Davis v. State

¶1dissenting.

¶2As the majority notes, Georgia law is largely silent regarding the standards that should govern extraordinary motions for new trial. Thus, by necessity, “the procedural requirements for such motions are the product of case law.”3 This Court has attempted to set standards that promote respect for the judicial process and confidence in the outcomes of that process. Thus, we have required that defendants exercise diligence in discovering and bringing their claims, and we have set the threshold very high for showing that new evidence should take precedence over the evidence presented at trial.4 However, I believe that this case illustrates that this Court’s approach in extraordinary motions for new trials based on new evidence is overly rigid and fails to allow an adequate inquiry into the *449fundamental question, which is whether or not an innocent person might have been convicted or even, as in this case, might be put to death.

¶3We have noted that recantations by trial witnesses are inherently suspect, because there is almost always more reason to credit trial testimony over later recantations. However, it is unwise and unnecessary to make a categorical rule that recantations may never be considered in support of an extraordinary motion for new trial. The majority cites case law stating that recantations may be considered only if the recanting witness’s trial testimony is shown to be the “purest fabrication.”5 To the extent that this phrase cautions that trial testimony should not be lightly disregarded, it has obvious merit. However, it should not be corrupted into a categorical rule that new evidence in the form of recanted testimony can never be considered, no matter how trustworthy it might appear. If recantation testimony, either alone or supported by other evidence, shows convincingly that prior trial testimony was false, it simply defies all logic and morality to hold that it must be disregarded categorically.

¶4The majority opinion also notes concerns about confessions by persons other than the defendant. In particular, the majority states that a witness might falsely confess and then flee prosecution. However, this concern could be addressed by requiring the witness to appear in the trial court before his or her alleged confession may be considered. Thus, the trial court would have benefit of the same testimony and cross-examination that a jury would have if a new trial were ordered.

¶5The majority opinion wisely states the following:

[W]e have endeavored to look beyond bare legal principles that might otherwise be controlling to the core question of whether a jury presented with Davis’s allegedly-new testimony would probably find him not guilty or give him a sentence other than death.

¶6Maj. Op., p. 447.1 would go further. Because this Court is entrusted with establishing the procedures and standards governing extraordinary motions for new trial, I would hold that recantations and confessions to third parties are not categorically excluded.6 Instead, *450they should be assessed by the trial court within its sound discretion.7 This Court was right to hold that such testimony is inherently suspect, and the Court was right to hold that a trial court should consider only such evidence as would be admissible if a new trial were ordered. However, this Court is free to adopt rules and standards that best promote the ends of justice, and this case illustrates with alarming clarity why this Court’s rules should allow trial courts to consider all forms of evidence that would be admissible if a new trial were ordered and to exercise sound discretion in weighing that evidence.

¶7While the majority wisely decides to look beyond bare legal principles and seeks to consider the strength of Davis’s new evidence, I believe that it has weighed that evidence too lightly. In this case, nearly every witness who identified Davis as the shooter at trial has now disclaimed his or her ability to do so reliably. Three persons have stated that Sylvester Coles confessed to being the shooter. Two witnesses have stated that Sylvester Coles, contrary to his trial testimony, possessed a handgun immediately after the murder. Another witness has provided a description of the crimes that might indicate that Sylvester Coles was the shooter. Perhaps these witnesses’ testimony would prove incredible if a hearing were held. Perhaps the majority is correct that the alleged eyewitness’s testimony will actually show Davis’s guilt rather than his innocence. But the collective effect of all of Davis’s new testimony, if it were to be found credible by the trial court in a hearing,8 would show the probability that a new jury would find reasonable doubt of Davis’s guilt or at least sufficient residual doubt to decline to impose the death penalty. Accordingly, I would order the trial court to conduct a hearing, to weigh the credibility of Davis’s new evidence, and to exercise its discretion in determining if the new evidence would create the probability of a different outcome if a new trial were held.