No. 08-66

IN THE

TROY ANTHONY DAVIS,

STATE OF GEORGIA

Petitioner,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

MOTION FOR LEAVE TO FILE BRIEFAMICUS CURIAE AND BRIEF AMICUS CURIAE

OF THE INNOCENCE PROJECTIN SUPPORT OF PETITIONER

BARRY C. SCHECK

PETER J. NUEFELD

DAVID LOFTIS

INNOCENCE PROJECT

100 Fifth Avenue3rd FloorNew York, NY 10011(212) 364-5340

Attorneys for Amicus Curiae

DEIRDRE O’CONNOR

Counsel of RecordP.O. Box 210787Chula Vista, CA 91921(404), 392-0249

Blank Page

MOTION FOR LEAVE TO FILE AMICUS

Pursuant to Rule 37.3(b) of the Rules of theSupreme Court of the United States, DeirdreO’ConnorI (Of Counsel) and Barry C. Scheck,Peter J. Neufeld, and David Loftis of the InnocenceProject, Inc., ("the Project") hereby request leave tofile the accompanying amicus curiae brief. Thisbrief is submitted in support of the petition forwrit of certiorari to the Supreme Court of Georgia.Petitioner Troy Davis has consented to the filing ofthis brief. Respondent State of Georgia haswithheld consent.

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

The Project is greatly concerned that theGeorgia Supreme Court has set an impossiblyhigh standard preventing Mr. Davis and otherinnocent Georgians from having evidence ofinnocence heard. Accordingly, the Projectrespectfully requests leave to file theaccompanying amicus curiae brief.

Respectfully submitted,

Deirdre O’ConnorOf Counsel of Record forInnocence Project, Inc.

l Deirdre O’Connor’s application for admission to the United StatesSupreme Court bar has been processed. She is scheduled for admissionon August 18, 2008.

ii

TABLE OF CONTENTS

BRIEF AMICUS CURIAE OF THE INNOCENCEPROJECT IN SUPPORT OF PETITIONER

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

I. A Deeply Divided Court Created A Rule OfLaw Authorizing Categorical Denial Of DueProcess For Innocent Georgians ConvictedOn The Word Of Perjurers.

II. The Impossible High Purest FabricationStandard Would Have Failed to Protect AtLeast Three Known Innocent Death RowInmates Who Were Convicted Based OnPerjured Testimony.

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III. The Majority’s Blind Adherence To ThisNew Standard And Its Failure To ApplyToday’s Science To The Undisputed Facts,Which Demonstrate The Unreliability Of TheNow-Disavowed Identification Evidence, IsFurther Proof Of This Standard’s Failure. _ 12

A. The Court Ignored Recent ScientificStudies Establishing That The UndisputedViewing Conditions And Circumstances OfThis Crime Precluded A Genuine Basis ForSubsequent Recognition. 12

ooo111

i. The Extraordinarily Short Duration OfThe Assault Of Young And Shooting OfOfficer MacPhail Did Not Provide SufficientTime To Encode Crucial Detail. 14

2. The Presence And Discharge Of A GunTook Focus Away From The Face Of TheShooter. 15

3. It Is Scientifically Impossible For FerrellTo Subsequently Recognize A Stranger SeenIn A Dimly Lit Parking Lot From 160 FeetAway. 16

B. The Court Did Not Consider TheScientifically Supported Probability ThatWitnesses Selected The Police SuspectDuring A Suggestive Identification Process,Which Created An Ideal Situation ForMemory Source Error And FalseIdentifications. 19

1. The Saturation Of Davis’ Image ExposedWitnesses To A Contaminant ThatIncreased The Probability Of MemorySource Error And Rendered The Witnesses’Later Selection Of Davis Unreliable. 20

2. Non-Blind Administration After RepeatedExposure To Davis’ Image Destroyed TheProcedural Protections Of A ProperlyConducted Photo Array And Resulted InUnreliable Evidence Of Guilt.

CONCLUSION

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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 (11t~ Cir.1985) 11

Gilbert v. California, 388 U.S. 263 (1967) 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) __ 5

United States v. Wade, 388 U.S. 218 (1967)___ 20

State Cases

Drake v. State, 248 Ga. 891,894 (1982) __ 10, :ll

Exparte Adams, 768 S.W.2d 281 (1989)

State ex rel. Amrine v. Roper, 102 S.W.3d 54.1 (Mo.2003) 9

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

V

Statutes

O.C.G.A § 5-5-23 2, 4

Other Authorities

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

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

Bradfield, A.L & Wells, G.L., ¢Good, You Identifiedthe Suspect’." Feedback to Eyewitnesses DistortsTheir Reports Of the Witnessing Experience, 83J. Appl. Psychol. 360 (1998) 21

