The Jimmy Davis, Jr. Story, Death Row, Alabama (Part One)
Reasonable Doubts and Evidence of an Unfair Trial
After two brutal, failed execution attempts in four months and a third that took many hours, along with many others that have been botched in recent years, Alabama Governor Kay Ivey suspended executions in Alabama, the AP reported on November 21, 2022.[1]
The Governor’s Office said the Governor asked Alabama’s Attorney General “to withdraw motions seeking executions for two inmates and requested that the Department of Corrections undertake a full review of the state’s execution process.” However, both the Alabama Department of Corrections and the Governor have already taken the position that the appeals filed by the lawyers of the person who was fighting to defend himself against lethal injection, and not the state’s execution process, is to blame for the botched execution of Eugene Kenneth Smith.[2]
Alabama is not alone. During the November 16, 2022 lethal injection of Murray Hooper in Arizona, as “Hooper was repeatedly being jabbed with needles,” with the execution team taking “more than 25 minutes to successfully insert the IV needed to carry the lethal drugs,” Hooper asked the people executing him, “What’s taking so long?” He asked the people witnessing his execution from the viewing gallery, “Can you believe this?”[3]
On top of the ethical, medical, and legal questions about the carrying out of executions themselves, most people in American prisons don’t have the money or resources to defend themselves in court, which increases the likelihood of imprisoning and executing people who are innocent and/or victims of unfair trials and violations of due process. The poor in America are often not punished for committing the worst crimes, but for having the worst lawyers, as Steven B. Bright pointed out in his 1994 essay, “Counsel for the Poor.”[4]
Jimmy Davis. Jr is a Black man who grew up in poverty and endured extensive child abuse in Alabama, and has been on death row for almost 30 years as the result of an unfair trial. His life is one of many examples of how the system of mass incarceration and the death penalty should be called into question, not just for its horrendous living conditions and human rights violations but also for its propensity, by design, to prey on poor people and people of color who are innocent, or given disproportionate sentences, or have had their due process rights violated, and do not have the resources to defend themselves.
This series focuses on two subjects: Reasonable doubts as to Davis’ guilt, and evidence of violations of his right to a fair trial when he was convicted of murder in 1993. There are many other important aspects of Davis’ life and case, which I have written about elsewhere and will continue to write about in the future, but this series focuses specifically on the question of whether Davis is guilty “beyond the shadow of a reasonable doubt” of the crime for which he was convicted, and evidence that he was a victim of an unfair trial.
In the early 2000s, after ineffective assistance of counsel from his court appointed lawyers, Davis finally received the support of pro-bono lawyers who are experienced, care about his case, and have worked hard on it. Davis’ pro-bono lawyers, upon conducting their own post-conviction investigation and building the kind of defense Davis deserved all along, compiled The Petitioner’s Proposed Findings of Fact and Conclusions of Law (PPFFCL), a thorough review of Davis’ case, his life, and the failure (or neglect) of his court appointed attorneys to defend him in 1993.[5] Virtually none of the core facts in the PPFFCL were ever challenged.
Jimmy Davis, Jr. was charged and eventually convicted of the March 17, 1993 murder of Johnny Hazel, a Direct Oil service station attendant, in Anniston, Alabama. Davis was arrested the day after the crime “based on information from at least one unidentified informant,” the PPFFCL notes (P. 1). Alphonso and Terrence Phillips, who were cousins, along with a friend of Davis’ named Willie Smith, were also arrested. All three entered a plea-bargain against Davis at trial. They all received reduced charges and lesser sentences for doing so.
Davis was represented by court appointed lawyer Steven D. Giddens, whose “only involvement in a capital murder case had been as second chair defense counsel” in one case before Davis’, “but he was replaced as trial counsel before completing that assignment.” He “did not attend any courses related to capital murder defense… and had never been a member of a criminal law bar association,” and was not abreast of ABA and Alabama Bar Guidelines for the defense of capital murder cases then in effect (P. 1-2).
