Troy Davis is being Scheduled for Execution
What Can You Do To Prevent an Innocent Man From Dying ?
Demand the State of Georgia Extend to Troy the chance to have his REAL Case Heard. He has thus far been unable to have anyone listen to his case; and hear those who have recanted their false evidence against him.
Before This Man is Murdered Wrongly – We Must Stand Up and SHOUT NO
Troy Davis Is Innocent and doesn’t deserve to die in the electric chair for a murder He Did Not Commit. Please put your hand up for Troy Davis and Demand Justice Today – Do Not Let an Innocent Man DIE in Georgia,
Lets Take a look at the Troy Davis Case from the Internet Evidence :
|Troy Anthony Davis|
|Born||October 9, 1968 (1968-10-09)|
|Conviction(s)||Murder with aggravating factor|
|Status||Incarcerated on death row at Georgia Diagnostic and Classification State Prison|
The Troy Davis case concerns the case of Troy Anthony Davis, a former sports coach from the U.S. state of Georgia, who was convicted and sentenced to death in 1991 for the August 19, 1989 murder of off-duty Savannah police officer Mark MacPhail solely on the basis of eyewitness testimonies.
No physical evidence linked him to the murder, and the weapon used in the crime was never found. Throughout the trial and subsequent appeals, Davis steadfastly maintained his innocence, claiming he was wrongfully convicted of the crime as a result of false identification.
After the trial and first set of appeals, seven of the nine prosecution eyewitnesses who had linked Davis to the killing recanted or contradicted their original trial testimony, claiming police coercion and questionable interrogation tactics. The witness who first implicated Davis and has remained consistent, Sylvester “Redd” Coles, was initially a suspect in the crime. Coles was seen acting suspiciously the night of MacPhail’s murder and has been heard boasting that he killed an off-duty police officer.
There is only one witness who did not recant his testimony and is not himself a suspect in the murder, but he made a dubious in-court identification of Davis two years after the crime. Whereas on the night of the shooting the witness stated that he could not recognize the shooter, but two years later the witness made an in court identification of Davis.
Davis has repeatedly asked the courts to examine the new exculpatory evidence, but so far has not been successful in persuading a majority of judges to grant him a new trial or conduct a hearing in which the recanting eyewitnesses could be cross-examined to determine the credibility of Davis’ innocence claims.
In October 2008, Davis filed a second Habeas petition in the 11th Circuit Court of Appeals on the grounds that it was the first time Davis was presenting a free-standing innocence claim and that no court has yet held an evidentiary hearing on the exculpatory evidence of recanted testimony.
On 16 April 2009 the three-judge panel denied Davis’ petition on procedural grounds by a 2-1 majority.
Amnesty International has strongly condemned the refusal of U.S. courts to examine the innocence evidence, and has organized rallies and letter-writing campaigns to persuade the Georgia and Federal courts to grant Davis a new trial or an evidentiary hearing.
Many prominent politicians and leaders, including President Jimmy Carter, Pope Benedict XVI, Nobel laureate Archbishop Desmond Tutu, Presidential candidate Bob Barr, and former FBI Director and judge William S. Sessions have expressed their shock at Georgia authorities’ plan to execute Davis without a proper, judicial examination of the innocence evidence, and have called upon the courts to grant Davis a new trial or evidentiary hearing.
- 1 The shooting of Officer MacPhail
- 2 The trial and conviction
- 3 First set of appeals decided without knowledge of exculpatory evidence
- 4 Recantation of witnesses and new exculpatory evidence
- 4.1 11th Circuit’s denial of Habeas petition on the basis of procedural bars
- 4.2 Former FBI Director’s call for a new trial
- 4.3 Board of Pardons’ stay of execution
- 4.4 The Georgia Supreme Court’s 4-3 decision denying Davis’ appeal
- 4.5 Certiorari Petition to US Supreme Court
- 4.6 The Innocence Project’s arguments for a new trial
- 4.7 Supreme Court’s denial of Certiorari
- 5 Pleas for New Trial or Clemency by International Leaders, Congressmen, NGOs
- 6 Davis’ second habeas petition: Executing an innocent person constitutionally intolerable
- 7 11th Circuit’s 2-1 decision denying second Habeas petition on basis of procedural bars
- 8 Family statements
- 9 References
- 10 External links
The shooting of Officer MacPhail
On August 19, 1989, Mark MacPhail, an off-duty policeman, was working as a security guard at a Burger King restaurant in Savannah, Georgia. The incident started when Sylvester “Redd” Coles began harassing a homeless man, Larry Young, for a beer while Troy Davis and others watched quietly from a distance. Coles verbally harassed and chased the homeless man to a nearby parking lot where MacPhail was working. Coles threatened the retreating homeless man by exclaiming: “You don’t know me. Don’t walk away from me. I’ll shoot you.” Davis and others silently followed the scuffle.