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

Daniel Medwed, Anatomy Of A WrongfulConviction: Theoretical Implications And PracticalSolutions, 51 Viii. L. Rev. 337 (2006) 7

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

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

vi

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

Dysart, J., Lindsay, R.C.L., Hammond, R.,Dupuis, P, Mugshot Exposure Prior to LineupIdentification: Interference, Transference, andCommitment Effects, 86 Journal of AppliedPsychology 1280 (2001) 19

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

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

Jonathan Liebman and Joel Cohen, Perjury andCivil 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 aDeterminant of Accuracy in EyewitnessIdentifications, 63 J. of Applied Pyschol. 345(1978) 13

Loftus, E. F. & Greene, E., Warning: Even memo1~yfor faces may be contagious, 4 Law And Hum.Behav. 323 (1980).. 19

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

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

Mark Curriden, The Lies Have It: Judges MaintainThat Perjury Is on the Rise, but the Court SystemMay Not Have Enough Resources to Stem theT~de, A.B.A.J., May 1995, at 68 5

Memon, A., Hope, L., & Bull, R:, Exposureduration: Effects on eyewitness accuracy andconfidence, 94 British J. of Psychol. 339 (2003).

13

Richard H. Underwood, Perjury! The Charges andthe Defenses, 36 Duq. L. Rev. 715 (1998) 6

Ross, D. F., Ceci, S. J., Dunning. D., & Toglia, M.P., Unconscious transference and mistakenidentity: Toward a memory blending approach,(1994) in Ross, D. F., Read, J.D., & Toglia, M. P.(Eds.) Adult eyewitness memory: Current trendsand developments (Cambridge University Press1994). 19

Sharon Cobb, Gary Dotson As Victim: The LegalResponse To Recanting Testimony, 35 EmoryL.J. 969 (1986)

Shawn Armbrust, Reevaluating RecantingWitnesses: Why The Red-Headed Stepchild OfNew Evidence Deserves Another Look, 28 B.C.Third World L.J. 75 (2008)

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oooVIII

Steblay, N. M. A Meta-Analytic Review of theWeapon Focus Effect, 16 Law And Hum. Behav.413, 420-21 (1992). 15

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

Wells, G. L. & Olson, E. (2003). Eyewitnessidentification. Annual Review of Psychologs~, 54:,277-295. 13

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

INTEREST OF AMICUS CURIAE1

The Innocence Project, Inc. (~’the Project") isa nonprofit legal clinic and resource centercreated by Barry C. Scheck and Peter J. Neufeld.Founded at the Benjamin N. Cardozo School ofLaw in 1992, the Project provides pro bono legalservices to indigent prisoners for whom post-conviction DNA testing of evidence can yieldconclusive proof of innocence. The Projectpioneered the post-conviction DNA litigationmodel that has to date exonerated 218 innocentpersons, and served as counsel or providedcritical assistance in a majority of these cases.

The advent of forensic DNA testing and theuse of such testing to review criminal convictionshave provided scientific proof that our systemconvicts innocent people, and that wrongfulconvictions are not isolated or rare events.Although there are untold numbers of cases inwhich people have been wrongfully convicted butthere is no DNA evidence that can scientificallyprove their innocence, DNA testing has opened awindow into wrongful convictions so that we maystudy the causes of this injustice and recommend

1 Counsel of record for all parties received notice of theAmicus curiae’s intention to file this brief at least 10 daysprior to the due date. Petitioner has consented to theNetwork’s filing of this brief and Respondent has withheldconsent. No counsel for a party authored this brief in wholeor in part, and no counsel or party made a monetarycontribution intended to fund the preparation or submissionof this brief. No person other than amicus curiae, itsmembers, or its counsel made a monetary contribution toits preparation or submission.

practices to minimize the chance of itsoccurrence. 2

SUMMARY OF ARGUMENTInnocence does not fade with the passage of

time. Perjured testimony and other forms ofunreliable evidence, though, often cannotwithstand the test of time or the evolution ofscience. At the heart of the Troy Davis case arequestions of innocence and fabricated evidence.Seven recanting witnesses - many of whomprovided highly implausible testimony at trial.-and the nine additional witnesses implicatingRedd Coles, undermine our confidence in theverdict and compel a meaningful reexamination ofall the evidence.

The Georgia Legislature created a state rightto a new trial for the wrongfully convicted who canestablish that new evidence of innocence ’~wouldprobably produce a different verdict." O.C.G.A §5-5-23; ~mberlake v. State, 246 Ga. 488; 271S.E.2d 792 (1980). By its terms it provided for ameaningful review of Mr. Davis case, and indeed anew trial. He received neither.