Davis’ preliminary hearing for the charge of first degree murder took place on April 9, 1993 in Calhoun County District Court before Judge Gus Colvin. Giddens, who knew Davis would be charged with capital murder, when interviewed by Davis’ pro-bono lawyers who took over the case years later in the post-conviction review process, “admit[ed] that he did not prepare for the preliminary hearing and attended it after devoting ‘a few minutes’ of discussion with Davis about the case” (P.2). He “did not attempt to prepare, nor… obtain time to better prepare. Nor did he request that the preliminary be transcribed so that the hearing transcript would be available,” and “served virtually no purpose at the preliminary hearing stage.” Giddens admitted that he was not a note taker.
June 2, 1993, a second defense counsel, Jonathan L. Adams, was added to the defense. His experience was just as limited as Giddens’, and his pretrial contributions were no more helpful.
The trial began Monday, December 6, 1993, in the Calhoun County Circuit Court. Judge Malcom B. Street, Jr., presided over it. The PPFFCL summarizes the trial as follows:
The prosecution introduced evidence from 24 witnesses and finished its case in chief in the guilt phase on Friday, December 10th. The defense called one witness… and the case went to the jury… on the issue of guilt at 12:55 p.m. … A guilty verdict on the charge of capital murder was returned at 3:40 p.m. … with Giddens and Adams calling as witnesses Davis’s mother, Lillie Bell Davis; a cousin, Andre Sigler; and Anne Storey, a psychometrist who testified that, based on testing performed…, Davis’s full scale IQ was 77, in the category of borderline mentally retarded… The jury returned a death sentence by a vote of 11 to 1 at 7:30 p.m., after first dividing 7 to 5 twenty minutes earlier, at 7:10 p.m. (P. 2-3).
It is not clear what caused the jury to swing in those 20 minutes. The jury was dismissed 30 minutes later, at 7:40 p.m. Davis’ death sentence that Friday took about six hours and 15 minutes.
In addition to not preparing for the preliminary hearing or requesting a transcript of it, Giddens and Adams did almost nothing to prepare for months before the trial, spending one hour in June and one hour in November 1993 meeting with Davis, and later testifying that “real preparation” began just two weeks before trial (P. 3). Giddens and Adams did not file any motions seeking an investigator “even though it was vital to investigate facts pertinent and critical to showing a reasonable doubt as to Davis’ guilt, and for use as mitigation at the penalty phase, if necessary, and even though Giddens was aware such funds would likely be available” (P. 6).
They also “filed no motions for mental health or social history evaluations… nor motions or subpoenas for police, school…, Department of Human Resources Records (‘never considered’) or other family public assistance records in Anniston… No teachers were interviewed.” Most importantly, in short, “No investigation into guilt-innocence issues was conducted during this seven-month period” leading up to Davis’ trial (P. 7). The Court issued an open filed order, which “was not fully complied with until… one week before trial.”
Giddens and Adams interviewed just one witness close to Davis in preparation for his trial, which was his mother, and “neither sought nor interviewed any other immediate family members, extended family, or friends of Davis,” and they “failed to interview key witnesses in the days and weeks after” the crime. It was not until “nearly nine months after the shooting and more than 7½ months after being appointed to represent Davis” that they interviewed any witnesses (P.8).
The only eyewitness at the crime scene who was not also a co-defendant was Dewey Waites. Giddens and Adams failed to interview Dewey Waites, even though he witnessed the shooting from “less than five feet” away and could not identify Davis as the shooter, or even place Davis at the crime scene (P. 11).
When Davis filed a post-conviction motion in 2001 to reveal the identity of the 1993 prosecution’s confidential informant against him, “The State conceded that the concealment of information in 1993 was improper but asserted that it did not prejudice Davis” (P. 5). The court held an ex parte hearing that excluded Davis’ Attorneys. The court refused to allow disclosure of the informant’s identity to Davis’ attorneys. This begs the question: If it did not prejudice Davis, what exactly was “improper” about it?
Giddens made “no effort” to speak with or investigate the background of Shannon Hardy Wilson, a witness who claimed she overheard Davis boast and brag of committing the crime even though she “barely knew” Davis, did know multiple other people who might have committed the crime, and was a cousin of Terrance and Alphonso Phillips (more on Hardy Wilson and the problems with her testimony later). Even if Hardy Wilson was telling the truth, if Davis’ alibi evidence had been in place, it would have suggested Davis was bragging about a crime he did not commit. Still, there are many reasons to wonder if she was telling the truth.
