter fled immediately.

7 At the time of shooting the Burger King was closed and its
exterior lights were turned off. The parking lot was dimly lit.
According to Leu Bishop, Burger King’s manager, there was
enough light so that “you’re not going to walk into anything
or trip over anything.” But it was too dark for Bishop to
recognize the familiar officer as he laid in the parking lot
until Bishop moved close enough (10-15 feet away) to see
Officer MacPhail’s uniform. The shooting occurred in “the
worst area in the parking lot,” as the street light on the
corner was bdilocked by a large tree located directly
underneath. According to Young, “I couldn’t see, you, it was
just dark, right the particular spot we were standing.”

8 Moreover, many were also intoxicated and/or injured.

14

1. The Extraordinarily Short Duration Of
The Assault Of Young And Shooting Of
Officer MacPhail Did Not Provide
Sufficient Time To Encode Crucial Detail.

Common. sense. dictates, and_ science
confirms, that the shorter the exposure the more
difficult to encode enough information for later
recognition. Memon, A., Hope, L., & Bull, R.,
Exposure duration: Effects on eyewitness accuracy
and confidence, 94 British J. of Psychol. 339
(2003). The degree of a witness’ attention as
events unfold is as critical to the witness’ ability
to take in meaningful information as the duration
of observation and proximity to the criminal. See
Leippe, M.L. et al, Crime Seriousness as a
Determinant of Accuracy in Eyewitness
Identifications, 63 J. of Applied Pyschol. 345
(1978). If a witness is unaware that a crime is
occurring, interactions or mere proximity will
often not leave a lasting impression. A recent
Cornell study illustrates the concept of inattention
blindness. Researchers conducted a series of
experiments in which pedestrians who were giving
directions to someone posing as a lost tourist did
not notice when, midway through the exchange,
the sham tourist was replaced by another person
altogether. Blind to Change, Even as It Stares Us
in the Face, New York Times, April 1, 2008; see
also Loftus, E., Eyewitness Testimony, Harvard
University Press, 25-27 (1996). Duration, then,
should be assessed in conjunction with the time
period that the witness is paying attention to the
perpetrator.

In this case, the pistol-whipping of Young
first captured the attention of the stranger

15

eyewitnesses. Officer MacPhail was shot within
seconds of the assault on Young. The shooter fled
immediately. According to Daniel Kinsman, one
of Sanders’ military friends in the van, the
incident was “over as soon as it began.” App. A.
at 13a.

2. The Presence And Discharge Of A Gun
Took Focus Away From The Face Of The
Shooter.

Forensic psychologists have documented
that, during a crime, the witness’ attention is
drawn to any visible weapon and away from the
culprit’s facial and physical characteristics.
Experiments involving videotaped robberies with
some culprits brandishing a gun and others
concealing it repeatedly demonstrated that
eyewitness identifications were less accurate when
the gun was brandished. This is known as
weapon focus effect. In a recent meta-analysis,
Dr. Nancy Steblay examined 19 studies of weapon
focus effect and found that “|t]he presence of a
weapon does make a significant difference in
eyewitness performance... particularly in crimes
of short duration in which a threatening weapon
is visible.” Steblay, N. M. A Meta-Analytic Review
of the Weapon Focus Effect, 16 Law And Hum.
Behav. 413, 420-21 (1992).

In this case, even if witnesses had not
sought cover, they would have instinctively
focused on the gun, not the shooter’s face. Given
the extremely short duration of this volatile crime
in which witnesses were immediately made aware
of the gun, the opportunity for meaningful
observations were significantly diminished. The

16

well-documented weapon focus effect supports the
probability that some influence other than true
recognition accounted for the witnesses’
subsequent selection.

In all probability, most witnesses did not
maintain a vantage point once the gun was
displayed. Common sense dictates that people
will remove themselves from the line of fire.? The
brief duration, the weapon, and the instinctive
inclination toward self-preservation, renders
Murray and Williams’ purported ability § to
“recognize” the shooter incredibl!°

3. It Is Scientifically Impossible For
Ferrell To Subsequently Recognize A

* Indeed, Redd’s threat of producing a gun caused Murray
and two unidentified companions to run for cover. The
sound of gunfire caused Antoine Williams to seek shelter
under the dash of his car. Securing their safety ended their
period of observation.