In Davis, the Georgia Supreme Courtchanged the statute’s materiality standard torequire proof of the purest fabrication in witnessrecantation cases. As interpreted, this is anunattainable measure that necessarily thwartsthe statutorily conferred right to obtain relief froma wrongful conviction, thus denying due process

~ Appendix contains summary biographies of othersignatories.

to anyone whose conviction was secured viaperjured testimony.

As nearly half of the Georgia Supreme Courtjustices recognized, the purest fabricationstandard is so ~rigid" that the ~fundamentalquestion [of] whether or not an innocent personmight have been convicted or even, as in thiscase, might be put to death" went unanswered.App. A. at 17a.

This decision creates a rule of lawauthorizing categorical denial of due process forinnocence cases in Georgia. It gives the trial courtcomplete freedom to dismiss evidence ofinnocence without evaluating its reliability,subverting the well-considered, truth-seekingfunction of post-conviction proceedings proscribedby the legislature. This new judicially-minted,purest fabrication standard will result in theimprudent disregard of reliable evidence ofinnocence.

Critically, the Davis majority, constricted byits own newly-crafted standard, ignoredscientifically supported concerns that theevidence used to convict Mr. Davis was unreliable.The now-disavowed trial testimony includedreports of perception and memory beyond humancapacity. Even the two non-recanting witnesses,Redd Coles (who has now been identified by ninepeople as the shooter) and Stephen Sanders,presented inherently incredible and scientificallyimplausible testimony.

Evidence of innocence should not gounheard especially in a case, like Mr. Davis’,where the conviction was based on scientificallyunreliable evidence and the legislature has

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provided a remedy to hear such claims. Deeplyrooted in our notion of justice is the recognition ofthe court’s duty to protect the innocent. A panoplyof constitutional safeguards guarantees theaccused a fair trial so that society can trustfindings of guilt. The hallmark of a fair trial is itsability to successfully fulfill its truth-seekingfunction. In any quest for truth, the reliability ofthe evidence should take center stage. When newinformation surfaces after trial that causesreasonable people to lose confidence in the juE~’sguilty verdict - whether it is due to the ineffectiveperformance of defense counsel, the failure of tlheprosecutor to disclose material evidence, or tlherealization that unreliable and false testimonyresulted in the conviction of an innocent person -our commitment to justice and truth compelscorrective action and a process through whichthat can occur. The Georgia legislature hasprovided an avenue for redress of such claims,but its Supreme Court arbitrarily and capriciouslyforeclosed claims stemming from perjury, andsubsequent recantation.

The time has come for this Co-urt toarticulate the minimum requirements for aconstitutionally adequate procedure so thatclaims of wrongful convictions based on fabricatedtestimony can be properly evaluated and innocentpeople protected.

ARGUMENT

I, A Deeply Divided Court Created A Rule OfLaw Authorizing Categorical Denial Of Due

Process For Innocent Georgians Convicted OnThe Word Of Perjurers.

The Georgia legislature created a right to anew trial for any wrongfully convicted person whocan 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 didnot limit or classify the new evidence, but ratherbroadly asserted that a petitioner could present~any material evidence" to meet this standard.This statute unambiguously creates a libertyinterest by conferring the right to a new trial oncethe ~substantive predicates’ have been met."a

Board of Pardons v. Allen, 482 U.S. 369 (1987).This right exists independent of the evidentiarycause of the wrongful conviction and recantationevidence that is ~material" fits comfortably withinthe statute’s ambit.

It is a well-established due process principlethat once a state has created a statutory schemeaffecting a litigant’s rights and interests, it mustprovide ~a meaningful opportunity to be heard byremoving obstacles to their full participation injudicial proceedings" Tennessee v. Lane, 541 U.S.509, 523 (2004) (citing Boddie v. Connecticut, 401U.S. 371, 379 (1971); M.L.B.v.S.L.J., 519 U.S.102 (1996)). Here, the court’s arbitraryconstruction of the statute, under its rigid purestfabrication standard, imposes unconstitutionalobstacles to full participation for those seekingrelief from wrongful convictions based on

Amid incorporate by reference the petitioner’s argumentson this point.

demonstrably false testimony. This arbitraryconstruction will undoubtedly have the innocentlanguish in prison, and unduly risks w~rongfulexecution - concerns, which the post-convictionstatutory scheme undoubtedly sought to address.

It is axiomatic that some witnesses commitperjury. And, despite the system’s truth-seekingfunction, some perjurers get away with it. MarkCurriden, The Lies Have It: Judges Maintain TIqatPerjury Is on the Rise, but the Court System MayNot Have Enough Resources to Stem the Tid!e,A.B.A.J., May 1995, at 68; see also JonathanLiebman and Joel Cohen, Perjury and CivilLitigation, 20 Litig. 43 (1994); Lisa Harris, PerjuryDefeats Justice, 42 Wayne L. Rev. 1755 (19.96)("Perjury has thus far evaded all solutions, ispervasive in the courtroom, and is on theincrease."). Id. at 1755. Indeed, "[m]any lawyersanswer that [perjury] is the natural result, andthe tolerable cost, of an adversary system ofjustice." Richard H. Underwood, Perjury! Ti~eCharges and the Defenses, 36 Duq. L. Rev. 715(1998). In The Supreme Court on Trial: How theAmerican Justice system Sacrifices Innoce:r~tDefendants, George C. Thomas III concludes that"we have a problem with [ ] perjury" and othercategories of false evidence. Id. at 39. "It is thetoo frequent failure of the adversary system itselfthat produces wrongful convictions." Id..