Davis told Giddens and Adams that a woman named Tonya Heard could back up his alibi, but Giddens and Adams did not interview her until after they received her statement from the prosecutor on November 24, 1993. Even though Davis insisted he was innocent, even though his story was consistent with Ms. Heard’s, and even though “Ms. Heard was vital to his case,” Giddens and Adams “disbelieved her alibi story” and “failed to pursue Ms. Heard’s alibi information… No notes were made of this important interview” (P. 8).
They “sought no information from Ms. Heard about other individuals to question, or to ask about others who could corroborate alibi evidence… Before trial, defense counsel never discussed with Davis their interview of Ms. Heard.” They also failed to interview other available witnesses with crucial information for Davis’ defense.
Giddens and Adams spoke with co-defendant Terrence Phillips only briefly, and only “by accident,” Giddens later said, because “[h]e… just happened to be somewhere we were,” and they made “no effort… to interview Alphonso Phillips despite his being a codefendant” (P. 9). They also made no effort to interview Willie Smith or anyone he claimed had knowledge of Davis’ whereabouts the day of the crime.
Shockingly, the same Direct Oil station was robbed the day before the March 17, 1993 robbery and shooting for which Davis was convicted. An unidentified witness told police that Alphonso Phillips had “gotten possession of the gun from the burglary” on March 16 “and used it in the robbery and shooting at Direct Oil on March 17th.”
One person involved in the March 16th burglary of Direct Oil, Troymetrus Crook, fit the description of the suspects seen fleeing the scene after the shooting the very next day on the 17th, while Davis did not fit the description. Crook also knew people who testified against Davis, which Giddens and Adams might have known if they had taken the time to investigate the backgrounds of key State witnesses. Giddens and Adams investigated nothing about the March 16th robbery, at the same location, which also allegedly involved Alphonso Phillips, just the day before the robbery and murder for which his client was on trial. The unidentified informant was simply referred to as “the black male that did not want his name known.”
Step-cousin and step-aunt of Davis, Cynthia and Betty Jacobs, place Davis at their house on the south side of town about 10 minutes away from the crime scene by car, 30 minutes on foot, “from well before 7:00 p.m. until he left… shortly before 8:00 p.m. … All this occurred during the time that the shooting occurred at Direct Oil, at approximately 7:15 p.m.” (P. 10).
Despite this testimony being both available and consistent with Davis’ story and the testimony of Tonya Heard, Giddens and Adams made no effort to interview Cynthia and Betty Jacobs. Giddens and Adams’ possible biases against their own client, along with their lack of preparation and effort, were evident throughout the process. The PPFFCL explains,
Throughout the trial, Davis’ counsel had no coherent defense. Defense counsel’s transcribed opening statement consists of fewer than two pages… Rather than emphasizing to the jury that the State would not call any unbiased witnesses who could place Davis at the crime scene – not even the man standing at the scene less than five feet from the shooter – defense counsel promoted the prosecutor’s case by telling the jury to “[p]ay particular attention to the witnesses that [the prosecution] call[s]. Look for the story as [the prosecutor] tells you in his opening when he tells you how it goes down…” Defense counsel’s failures precluded the jury from considering any version of events other than that put forth by the State (P. 11-12).
Law enforcement officials were not questioned by Giddens and Adams about “evidence that should have been collected and was not, and evidence that appears to have been collected… but never logged into evidence and made available to the defense counsel during pretrial discovery” (P. 12).
The prosecution showed a letter to the jury “allegedly found in the pocket of shorts allegedly worn and discarded by Davis” the day of the crime (P. 13.) Aside from the letter’s apparent irrelevance to the crime, and the fact that introducing it into evidence violated a ruling barring the prosecution from “introducing any evidence that in any way implied that the murder of Johnny Hazel was gang related or… in any way connected to or affiliated with any racially biased or gang-related activities,” which would likely have made the letter inadmissible if Giddens and Adams had objected, the shorts and the letter also raise important reasonable doubts about Davis’ guilt. The letter and shorts were introduced as evidence because the State claimed they belonged to Davis and that he wore the shorts on March 17.
