Judge Moore decided that only one of the witness recantations amounted to a “meaningful, credible recantation”. This was Kevin McQueen’s. In September and October 1989, he had been held in the same jail as Troy Davis and he told police that Davis had confessed to him that he had shot Officer MacPhail. In 1996, McQueen signed an affidavit that he had made this up, and at the June 2010 hearing in Judge Moore’s court he reiterated that there had been “no truth” to his trial testimony against Davis.
Judge Moore concluded that Kevin McQueen’s trial testimony was indeed false. However, he found that his retraction “only minimally reduces” the state’s case against Troy Davis, suggesting that the fact that “Mr McQueen’s trial testimony was so clearly fabricated” should have been apparent to everyone at the time of trial, including the jurors. As such, he said “it is hard to believe Mr McQueen’s testimony at trial was important to the conviction”. The state appeared to consider it important, however – as Judge Moore himself pointed out, “the State persists in trying to support its veracity”.
Given that Judge Moore tasked himself with making “a probabilistic determination about what reasonable, properly instructed jurors would do”, and decided that Kevin McQueen’s false testimony would have had little impact on the jury’s verdict, it is worth reflecting on the compelling evidence that US capital jurors are more ready to believe what the prosecution presents to them than would those individuals who are systematically excluded under US law from serving on capital juries.
A US capital juror is not representative of the wider community in a country in which, as recently retired US Supreme Court Justice John Paul Stevens pointed out in 2007, “millions of Americans oppose the death penalty”. At jury selection, the defence and prosecution will question prospective jurors and have the right to exclude individuals, either for a stated reason (for cause) or without giving a reason (a peremptory challenge). Those citizens who would be “irrevocably committed” to vote against the death penalty can be excluded for cause by the prosecution, under a 1968 US Supreme Court ruling. In 1985, the Supreme Court expanded the class of potential jurors who could be dismissed for cause during jury selection. Under this standard, a prospective juror can be dismissed for cause if his or her feelings about the death penalty would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath”.
As early as 1986, the US Supreme Court acknowledged evidence from numerous studies that the “death qualification” of capital jurors “produces juries somewhat more ‘conviction-prone’ than ‘non-death-qualified’ juries”. Three Justices referred to the “overwhelming evidence that death-qualified juries are substantially more likely to convict or to convict on more serious charges than juries on which unalterable opponents of capital punishment are permitted to serve”. They added that “death-qualified jurors are, for example, more likely to believe that a defendant’s failure to testify is indicative of his guilt, more hostile to the insanity defence, more mistrustful of defence attorneys, and less concerned about the danger of erroneous convictions” (emphasis added).
In 1998, a review of existing research indicated that a “favourable attitude towards the death penalty translates into a 44 per cent increase in the probability of a juror favouring conviction”. Another expert review in 1998 concluded that: “death-qualified jurors, regardless of the standard, are more conviction-prone, less concerned with due process, and they are more inclined to believe the prosecution than are excludable jurors.” Justice Stevens revisited this question in 2008, asserting that “the process of obtaining a ‘death qualified jury’ is really a procedure that has the purpose and effect of obtaining a jury that is biased in favour of conviction.”