For perjurers who are later moved to speakthe truth, their recantations are received with adisproportionate skepticism that can perpetuate

¯ ¯ ¯ 4eternal injustice. Shawn Armbrust, ReevaluatingRecanting Witnesses: Why The Red-HeadedStepchild Of New Evidence Deserves Another Look,28 B.C. Third World L.J. 75 (2008); DanielMedwed, Anatomy Of A Wrongful Conviction:Theoretical Implications And Practical Solutions, 51Viii. L. Rev. 337 (2006); Alexandra Natapoff, TheFaces Of Wrongful Conviction Symposium: BeyondUnreliable: How Snitches Contribute To WrongfulConvictions, 37 Golden Gate U.L. Rev. 107 (2006);Brian Murray & Joseph C., He Lies, You Die:Criminal Trials, Truth, Perjury, and Fairness, 27N.E.J. on Crim. & Civ. Con. 1 (2001); SharonCobb, Gary Dotson As Victim: The Legal ResponseTo Recanting Testimony, 35 Emory L.J. 969(1986); Janice J. Repka, Rethinking The StandardFor New Trial Motions Based Upon Recantations AsNewly Discovered Evidence, 134 U. Pa. L. Rev.1433 (1986); Daniel Wolf, I Cannot Tell a Lie: TheStandard for New Trial in False Testimony Cases,83 Mich. L. Rev. 1925 (1985).

The Georgia Legislature developed a soundanalytical framework for undertaking this problem

4 Amici acknowledge that not all recanting witnesses have

committed perjury. Every recanter necessarily asserts thattheir trial testimony was inaccurate. Some were simplymistaken or improperly influenced to believe the falsity;their testimony was inaccurate, but honest. Othersknowingly told an untruth. It is the latter ilk that is mostprevalent in Mr. Davis case and the most troubling forcourts. For simplicity sake, this brief uses perjurerinterchangeably with recanting witness. Amici recognizethat witnesses who lie out of fear prompted by policeintimidation or out of concern that the true perpetrator willcause them harm are deserving of greater empathy thanconnoted by the label of perjurer.

within its statutory scheme. If the recantationswere material, i.e., probably produce a differentoutcome, a new trial is required. The GeorgiaSupreme Court, however, arbitrarily placedown effectively insurmountable hurdled onto suchclaims, requiring proof of the ~purest fabrication.Even worse, here, it decided that the failure tomeet such a standard could be determinedwithout a hearing though there were sevenrecantations.

Indeed, the Davis court held that each ofthe seven recantation ~affidavits lack[ed] the typeof materiality required to support anextraordinary motion for new trial, as they do notshow the witnesses’ trial testimony to have beenthe ~purest fabrication,p’ App. A. at 7a; see also8a-10a. It is hard to imagine any recantation - orcollection of recantations - that could satisfy tl~:isstandard. As noted by the dissent, the undeniableeffect of the holding is to categorically excluderecantations. App. A. at 18a.

By definition, a recantation always involw~sa prior inconsistent version, e.g., "I lied when Isaid X, Y is really the truth." It can never, on itsown, conclusively prove the falsity of the firstversion. The most to which a recantation canaspire is to ultimately, at trial, be the mo~repersuasive of two competing versions of fact.Requiring proof of the purest fabrication, as athreshold to justify a new trial necessarilytranslates into a categorical exclusion.

Indeed, the court’s analysis in this very ca~,~edemonstrates the impossibility of meeting itsstandard. The court parsed each statementindividually trying to determine whether it alone

met the pure fabrication standard. It, however,refused to engage in reviewing the collectiveimpact of the seven recantations taken together.Moreover, by deeming the evidence mererecantation, it did not properly weigh the scientifictestimony. The statute, which requires anassessmentof any material evidence, wouldrequire thecourt to weigh the impact of thestatementscollectively and in conjunction withthe supporting scientific evidence.

The Georgia court denied even a hearing onthe issue -- though, nonetheless, claiming not toforeclose the possibility of hearings to subsequentlitigants. App. A. at 3a. But it is unclear whatpurpose a hearing would serve if the post-conviction court were not then authorized to makea finding that a recantation was sufficientlyreliable to warrant a new trial. No matter howgreat the indicia of reliability, the recantation willalways compete with the earlier version. A judgemay find the recantation more credible, but couldnot find, as a matter of law, that the originalversion was the purest fabrication.