The prosecution failed to establish the authenticity of the letter. Giddens and Adams failed to object to that, too. The “letter was found in a pair of shorts taken from a hamper in Alphonso Phillips’ home on Moore Street on March 18, 1993, the day after the homicide.” There were no unbiased witnesses who testified that Davis was wearing the shorts. More importantly, there were none who even testified that the unidentified shooter was wearing shorts. The only ones who said Davis was wearing shorts and was the shooter were the Phillips cousins, who “both received favorable treatment from the District Attorney’s office in relation to their involvement in the shooting and robbery in exchange for testifying against Davis.”
Shannon Hardy Wilson and Willie Smith, two of the State’s witnesses, “testified that Davis was not wearing the shorts” (P. 14). As the PPFFCL points out, “If you believe Davis was wearing shorts at the time of the homicide then you must conclude that Davis did not commit the crime because the eyewitness Dewey Waites testified the shooter was not wearing shorts.” Giddens and Adams “failed to make even this fundamental point” to the jury, or the point that “none of the prosecution’s witnesses gave a clothing description that might link Davis’ clothing to what the individuals seen running from Direct Oil were wearing.”
Davis is and was over six feet tall. The only eyewitness, who saw the shooting from less than five feet away, “testified, contrary to the State’s case, that one person shot Mr. Hazel, and that this individual was around 5’8” tall. Also, the other witnesses who testified they saw two young men running from Direct Oil said the youths were well under six feet tall.”
Giddens and Adams raised none of these details at trial, and “failed to have the jury take notice of Davis’ height while standing,” which “could have… pointed out to the jury that Davis did not fit the descriptions of the alleged perpetrators provided by State witnesses” (P. 14-15).
Davis was shackled during the trial, even though “no State interest was served” by shackling him and there “was no reason to believe that Davis was an escape risk. The shackles… hindered his ability to walk normally and likely created in the minds of the jury a prejudice that deterred them from determining Davis’ fate impartially” (P. 15). Again, Giddens and Adams failed to object.
Shannon Hardy Wilson, as previously noted, testified she “overheard” Davis “boasting” about committing the crime in a roomful of many overlapping voices, but that she “did not see Davis during this conversation,” and “admitted on the witness stand that she barely knew Davis.” Her testimony should have been excluded on these grounds, but Giddens and Adams did not object to it.
The failure of Giddens and Adams to object to Hardy Wilson’s testimony is among the most crucial of their many failures because it was clear under Alabama law at the time that, “Voice identifications of individuals are admissible only if the testifying witness has some basis for comparison of the voice he or she claims to have heard to a voice that he or she knows… Without such a foundation, voice identification is inadmissible” (P. 16).
If Giddens and Adams had objected and Hardy Wilson’s testimony had been excluded, “the jury would have been left with just the testimony of the Phillips cousins and Willie Smith, all of whom received sentencing deals for incriminating evidence against Davis.”
Davis’ 1993 trial was no media circus, but The New York Times had Ronald Smothers there, who covered it well, and said it “moved with frightening speed.”[6] Experts told Smothers, “Mr. Davis’s experience was unsurprising,” not because of the likelihood that he was guilty, but because of “the weakness of his defense.”
Smothers observed the same incompetence, or neglect, on the part of Giddens and Adams, noting, for example, that “no experts were put forward to address [Davis’] mental competence or childhood… Little effort was made to present Davis as a three dimensional person.” Smothers also pointed out that no motion was filed by Giddens and Adams to change the location of the trial, “even though the case had caused a furor about street crime in Anniston,” and further, “Prospective jurors were not questioned about racial attitudes even though Mr. Davis is black and the clerk he was convicted of murdering was white.”
Smothers detailed how court appointed lawyers are paid significantly less and allotted less time to prepare for each phase of the trial than private lawyers or the prosecution in “the Alabama system of indigent representation.” On top of that, “Often, particularly in small towns, a deference or coziness among judge, lawyer and prosecutor can arise, discouraging aggressive advocacy for the accused.”