© Though Stephen Sanders claimed he maintained visual
contact after, shots were fired, he candidly admitted that
night that his observations were insufficient to enable
identification. Sanders was seated in a van with seven U.S.
Air Force buddies ordering food at the drive thru window
after a night of partying. As Young was trying to get
assistance from Sanders and his friends in the van, shots
suddenly rang out. Bishop told his employees and the van’s
occupants to duck for cover.

Even assuming Sanders did not heed Bishop’s advice, his
inability to describe the shooter beyond “a black man in
twenties” and his unequivocal assertion that he “wouldn't
recognize them again” rendered his in-court identification
two years later extremely implausible. Indeed, his selection
is the most troubling of all in a field where the competition
for that distinction is at an all-time high. Something other
than true recognition was at work

17

Stranger Seen In A Dimly Lit Parking Lot
From 160 Feet Away.

A famous woman is depicted
here as she would appear from
a distance of 172 feet. The lack
of sufficient visual details
makes identifying her a
challenge beyond our human
capacity. As Dr. Geoffrey
Loftus states:

When you see anything at a distance the
human visual system starts to lose small
details. The greater the distance the coarser
the detail you lose... . . At 10 feet you might
not be able to see individual eyelashes on a
person's face. At 200 feet you would not
even be able to see a person's eyes. At 500
fect you could see the person's head but
just as one big blur. There is equivalence
between size and blurriness. By making
something smaller you lose the fine detail.
Loftus, G.R. & Harley, E.M., Why Is It Easier
to Identify Someone Close Than Far Away,
12 Psychonomic Bull. & Rev. 43 (2005).

As the photos below illustrate, a known face
may be clearly recognizable at 5 feet or even 43
feet; however, at distance of 100 feet or more, the
fine detail necessary for true recognition is lost so
that even an easily recognizable face like Julia
Roberts’ is but a blur. If it were possible to
recognize the blurred woman, then her name
would have occurred to the viewer immediately.

18

. ie ) oe 2;
172 feet 100 feet 43 feet

5 feet

Yet, Dorothy Ferrell testified at Davis’ trial
that she recognized a complete stranger whom she
viewed briefly from a distance of at least 160 feet!!
as he quickly moved about in a poorly lit parkig
lot with a group of other black men. The only
plausible explanation is that she did not recognize
Davis from the lot that night, but, rather,
accepted Detective Wilson’s suggestion when he
displayed a single photo of Davis to her a few days
after the shooting.

11 Ferrell claimed she witnessed the event from the edge of
the hotel parking lot, near a palm tree, where she remained
for the duration. The Thunderbird Inn is located on the
southeast corner of the intersection of Oglethorpe Avenue
and Fahm Street. The Burger King parking lot is located on
the northeast corner of the intersection of Oglethorpe
Avenue and Fahm Street. There are two small palm trees at
the hotel parking edge; one is 160 feet away from the
location of shooting, the other 200.

19

B. The Court Did Not Consider The
Scientifically Supported Probability That
Witnesses Selected The Police Suspect During
A Suggestive Identification Process, Which
Created An Ideal Situation For Memory Source
Error And False Identifications.

A true identification occurs when the
witness recognizes the person as the actual
perpetrator. When the police expose witnesses to
the suspect’s image prior to the “official”
identification procedure and make it abundantly
clear that he is the police suspect then the
witnesses’ subsequent selection of that man is
likely the product of the unnecessary suggestivity
and/or memory source error. In other words, the
witnesses did not recognize the suspect; instead,
they simply tollowed the lead of the police who
were determined to build a case against Troy
Davis. Depending on the witnesses’ motives, they
may have genuinely believed that the police
suspect was the man that they observed (memory
source error) or they may have acquiesced out of
self-interest and implicated the suspect to
appease the police (false identification). The
court’s categorical disqualification of the
recantations caused it to fail to consider this
undisputed and objective corroboration of those
recantations.