No longer tethered to any statutorymoorings, post-conviction courts now haveunfettered discretion to deny claims where thereis objectively material evidence mandating a newtrial. Indeed, in contradiction to legislative intent,it would now be an abuse of discretion in Georgiato grant a new trial if there is ~material evidence"but no proof of the ~purest fabrication." A trialcourt in DeKalb County, then, could grant apetitioner a new trial based on an ineffectivenessclaim, but a trial court in Chatham County wouldhave to deny such a right to a petitioner who

10

provides equally compelling evidence of innocencethrough recantation. Hence, Davis - a death rowinmate with seven recanting witnesses and nineothers implicating another - under the purefabrication standard was arbitrarily denied hisstatutorily conferred right to a new trial. Indeed,he never received a hearing on the merits.

II. The Impossible High Purest FabricationStandard Would Have Failed to Protect ,AtLeast Three Known Innocent Death RowInmates Who Were Convicted Based OnPerjured Testimony.

This standard’s failure is already proven bycases of known innocents. At least three deathpenalty cases depended entirely on recantationsto prove their innocence. State ex ret. Amrine v.Roper, 102 S.W.3d 541 (Mo. 2003); Ex pal,teAdams, 768 S.W.2d 281 (1989); Drake v. State,248 Ga. 891, 894 (1982). Each man ult~matelyfound relief; two found relief in court, tlheGeorgian from the Board of Pardons and Paroles.Id. All three men would have been executedunder the purest fabrication standard.

Joseph Amrine was convicted andsentenced to death on the word of three prisoninmates; all of whom ultimately recanted. If Daviswere applied to Amrine, the court would have beenforced to deny relief because the threerecantations ~do not show the witnesses’ trialtestimony to have been the ~purest fabrication."App. A. at 7a. Fortunately Amrine was wrongfullyconvicted in Missouri, not Georgia.

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

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have been executed. His conviction was based onseveral purported eyewitnesses. One, DavidHarris, later confessed and recanted his trialtestimony against Adams. The court grantedrelief even though two other purportedeyewitnesses did not recant. Adams would nothave fared so well in Georgia. The belief thatHarris ~could subvert the ends of justice by falselyadmitting the crime to others and then absentinghimself’ would have rendered Harris’ confessionmeaningless. App. A. at l la. Fortunately forAdams his ordeal took place in Dallas, Texas andnot Savannah, Georgia.

Henry Drake was one of six known innocentGeorgia death row inmates to ultimately securehis freedom. Drake was convicted based entirelyon the uncharged perjury of the actual killer,William Campbell. The only way Drake couldprove his innocence, beyond the alibi witnesses hepresented at trial, was through Campbell’srecantation. The Georgia Supreme Court deniedhim relief and held that the ~effect of Campbell’snew testimony was clearly to impeach thecredibility of his earlier sworn statements." Drakev. State, 248 Ga. 891,894 (1982).

Ultimately, Drake was pardoned.S Had hebeen 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 III), 762 F.2d 1449 (11t~ Cir. 1985). At retrial, he wasconvicted and sentenced to life. The Board freed Drake inNovember 1987, finding that Campbell lied. Hodes, WilliamW., Executing The Wrong Person, 29 Loy. L.A.L. Rev. 1547;Georgia’s Death Row; Waiting to die. Drake’s reaction: ~If Ididn’t have all those appeals, I’d be dead. I always thought

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standard, it is unlikely that he would have beengranted a hearing, which produced evidence thatcaptured the attention of others and ultimatelyled to his freedom.

III. The Majority’s Blind Adherence To ThisNew Standard And Its Failure To Apply Today’sScience To The Undisputed Facts, WhichDemonstrate The Unreliability Of The Now-Disavowed Identification Evidence, Is FurtherProof Of This Standard’s Failure.

When today’s accepted scientific truths areapplied to ti~e undisputed circumstancessurrounding witnesses’ initial observations, tlhereliability of their subsequent selection of Davis isgreatly undermined. As a matter of science, key~estimator variables" and contaminating pre-identification exposure produced highly unreliableclaims of recognition. Current science thenconstitutes intrinsic evidence supporting therecantations. The application of the pure.stfabrication standard, however, caused the court toignore these studies, and fail to conduct hearinigswhere these scientific studies could help establishthe validity of the recantations. The court’s blindadherence to the purest fabrication standardarbitrarily prevented it from considering objectiveproof supporting the reliability of the recantations.

A. The Court Ignored Recent ScientificStudies Establishing That The UndisputedViewing Conditions And Circumstances Of This

I’d be electrocuted. I worried they’d mix up the papers, m~dpoof you’re gone." Id.