The homeless man yelled for help and MacPhail responded and was shot dead with a .38 caliber weapon. The parking lot was dark and the scene was chaotic. After the dust settled, the police took the statements of several onlookers but had no suspects. Redd Coles and Troy Davis were both African-American males of similar age, height and weight.
The day after the shooting, a spent shell from a .38 caliber revolver was discovered near the scene of the murder. The shell was similar to shell casings recovered near a shooting that occurred earlier that evening at a pool party in Cloverdale — not far from where MacPhail was killed. In that shooting, a man named Michael Cooper was shot. The two hosts of the pool party confirm that Coles was at the party. Davis was also at the party, but he was not with Coles.
The pool party shooting occurred when four boys — two of whom were Coles’ neighbors — were shot at as they drove away from the party. One of the car’s passengers was shot in the face. Later that evening, as Coles’ sister testified at trial, Coles got into a heated argument with Joseph Blige, one of the teenagers riding in the car. Although excluded from trial as hearsay, Coles’ sister’s police statements show that Blige exclaimed to Coles: “I know y’all tried to kill me.”
None of the boys riding in the car knew Davis or identified him as the pool party shooter, and the police search of Davis’ house less than 24 hours after the shooting turned up no gun.
Coles initially lied about carrying the .38 caliber revolver, but later admitted to carrying it with him on the night of the murder. He claimed that it was lost when the police attempted to recover the gun for testing.
After the police swarmed his neighborhood looking for suspects, Redd Coles and his attorney approached the police to exonerate Coles and implicate Troy Davis. Before the police discovered Coles’ lies, however, the police had issued an arrest warrant for Davis without corroborating any part of Coles’ story. After the warrant was issued, Davis’ picture was plastered on wanted posters and in the local Savannah media. Davis who, unlike Coles, had fled to Atlanta surrendered to authorities there on August 23. He admitted to being present at the Burger King parking lot, but denied shooting MacPhail. Davis stated that Coles had shot MacPhail.
The police never searched Coles’ house for the murder weapon, never included Coles’ picture in witness photo spreads, and paraded Coles in front of four State witnesses as a mere bystander in a crime scene “reenactment.”
The trial and conviction
Davis asserted his innocence and a jury trial was held. Davis testified at trial and denied that he was involved in the shooting of Cooper or MacPhail. A ballistics expert testified at the trial that the .38 calibre bullet that killed McPhail could possibly have been fired from the same gun that wounded Michael Cooper in the pool party, although he admitted that he had “some doubt” about this.
On August 28, 1991, based solely on the testimony of eyewitnesses who had linked Davis to the shooting of MacPhail, the jury found Davis guilty on one count of murder and other offenses. In the sentencing phase of the trial, Davis’ family members and close friends were not allowed to testify, preventing the jurors from hearing sympathetic facts, leaving them to rely only on the prosecutor’s characterizations of Davis and his life. On August 30, 1991, the jury sentenced Troy Davis to death.
First set of appeals decided without knowledge of exculpatory evidence
Georgia Supreme Court’s First Denial of Appeal
The first set of appeals focused almost exclusively on jury selection issues. The jury in the trial was composed of seven blacks and five whites. The racial bias claim raised by Davis’ lawyers was dismissed because the county in which the trial took place was about two-thirds white (and the jury pool was about 57% white) while the seated jury was 58% black. His conviction and death sentence were affirmed by the Supreme Court of Georgia in 1993.
Lack of resources causes denial of state habeas petitions
Davis, like many indigent death row inmates, was represented during his state habeas proceedings by the Georgia Resource Center. Just as the Resource Center’s lawyers were preparing Davis’ appeal, Congress eliminated $20 million in funding to post-conviction defender organizations like the Georgia center, which lost 70% of its budget. Six of the center’s eight lawyers left, as well as three of its four investigators, and Davis’ case became one of about 80 that Beth Wells, then executive director, had to handle.
“The work conducted on Mr. Davis’ case was akin to triage,” Wells wrote in an affidavit, “where we were simply trying to avert total disaster rather than provide any kind of active or effective representation… There were numerous witnesses that we knew should have been interviewed, but lacked the resources to do so.”