20

1. The Saturation Of Davis’ Image
Exposed Witnesses To A Contaminant
That Increased The Probability Of
Memory Source Error And Rendered The
Witnesses’ Later Selection Of Davis
Unreliable. :

Memory source error occurs when a witness
incorrectly attributes a familiar face to the wrong
source because he unconsciously transfers
memory of the familiar face from one context to
another. A witness who has seen the suspect
before may, through transference, mistake him for
the perpetrator in a later photo array. Decades of
scientific studies reveal that prior exposure to a
suspect’s image will make a subsequent selection
of the suspect more likely. Dysart, J., Lindsay,
R.C.L., Hammond, R., Dupuis, P, Mugshot
Exposure Prior to Lineup Identification:
Interference, Transference, and Commitment
Effects, 86 Journal of Applied Psychology 1280 —
(2001); Loftus, E. F. & Greene, E., Warning: Even
memory for faces may be contagious, 4 Law And
Hum. Behav. 323 (1980). Ross, D. F., Ceci, S. J.,
Dunning. D., & Toglia, M. P., Unconscious
transference and mistaken identity: Toward a
memory blending approach, (1994) in Ross, D. F.,
Read, J.D., & Toglia, M. P. (Eds.) Adult eyewitness
memory: Current trends and developments
(Cambridge University Press 1994).

Prompted by Redd Coles’ self-serving
accusation against Davis, the police acquired
Davis’ photo on the evening of August 19, 1989.
Yet, none of the witnesses were shown a photo
array until August 24, 1989; some were not asked
until August 28 and Sanders was not shown the

21

array until just before he testified at trial two
years later. In the 5-10 day delay preceding the
“official” identification process, the witnesses were
repeatedly exposed to Davis’ image in a variety of
mediums, including Wanted Posters prominently
displayed around Savannah and at their place of
employment; a single photo display by Detective
Wilson as he canvassed the neighborhood during
the days immediately following the shooting; and
through daily displays of Davis’ image in print and
televised news media.

Under those circumstances, even welil-
intentioned witnesses free from police intimidation
could unconsciously transfer the memory of
Davis’ image.

2. Non-Blind Administration After
Repeated Exposure To Davis’ Image
Destroyed The Procedural Protections Of
A Properly Conducted Photo Array And
Resulted In Unreliable Evidence Of Guilt.

The Court has long recognized the danger of
misidentification brought about by suggestive
identification procedures. United States v. Wade,
388 U.S. 218 (1967); Gilbert v. California, 388 U.S.
263 (1967); Stovall v. Denno 388 U.S. 293 (1967).
“The vagaries of eyewitness identification are well-
known; the annals of criminal law are rife with
instances of mistaken identification.” Wade, 388
U.S. at 228. In Stovall, the Court recognized that
the “the conduct of a confrontation” may be “so
unnecessarily suggestive and conducive to
irreparable mistaken identification” as to deny
due process of law. Stovall, 388 U.S. at 301-302.

22

Over the past four decades, scientific
research has provided indisputable proof that
eyewitnesses are vulnerable to police suggestions.
See Douglas & Steblay, Memory Distortion in
Eyewitness: A Meta-Analysis of the _ Post-
Identification Feedback Effect, 20 App. Cognitive
Psychol. 991 (2006); Bradfield, A.L & Wells, G.L.,
‘Good, You Identified the Suspect’: Feedback to
Eyewitnesses Distorts Their Reports Of the
Witnessing Experience, 83 J. Appl. Psychol. 360
(1998); Wells, G., et al, Eyewitness Identification
Procedures: Recommendations for Lineups and
Photospreads, 22 Law and Hum.Behav. 603
(1998). This research has led scientist to
recommend “blind” administration of the
identification process to avoid cues that may lead

a witness to falsely identify an innocent person.
Id.

“The reason for keeping the tester blind is
to prevent the tester from unintentionally
influencing the outcome of the results.” Wells,
2006 Wis. L. Rev. at 629. Double-blind
administration works not only to prevent the
investigator from influencing which person the
eyewitness picks, but also to prevent him from
“influencing the certainty of the eyewitness” by
giving the witness confirming feedback. Id.

it is also a well-settled that a single photo
display of the primary suspect, in the absence of
some emergency, is unnecessarily suggestive.
Manson vu Brathwaite, 432 U.S. 98 (1976).

In this -case, non-blind administrators
conducted the photo arrays on_ non-blind
witnesses — everyone knew who the suspect was.
The prior extensive exposure to and disclosure of

23

the police suspect eliminated the intended
procedural benefits of a using a photo array, i.e.,
to accurately measure true recognition. The
resulting selections are unreliable because they
do not measure the witnesses’ recognition of the
shooter. Even setting aside the consistent reports
of heavy-handed police intimidation, these
identifications were extraordinarily suggestive.
From aé_ scientific perspective, the suggestive
nature of this process coupled with the poor
viewing conditions rendered the _ selections
extremely unreliable evidence of guilt.