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Crime Precluded A Genuine Basis ForSubsequent Recognition.

The uncontroverted evidence at trialdemonstrated that the sudden unexpected assaultand murder6 in a poorly lit parking lot late atnight7 was witnessed by people under the extremestress of being in the line of fire.8 Scientificresearch demonstrates that heightened stress atthe moment of perception reduces identificationaccuracy. Deffenbacher, K.A., et al., A Meta-Analytic Review of the Effects of High Stress onEyewitness Memory, 28 Law and Human Behavior687 (2004). Science also confirms that whichshould appeal to common sense: event-relatedfactors (e.g., duration, awareness of crime,lighting, distance/vantage point, the presence of aweapon, high levels of stress, intoxication, andother physical or mental limitations) affect theability of a witness to accurately encodeidentifying information. Wells, G. L. & Olson, E.(2003). Eyewitness identification. Annual Reviewof Psycholog3r, 54, 277-295.

6 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 Leo Bishop, Burger King’s manager, there wasenough light so that "you’re not going to walk into anythingor trip over anything." But it was too dark for Bishop torecognize the familiar officer as he laid in the parking lotuntil Bishop moved close enough (10-15 feet away) to seeOfficer MacPhail’s uniform. The shooting occurred in "theworst area in the parking lot," as the street light on thecorner was blocked by a large tree located directlyunderneath. According to Young, "I couldn’t see, you, it wasjust dark, right the particular spot we were standing."8 Moreover, many were also intoxicated and/or injured.

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1. The Extraordinarily Short Duration OfThe Assault Of Young And Shooting OfOfficer MacPhail Did Not ProvideSufficient Time To Encode Crucial Detail.Common sense dictates, and science

confirms, that the shorter the exposure the moredifficult to encode enough information for laterrecognition. Memon, A., Hope, L., & Bull, R.,Exposure duration: Effects on eyewitness accuracyand conj~dence, 94 British J. of Psychol. 3:39(2003). The degree of a witness’ attention asevents unfold is as critical to the witness’ abil:ityto take in meaningful information as the durationof observation and proximity to the criminal. SeeLeippe, M.L. et al, Crime Seriousness as aDeterminant of Accuracy in EyewitnessIdenti~cations, 63 J. of Applied Pyschol. 345(1978). If a witness is unaware that a crime isoccurring, interactions or mere proximity willoften not leave a lasting impression. A recentCornell study illustrates the concept of inattentionblindness. Researchers conducted a series ofexperiments in which pedestrians who were givingdirections to someone posing as a lost tourist didnot notice when, midway through the exchange,the sham tourist was replaced by another personaltogether. Blind to Change, Even as It Stares Usin the Face, New York Times, April 1, 2008; seealso Loftus, E., Eyewitness Testimony, HarvardUniversity Press, 25-27 (1996). Durations.. then,should be assessed in conjunction with the timeperiod that the witness is paying attention to theperpetrator.

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

15

eyewitnesses. Officer MacPhail was shot withinseconds of the assault on Young. The shooter fledimmediately. According to Daniel Kinsman, oneof Sanders’ military friends in the van, theincident was "over as soon as it began." App. A.at 13a.

2. The Presence And Discharge Of A GunTook Focus Away From The Face Of TheShooter.Forensic psychologists have documented

that, during a crime, the witness’ attention isdrawn to any visible weapon and away from theculprit’s facial and physical characteristics.Experiments involving videotaped robberies withsome culprits brandishing a gun and othersconcealing it repeatedly demonstrated thateyewitness identifications were less accurate whenthe gun was brandished. This is known asweapon focus effect. In a recent meta-analysis,Dr. Nancy Steblay examined 19 studies of weaponfocus effect and found that ~[t]he presence of aweapon does make a significant difference ineyewitness performance . . . particularly in crimesof short duration in which a threatening weaponis visible." Steblay, N. M. A Meta-Analytic Reviewof the Weapon Focus Effect, 16 Law And Hum.Behav. 413, 420-21 (1992).

In this case, even if witnesses had notsought cover, they would have instinctivelyfocused on the gun, not the shooter’s face. Giventhe extremely short duration of this volatile crimein which witnesses were immediately made awareof the gun, the opportunity for meaningfulobservations were significantly diminished. The

16

well-documented weapon focus effect supports theprobability that some influence other than tn~erecognition accounted for the witnesses’subsequent selection.