As a direct result, the vast majority of the recantations and other new evidence of Davis’ innocence went undiscovered and unheard as Davis’ appeals proceeded through state courts. In addition, Davis encountered restrictions on the scope of his ability to attack the conviction, due to limitations introduced by the 1996 Antiterrorism and Effective Death Penalty Act. Consequently, on September 9, 1997, the state court denied Davis’ state habeas corpus relief. Following briefing and oral argument, the Georgia Supreme Court affirmed the denial of state habeas corpus relief on November 13, 2000. 
Recantation of witnesses and new exculpatory evidence
In 2001, Davis submitted twenty-one exculpatory affidavits to a federal court in Georgia. These affidavits contained recantations from all but two of the prosecution eyewitnesses, the testimony of another previously undiscovered eyewitness and others with information bearing on the crime—all strong evidence suggesting Davis was not the gunman and is, in fact, innocent of the crimes for which he was sentenced to death. All the witnesses stated in their affidavits that their earlier statements implicating him had been coerced by strongarm police tactics.
One of the key prosecution witnesses, Dorothy Ferrel, recanted her testimony, stating in her affidavit that she was on parole when she testified, and was afraid that she’d be sent back to prison if she didn’t agree to finger Davis. In her affidavit, she wrote:
|“||I told the detective that Troy Davis was the shooter, even though the truth was that I didn’t know who shot the officer.||”|
Another witness, Darrell Collins, a teenager at the time of the murder, said in a sworn affidavit that the police had scared him into falsely testifying by threatening to charge him as an accessory to the crime:
|“||[The police] were telling me that I was an accessory to murder and that I would … go to jail for a long time and I would be lucky if I ever got out, especially because a police officer got killed … I was only 16 and was so scared of going to jail.||”|
At least three witnesses who testified against Davis have since said that Sylvester “Redd” Coles admitted that he was the one who had killed the officer. Additionally, five new witnesses implicated Coles, not Davis, in the murder of MacPhail.
The only eyewitness, aside from Coles, who did not recant his testimony is Steve Sanders, whose in-court identification occured two years after the crime. Sanders’ police statement on the night of the shooting stated that he would not “recognize the shooter.” This directly contradicts his in-court testimony two years later when he identified Davis for the first time at trial. As of July 2008, Davis’ lawyers have been unable to interview Sanders to investigate the glaring contradiction between his police statements – which stated it was impossible for him to identify the shooter – and his in-court testimony two years later which identified Davis as the shooter.
In response to Davis’ petition, prosecutors Spencer Lawton and David Lock argued that under Georgia law it was too late to present the recantations as evidence in an extraordinary motion for new trial, and, in addition, claimed that the “submitted affidavits are insufficient to raise doubts as to the constitutionality of the result at trial.”
11th Circuit’s denial of Habeas petition on the basis of procedural bars
Citing procedural bars, the federal district court declined to consider any evidence of Davis’ actual innocence and rejected the habeas petition.
Davis appealed to the 11th Circuit Court which heard oral argument in the case on September 7, 2005. Davis argued that since seven of the nine eyewitnesses recanted their testimony and voluntarily filed sworn affidavits stating they lied in the original trial, he is entitled to a retrial based on his actual innocence claim. Davis’ lead lawyer, Kathleen Behan, also argued that there were multiple constitutional violations in the original trial, including failure to disclose Giglio materials (referring to State promises made to Dorothy Ferrell, a key witness for the State, in exchange for her testimony) and a Brady violation (referring to the State’s failure to give Davis’ lawyers exculpatory evidence).
On September 26, 2006, the 11th Circuit affirmed the denial of federal habeas corpus relief, claiming that all his innocence claims are “procedurally defaulted.” Judges Dubina, Barkett and Marcus ruled that Davis had not borne his burden to establish a viable claim that his trial was constitutionally unfair. According to legal experts, a major obstacle to granting Davis a new trial was the Antiterrorism and Effective Death Penalty Act of 1996 whose major provisions reduced new trials for convicted criminals and sped up their sentences by restricting a federal court’s ability to judge whether a state court had correctly interpreted the U.S. Constitution. Legal authorities have criticized the restricting effect of the 1996 Act on the ability of wronfully convicted persons to prove their innocence.
Former FBI Director’s call for a new trial
In July 2007, William S. Sessions, former FBI Director and federal judge, published an opinion piece in the Atlanta Journal Constitution calling on authorities to halt the execution process until Davis is given a new trial, or alternatively, grant him clemency. Sessions wrote:
|“||There is no more serious violent crime than the murder of an off-duty police officer who was putting his life on the line to protect innocent bystanders. That being said, we must be convinced that the right person has been convicted. Serious questions have been raised about Davis’ guilt…It would be intolerable to execute an innocent man.||”|
Judge Sessions identified himself as a supporter of the death penalty. But, he argued, the judicial system is fallible, and the procedural rules can be too restrictive and can prevent the courts from dispensing justice. They can stop the courts from hearing even claims of innocence, such as in Davis’ case. He condemned the kinds of procedural barriers that prevented the courts from addressing the merits of Davis’ case, and recommended that they be eliminated. He added that it is intolerable that as a result of these procedural obstacles, no court has examined the claims Davis’ current legal team has raised.
