Cablegate: Communication From Un Special Rapporteur On Extrajudicial,

R 160944Z SEP 08
FM USMISSION GENEVA
TO SECSTATE WASHDC 7170
INFO USMISSION USUN NEW YORK

UNCLAS GENEVA 000773

STATE FOR IO/RHS, DRL/MLA, L/HRR

E.O. 12958: N/A
TAGS: PHUM UNHRC
SUBJECT: COMMUNICATION FROM UN SPECIAL RAPPORTEUR ON EXTRAJUDICIAL,
SUMMARY OR ARBITRARY EXECUTIONS

1. (U) Mission has received a communication from the UN Special
Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip
Alston, dated September 12, 2008. This communication has been sent
via e-mail to IO/RHS.

2. (U) Begin text of letter:

Excellency,

I have the honour to address you in my capacity as Special
Rapporteur on extrajudicial, summary or arbitrary executions
pursuant to General Assembly resolution 60/251 and to Human Rights
Council resolution 8/3.

In this connection, I would like to draw the attention of your
Government to information I have received regarding Troy Anthony
Davis who has been sentenced to death and is reportedly scheduled to
be executed on 23 September 2008. Mr Davis was sentenced to death in
1991 for the August 1989 killing of Mark Allen McPhail, a security
officer (and off-duty police officer) in Savannah, Georgia. It is my
understanding that a clemency hearing before the state Board of
Pardons and Paroles is scheduled to take place today, 12 September
2008.

In recent years, Mr. Davis' defense has made numerous unsuccessful
attempts to obtain a hearing to present post-conviction evidence,
including affidavits from the seven out of nine non-police witnesses
who have recanted or changed their testimony subsequent to the
conviction. In 2007, a Georgia trial-level judge dismissed Mr.
Davis' appeal for a new trial without conducting a hearing. On 17
March 2008, the Georgia Supreme Court ruled on the appeal against
this decision. In a 4-3 ruling, it decided that the lower court had
not abused its discretion.

The Chief Justice of the Georgia Supreme Court authored the
dissenting opinion. She noted that "nearly every witness who
identified Davis as the shooter at trial has now disclaimed his or
her ability to do so reliably". Most importantly from the
perspective of international law, the Chief Justice argued 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 fundamental question,
which is whether or not an innocent person might have been convicted
or even, as in this case, might be put to death."

Article 14(5) of the International Covenant on Civil and Political
Rights (ICCPR), to which the United States of America is a party,
provides "Everyone convicted of a crime shall have the right to his
conviction and sentence being reviewed by a higher tribunal
according to law." On the one hand, there can be no doubt that -
from a formal point of view - this right is protected to an
exemplary degree in the United States, as illustrated by the
innumerable instances of appeal at the State and Federal level the
case of Mr. Davis has gone through in the seventeen years since his
conviction. On the other hand, however, Article 14(5) ICCPR requires
that a review by a higher court must be a genuine review of the
issues in the case, an "overly rigid [approach which] fails to allow
an adequate inquiry into the fundamental question" (in the words of
the Georgia Chief Justice) cannot live up to that standard. In the
context of Mr. Davis' case, the refusal by the courts to grant a
rehearing when presented with significant new evidence which casts
doubt on the initial conviction appears to amount to a denial of the
right to a genuine review as required.

Such a genuine review would be particularly appropriate in this case
in the light of information regarding the alleged failure of trial
counsel to conduct an adequate investigation of the state's
evidence, to which I drew your Government's attention in a previous
communication regarding this case dated 16 July 2007. I also noted
that the Georgia Resource Center, a post-conviction defender
organization (PCDO) which represented Mr. Davis, reportedly had its
budget reduced by two-thirds and the number of lawyers on its staff
reduced from eight to two at the time it was engaged in Mr. Davis'
defense. A lawyer working on Troy Davis' case stated in an affidavit
that "I desperately tried to represent Mr. Davis during this period,
but the lack of adequate resources and the numerous intervening
crises made that impossible, we were simply trying to avert total
disaster rather than provide any kind of active or effective
representation".

International law requires Governments to provide a defendant
accused of a serious crime with legal counsel without payment by him
if he does not have sufficient means to pay for it (Article 14(3)(d)
ICCPR). Where such public defense is provided to an indigent
defendant, it must live up to the requirement that the accused shall
have "adequate time and facilities for the preparation of his
defense" (Article 14(3)(b) ICCPR). As stated by the UN Human Rights
Committee, "[w]hen an accused is represented by assigned counsel,
the authorities [...] have a special duty to take measures to ensure
that the accused is effectively represented (Kelly v. Jamaica
(253/1987), 8 April 1991, Report of the HRC, (A/46/40), 1991, at
248, para. 5.10)." In the present case there are grounds for concern
that poor legal representation afforded to Mr. Davis since 1989 has
denied him both the right to a fair trial and the right to
effectively appeal against conviction and the death sentence.
In light of these serious and pressing concerns, based upon human
rights norms recognized by the international community, I would
respectfully request Your Excellency's Government to take all
necessary steps to avoid executions that would be inconsistent with
accepted standards of international human rights law. I urge your
Excellency's Government to put Mr. Davis execution on hold in light
of the above facts with a view to commuting his death sentence.
In closing I wish to reiterate two points. The first is that,
despite receiving a significant number of complaints in relation to
the carrying out of the death sentence in the United States, I have
only rarely acted on these complaints. In this instance I firmly
believe that the case merits this urgent appeal and warrants
immediate action on the part of the U.S. Government. The second is
that I take no position either for or against the death penalty but
act only when it seems clear that the risk of injustice is such that
internationally accepted standards will be violated in the absence
of urgent intervention by the Government.

Since I am expected to report on this case to the UN Human Rights
Council, I would be grateful for your cooperation and your
observations. In addition to an expeditious first reply, I would
greatly appreciate being informed about further developments in this
case. I undertake to ensure that your Government's response is
accurately reflected in the report I will submit to the UN Human
Rights Council for its consideration.

Please accept, Excellency, the assurances of my highest
consideration.

Philip Alston Special Rapporteur on extrajudicial, summary or
arbitrary executions

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