In all probability, most witnesses did notmaintain a vantage point once the gun wasdisplayed. Common sense dictates that peoplewill remove themselves from the line of fire.9 Thebrief duration, the weapon, and the instinctiveinclination toward self-preservation, rendersMurray and Williams’ purported ability to"recognize" the shooter incredibl1°

3. It Is Scientifically Impossible ForFerrell To Subsequently Recognize A

9 Indeed, Redd’s threat of producing a gun caused Murray

and two unidentified companions to run for cover. Thesound of gunfire caused Antoine Williams to seek shelterunder the dash of his car. Securing their safety ended theirperiod of observation.10 Though Stephen Sanders claimed he maintained visual

contact after shots were fired, he candidly admitted thatnight that his observations were insufficient to enableidentification. Sanders was seated in a van with seven U.S.Air Force buddies ordering food at the drive thru windowafter a night of partying. As Young was trying to getassistance from Sanders and his friends in the vaJ1, shotssuddenly rang out. Bishop told his employees and the vax.L’soccupants to duck for cover.

Even assuming Sanders did not heed Bishop’s advice, hisinability to describe the shooter beyond "a black man intwenties" and his unequivocal assertion that he "wouldn’trecognize them again" rendered his in-court identificationtwo years later extremely implausible. Indeed, his selectionis the most troubling of all in a field where the competitionfor that distinction is at an all-time high. Something otherthan true recognition was at work.

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Stranger Seen In A Dimly Lit Parking LotFrom 160 Feet Away.

A famous woman is depictedhere as she would appear froma distance of 172 feet. The lackof sufficient visual detailsmakes identifying her achallenge beyond our humancapacity. As Dr. GeoffreyLoftus states:

When you see anything at a distance thehuman visual system starts to lose smalldetails. The greater the distance the coarserthe detail you lose .... At 10 feet you mightnot be able to see individual eyelashes on aperson’s face. At 200 feet you would noteven be able to see a person’s eyes. At 500feet you could see the person’s head butjust as one big blur. There is equivalencebetween size and blurriness. By makingsomething smaller you lose the fine detail.Loftus, G.R. & Harley, E.M., Wl~y Is It Easierto 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 43feet; however, at distance of 100 feet or more, thefine detail necessary for true recognition is lost sothat even an easily recognizable face like JuliaRoberts’ is but a blur. If it were possible torecognize the blurred woman, then her namewould have occurred to the viewer immediately.

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172 feet 100 feet 43 feet 5 feet

Yet, Dorothy Ferrell testified at Davis’ trialthat she recognized a complete stranger whom sheviewed briefly from a distance of at least 160 feet11

as he quickly moved about in a poorly lit parkinglot with a group of other black men. The onlyplausible explanation is that she did not recogn~eDavis from the lot that night, but, rather,accepted Detective Wilson’s suggestion when hedisplayed a single photo of Davis to her a few daysafter the shooting.

11 Ferrell claimed she witnessed the event from the edge of

the hotel parking lot, near a palm tree, where she remainedfor the duration. The Thunderbird Inn is located on thesoutheast corner of the intersection of Oglethorpe Avenueand Fahm Street. The Burger King parking lot is located onthe northeast comer of the intersection of OglethorpeAvenue and Fahm Street. There are two small palm trees atthe hotel parking edge; one is 160 feet away from thelocation of shooting, the other 200.

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B. The Court Did Not Consider TheScientifically Supported Probability ThatWitnesses Selected The Police Suspect DuringA Suggestive Identification Process, WhichCreated An Ideal Situation For Memory SourceError And False Identifications.

A true identification occurs when thewitness recognizes the person as the actualperpetrator. When the police expose witnesses tothe suspect’s image prior to the ~official"identification procedure and make it abundantlyclear that he is the police suspect then thewitnesses’ subsequent selection of that man islikely the product of the unnecessary suggestivityand/or memory source error. In other words, thewitnesses did not recognize the suspect; instead,they simply followed the lead of the police whowere determined to build a case against TroyDavis. Depending on the witnesses’ motives, theymay have genuinely believed that the policesuspect was the man that they observed (memorysource error) or they may have acquiesced out ofself-interest and implicated the suspect toappease the police (false identification).Thecourt’s categorical disqualification of therecantations caused it to fail to considerthisundisputed and objective corroboration of thoserecantations.

2O

1. The Saturation Of Davis’ ImageExposed Witnesses To A ContaminantThat Increased The Probability OfMemory Source Error And Rendered T]~eWitnesses’ Later Selection Of Da~,isUnreliable.Memory source error occurs when a witness

incorrectly attributes a familiar face to the wrongsource because he unconsciously transfersmemory of the familiar face from one context toanother. A witness who has seen the suspectbefore may, through transference, mistake him forthe perpetrator in a later photo array. Decades ofscientific studies reveal that prior exposure to asuspect’s image will make a subsequent selectionof the suspect more likely. Dysart, J., Lindsay,R.C.L., Hammond, R., Dupuis, P, MugshotExposure Prior to Lineup Identification:Interference, Transference, and CommitmentEffects, 86 Journal of Applied Psychology 1280(2001); Loftus, E. F. & Greene, E., Warning: Ew,~nmemory for faces may be contagious, 4 Law AndHum. Behav. 323 (1980). Ross, D. F., Ceci, S. J.,Dunning. D., & Toglia, M. P., Unconscioustransference and mistaken identity: Toward amemory blending approach, (1994) in Ross, D. F.,Read, J.D., & Toglia, M. P. (Eds.) Adult eyewitnessmemory: Current trends and developments(Cambridge University Press 1994).