Board of Pardons’ stay of execution
Despite Judge Sessions’ call for a new trial and similar pleas by Amnesty International, Davis’ execution was scheduled for July 17, 2007. On July 16, however, the Georgia State Board of Pardons and Paroles granted a ninety-day stay of execution. Before the Board of Pardons made a final decision, though, the Supreme Court of Georgia agreed to hear Davis’ discretionary appeal from his Extraordinary Motion for a New Trial.
The Georgia Supreme Court’s 4-3 decision denying Davis’ appeal
On August 3, 2007, the Georgia Supreme Court granted Davis’ application for discretionary appeal from the denial of his Extraordinary Motion for a New Trial. It was the first time Davis’ case reached the Georgia Supreme Court since the recantation of witnesses and the discovery of new exculpatory evidence. On March 17, 2008, the Georgia Supreme Court denied the appeal by a slim 4-3 majority. The four-justice majority wrote that “These affidavits lack the type of materiality required to support an extraordinary motion for new trial, as they do not show the witnesses’ trial testimony to have been the “purest fabrication.””
However, a three-justice minority led by Chief Justice Leah Ward Sears strongly dissented, and concluded that the new evidence pointing to “actual innocence” justifies a new hearing. Chief Justice Ward wrote:
|“||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…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.||”|
Accordingly, the three-justice minority held that the new, exculpatory evidence is sufficient to justify, at the very least, an order to the trial court to conduct a hearing and weigh the credibility of Davis’ new evidence. This procedure would have given the trial court the opportunity to exercise its discretion in determining if the new evidence creates the probability of a different outcome if a new trial were held.
Certiorari Petition to US Supreme Court
On July 14, 2008, Davis’ lawyers filed a petition for a writ of certiorari in the US Supreme Court, appealing from the Georgia Supreme Court’s 4-3 decision, asking the Court to overrule the Georgia Supreme Court’s majority decision and determine that the Eighth Amendment creates a substantive right of the innocent not to be executed. If such a right exists, the lawyers argued, then the Georgia Supreme Court’s failure to grant an evidentiary hearing to review the cumulative substance and credibility of Davis’ new innocence evidence violates the Constitution – both the Eighth Amendment and the Due Process Clause.
The Innocence Project’s arguments for a new trial
The Innocence Project, a non-profit organization dedicated to exonerating wrongfully convicted people, filed an amicus curiae brief, strongly condemning the Georgia Supreme Court’s majority opinion and supporting Davis’ request for a new trial. The Cardozo Law School-affiliated non-profit argued that constitutional principles and fundamental standards of criminal law require the courts to grant Davis a new trial or, at the very least, an evidentiary hearing to weigh the new exculpatory evidence.
The Innocence Project made the following arguments:
- A sharply-divided Georgia Supreme Court created a rule of law authorizing categorical denial of due process for innocent Georgians convicted on the word of perjurers.
- The impossible high “Purest Fabrication” standard set by the four-justice majority would have failed to protect at least three known innocent death row inmates who were convicted based on perjured testimony.
- The majority’s blind adherence to this new standard and its failure to apply today’s science to the undisputed facts is further proof of the standard’s failure.
- The four-justice majority ignored recent scientific studies establishing that the undisputed viewing conditions and circumstances of this crime precluded a genuine basis for subsequent recognition.
- The majority did not consider the scientifically supported probability that witnesses selected the police suspect during a suggestive identification process, which created an ideal situation for memory source error and false identifications.
Supreme Court’s denial of Certiorari
The US Supreme Court was scheduled to discuss in an internal conference on September 29 whether to take up the case of Troy Davis. Nevertheless, Georgia’s state attorneys scheduled an execution date for September 23, 2008 at 7 pm, intending to carry out the execution before the United States Supreme Court had the opportunity to take up Davis’ case the following week. Ignoring calls from organizations, leaders and journalists to halt the execution until the Supreme Court made a decision, Chatham County District Attorney Spencer Lawton ordered that Davis be taken to the death chamber and executed, despite his pending appeal. Only a last-minute emergency stay, issued by the Supreme Court less than two hours before he was scheduled to be put to death, prevented the execution. Georgia Attorney General Thurbert Baker and Deputy Attorney General Susan Boleyn filed a brief with the Supreme Court asking the Supreme Court not to take the case for review, and objecting to the grant of Certiorari.