CONCLUSION

The innocent take their wrongful
convictions as they come. The means by which
they can prove their innocence is beyond their
control. In a case of perjured testimony, a
recantation may be as good as it gets. Assessing
the reliability of recanting witnesses can be
achieved without denying an innocent person his
right to relief. Georgia’s categorical exclusion of
seven recantations - which, taken together,
present a consistent explanation for the false trial
testimony and are objectively corroborated by
science — and its refusal to hear other compelling
evidence of innocence constitute a denial of due
process and may result in the execution of an
innocent man.

24

Respectfully submitted,

DEIRDRE O’CONNOR

P.O. Box 210787

Chula Vista, CA 91921
404-392-0249

Of Counsel for Amicus Curiae
Counsel of Record for Amicus Curiae

BARRY C, SCHECK

PETER J. NUEFELD

DAVID LOFTIS

Innocence Project, Inc.

100 Fifth Avenue, 3rd Floor
New York, NY 10011
212-364-5340

August 13, 2008

APPENDIX

APPENDIX A
I

SUMMARY OF BIOGRAPHIES OF MEMBERS
FROM THE INTERNATIONAL LEGAL
COMMUNITY JOINING IN THIS AMICUS BRIEF

Today, Europe is the only region in the world
where death penalty is no longer applied. All the
Council of Europe's 47 member states have
either abolished capital punishment or
instituted a moratorium on executions. This
determination to eradicate the death penalty was
reflected in Protocol No.6 to the European
Convention on Human Rights. In 2002, another
important step was taken with the adoption of
Protocol No. 13 on the abolition of capital
punishment in all circumstances, even for acts
committed in time of war. The Council as well as
he Euroepan Union have made abolition of the
death penalty a prerequisite for membership. As
a result, no execution has taken place on the

The European Bars, law societies and lawyer’s
professional organisation aim at playing a
leading role in the battle for abolition, believing
that the death penalty has no place in
democratic societies. They strongly supported
the adoption on the 18th of December 2007, by
the General Assembly, of a resolution calling for
a global moratorium on executions.

APPENDIX A
I]

Moreover, the entire european legal community
calls on nations that do impose the death
penalty to ensure they meet internationally
agreed minimum standards: on the safeguards
for those facing execution. Further, European
Bars and lav’ Societies permanently ask
countries to progressively restrict the use of the
death penalty, such as by reducing the number
of offences for which it may be imposed, and
calls on those States that have abolished the
practice to not reintroduce it.

England and Wales: Paul Marsh, President of
the Law Society of England and Wales, joins in
this brief on behalf of the Law Society, a
professional body representing more _ than
138,000 solicitors in England and Wales. It is
concerned to see the independence of the legal
profession, the rule or law and human rights up
held throughout the world.

Italy: Aldo Bulgarelli, a private Italian attorney
and member of the ABA, Consiglio Nazionale
Forense joins in his individual capacity. Mr.
Bulgarelli launched a special three year long
celebration by the lawyers all around the world
of the anniversaries of the Universal Declaration
on Human Rights (New York, 2008) and of the
European Declaration on Human Rights and
Fundamental Freedoms (Rome, 2010), passing

APPENDIX A
Il

through Paris. This project was accepted by the
, approved by ABA, Consiglio Nazionale Forense
and the Paris Bar.

Madrid, Spain: Juan Antonio Cremades,
President of the International Commission of the
Council of the Bar of Madrid joins on behalf of
that organization.

Paris, France: Charriére Bournazel, President
of the Paris Bar joins on behalf the organization
with almost 18 000 members. (Over 40% of the
lawyers practicing in France are members of the
Paris Bar.)

The Paris Bar is very often consulted when
human rights are threatened. Whenever,
throughout the world, basic freedoms are
challenged on the principles of a fair hearing are
hampered or-even non existent. It was at the
initiative of the President of the Paris bar that
the International Convention to safeguard Due
Process was signed by more than 58 bar
associations in over 40 countries in 1987. The
Paris Bar is a founding member of the World
Coalition against death penalty.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1121%3A4. Public record. Not legal advice.