Other aspects of the case that add to reasonable doubts as to Davis’ guilt were reported by Smothers as well. For example, the murder weapon was found stashed in the backyard of the house belonging to the Phillips’ grandmother, not in Davis’ possession. Smothers also describes the lack of investigation of and interviews with witnesses, and regarding the lawyers’ one significant interview before trial, the one with Davis’ mother, wrote that Mrs. Davis “said she first saw her son’s lawyer, Mr. Adams, when he knocked on the door unannounced late at night a week before trial,” and “said she was scared of him and did not trust him.”
During trial, despite the prosecutor informing the jury that the Phillips cousins entered into plea bargains, Giddens and Adams “did not emphasize [to the jury] any motive” the cousins might have for implicating Davis.
Davis “sat alone” in the courthouse. Even Davis’ mother, one of the only people the defense involved at all in their case, “could not get time off from her job as a maid at the Holiday Inn” for the guilt-innocence phase of the trial, and the “picture of Jimmy Davis was sketched by the prosecution.”
Smothers accurately predicted that
a death sentence will be just the start of a tortuous journey through the State and Federal appellate courts that could last years and cost tens of thousands of dollars in public money. Increasingly, what consumes the courts as death sentences are appealed is the extent and adequacy of the defense at the trial stage.
He was only wrong in predicting “years.” It’s been decades.
When the trial was over, Smothers watched Davis as he was being taken away. “As Calhoun County Sheriff’s deputies led the lanky defendant with protruding, frightened eyes from the courtroom, he softly muttered under his breath: ‘This ain’t right. This is wrong.’”
Davis did not fit the descriptions of the suspects seen fleeing the scene. There is no physical evidence or DNA evidence linking him to the crime. Even the circumstantial evidence is flimsy at best. The only eyewitness, who was less than five feet away from the shooting, could not identify Davis as the shooter, said the shooter was significantly shorter, and could not even place Davis at the crime scene. The murder weapon was not found in Davis’ possession. Someone else robbed the exact same business the day before who, unlike Davis, did fit the description of the suspects seen fleeing the scene the next day.
The list of violations of Davis’ due process rights in his 1993 trial goes on, as does the list of reasonable doubts of Davis’ guilt. More examples will be explored in this Hard Times Reviewer series on Davis’ life and his case.
His is the story of someone who no one stood up for. The legal system that surrounded Davis and his family when he was convicted is one that creates and exploits an environment in which those with power, who were able to help Davis, did not want to, and those without power, who wanted help Davis, were not able to.
Jonathan L. Adams has continued a successful career as a lawyer in the decades since. Steven D. Giddens has continued practicing law, and aptly rose to Talladega District Attorney.
Davis is in the last phase of the appeals process at the State level in the 11th Circuit Court of Appeals in Alabama, awaiting a decision as to whether he should be put to death or have his death sentence changed to a life sentence.[7] He has remained on death row in Holman Prison in Atmore, Alabama since 1993, longer than I’ve been alive, more than half of his life, has always maintained his innocence, and still does.
[1] Jay Reeves, “Alabama Pausing Executions After 3rd Failed Lethal Injection,” Associated Press, 11/21/2022
[2] Kim Chandler and Jay Reeves, “Alabama Fails to Complete Lethal Injection for 3rd Time,” Associated Press, 11/18/2022
[3] Austin Sarat, “A New Low for Lethal Injections’ Cruelty and Incompetence: Three Executions in Two Days – and All of Them Botched,” Austin Sarat, 11/21/2022
[4] Steven B. Bright, “Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer,” The Yale Law Journal, Vol. 103: 1835, 1994.
[5] Jimmy Davis, Jr. V. State of Alabama, Petitioner’s Proposed Findings of Fact and Conclusions of Law, Case No. CC-93-534.60
[6] Ronald Smothers, “Court-Appointed Defense Offers the Poor a Lawyer, But the Cost May Be High,” The New York Times, 2/14/1994
[7] https://www.ca11.uscourts.gov/oral-argument-recordings?page=30