Prompted by Redd Coles’ self-servingaccusation against Davis, the police acquiredDavis’ photo on the evening of August 19, 1989.Yet, none of the witnesses were shown a photoarray until August 24, 1989; some were not askeduntil August 28t~ and Sanders was not shown the

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array until just before he testified at trial twoyears later. In the 5-10 day delay preceding the~official" identification process, the witnesses wererepeatedly exposed to Davis’ image in a variety ofmediums, including Wanted Posters prominentlydisplayed around Savannah and at their place ofemployment; a single photo display by DetectiveWilson as he canvassed the neighborhood duringthe days immediately following the shooting; andthrough daily displays of Davis’ image in print andtelevised news media.

Under those circumstances, even well-intentioned witnesses free from police intimidationcould unconsciously transfer the memory ofDavis’ image.

2. Non-Blind Administration AfterRepeated Exposure To Davis’ ImageDestroyed The Procedural Protections OfA Properly Conducted Photo Array AndResulted In Unreliable Evidence Of Guilt.The Court has long recognized the danger of

misidentification brought about by suggestiveidentification 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 withinstances of mistaken identification." Wade, 388U.S. at 228. In Stovalt, the Court recognized thatthe ~the conduct of a confrontation" may be ~sounnecessarily suggestive and conducive toirreparable mistaken identification" as to denydue process of law. Stovatl, 388 U.S. at 301-302.

Over the past four decades, scientificresearch has provided indisputable proof thateyewitnesses are vulnerable to police suggestions.See Douglas & Steblay, Memory Distortion inEyewitness: A Meta-Analysis of the Post-Identification Feedback Effect, 20 App. CognitivePsychol. 991 {2006); Bradfield, A.L & Wells, G.L.,’Good, You Identified the Suspect’: Feedback toEyewitnesses Distorts Their Reports Of theWitnessing Experience, 83 J. Appl. Psychol. 360(1998); Wells, G., et al, Eyewitness Ident~/icationProcedures: Recommendations for Lineups andPhotospreads, 22 Law and Hum.Behav. 603(1998). This research has led scientist torecommend "blind" administration of theidentification process to avoid cues that may leada witness to falsely identify an innocent person.Id.

"The reason for keeping the tester blind isto prevent the tester from unintentionallyinfluencing the outcome of the results." Wells,2006 Wis. L. Rev. at 629. Double-blindadministration works not only to prevent theinvestigator from influencing which person theeyewitness picks, but also to prevent him from"influencing the certainty of the eyewitness" bygiving the witness confirming feedback. Id.

It is also a well-settled that a single photodisplay of the primary suspect, in the absence ofsome emergency, is unnecessarily suggestive.Manson v. Brathwaite, 432 U.S. 98 {1976).

In this case, non-blind administratorsconducted the photo arrays on non-blindwitnesses - everyone knew who the suspect was.The prior extensive exposure to and disclosure of

the police suspect eliminated the intendedprocedural benefits of a using a photo array, i.e.,to accurately measure true recognition. Theresulting selections are unreliable because theydo not measure the witnesses’ recognition of theshooter. Even setting aside the consistent reportsof heavy-handed police intimidation, theseidentifications were extraordinarily suggestive.From a scientific perspective, the suggestivenature of this process coupled with the poorviewing conditions rendered the selectionsextremely unreliable evidence of guilt.

CONCLUSIONThe innocent take their wrongful

convictions as they come. The means by whichthey can prove their innocence is beyond theircontrol. In a case of perjured testimony, arecantation may be as good as it gets. Assessingthe reliability of recanting witnesses can beachieved without denying an innocent person hisright to relief. Georgia’s categorical exclusion ofseven recantations - which, taken together,present a consistent explanation for the false trialtestimony and are objectively corroborated byscience - and its refusal to hear other compellingevidence of innocence constitute a denial of dueprocess and may result in the execution of aninnocent man.

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Respectfully submitted,

DEIRDRE O’CONNORP.O. Box 210787Chula Vista, CA 91921404-392-0249Of Counsel for Amicus CuriaeCounsel of Record for Amicus Curiae

BARRY C, SCHECKPETER J. NUEFELDDAVID LOFTISInnocence Project, Inc.100 Fifth Avenue, 3rd FloorNew York, NY 10011212-364-5340

August 13, 2008