On October 14, 2008, the Supreme Court issued a one-line decision declining to hear Davis’s petition, meaning the requisite four votes needed to grant certiorari did not exist. Emboldened by the Supreme Court’s rejection of Davis’s petition, District Attorney Lawton set a new execution date for October 27, 2008.
Pleas for New Trial or Clemency by International Leaders, Congressmen, NGOs
European Parliament’s resolution
In a resolution adopted on July 10, 2008, the European Parliament appealed to the State of Georgia and the relevant U.S. courts to grant Davis a retrial. Referencing the relevant UN General Assembly resolutions, the resolution stated:
|“||The European Parliament…1. Calls upon those countries where the death penalty is imposed to take the necessary steps towards its abolition;
2. Asks that Troy Davis’ death sentence be commuted and, in view of the abundant evidence which might lead to such commutation, for the relevant courts to grant him a retrial;
3. Appeals urgently to the Georgia State Board of Pardons and Paroles to commute Troy Davis’ death sentence;
4. Calls on the Presidency of the Council and the Delegation of the Commission to the United States to raise the issue as a matter of urgency with the US authorities;
5. Instructs its President to forward this resolution to the Council, the Commission, the Government of the United States, the Georgia State Board of Pardons and Paroles, and the Attorney General of Georgia.
Calls for new trial by Archbishop Tutu, Pope Benedict, U.S. Congressmen
Amnesty International published a report about Davis’ case characterizing it as a miscarriage of justice and a “catastrophic flaw in the U.S. death penalty machine.”  Amnesty initiated a letter-writing campaign and organized rallies worldwide. More than 4,000 people sent letters to the Board of Pardons and Paroles asking to grant clemency to Troy Davis. Nobel Peace Prize winner Archbishop Desmond Tutu urged the Board to demonstrate their commitment to fairness and justice, stating “It is shocking that in over 12 years of appeals, no court has agreed to hear evidence of police coercion, or consider the recanted testimony.”
The Vatican‘s nuncio to the U.S., Monsignor Martin Krebs, sent a letter on behalf of Pope Benedict XVI to Governor of Georgia Sonny Perdue urging him to spare Davis’ life. Perdue claimed he passed all the letters to the Board, since Georgia is one of three U.S. states where the governor has no power to grant clemency, and the power to pardon rests solely with the State Board of Pardons and Paroles (though the governor retains political influence by virtue of his authority to appoint the Board members).
Several Congressmen also spoke out on behalf of Davis, requesting the courts grant Davis a new trial. On July 16, U.S. Congressman John Lewis spoke to the Georgia State Board of Pardons and Paroles, suggesting that Coles — one of the two eyewitnesses who had not recanted — was the real killer. In addition, U.S Representatives Jesse Jackson, Jr. and Sheila Jackson Lee, actor Mike Farrell, former Texas District Attorney Sam D. Millsap, Jr., and the organization Murder Victims Families for Reconciliation led a worldwide call for clemency to Davis.
Harry Belafonte implored the Board to use their power to grant clemency to ensure that “Troy has one final chance of a fair hearing in federal court, one that will properly review all evidence, both old and new, and properly question the reliability of the witness testimony used against him at trial.”. Another supporter of clemency was Sister Helen Prejean, author of Dead Man Walking, who issued a similarly-worded plea to halt the execution and grant Davis a new trial.
In addition, former Republican Congressman and presidential candidate Bob Barr wrote the Georgia Board saying that he is “a strong believer in the death penalty as an appropriate and just punishment,” but that the proper level of fairness and accuracy required for the ultimate punishment has not been met in Davis’ case. Subsequently, Reverend Al Sharpton also called for clemency after he met and prayed with Davis on death row.
On September 22, 2008, attorney Carol Gray, who assisted the Troy Davis defense team, issued a press release calling on authorities to halt the execution until information can be obtained from a clerk at the motel across from the murder scene. Gray said that the clerk was heard screaming after shots were fired, but the clerk has so far not been identified or interviewed by either side. According to Gray, such identification could be made through existing tax records.
Board of Pardons and Paroles’ denial of clemency bid
Despite the outpouring of support and the international attention to the case, on September 12, 2008, the State Board of Pardons and Paroles rejected Davis’ clemency request. Board members Milton Nix, Garland Hunt, Gale Buckner, Robert Keller and Garfield Hammonds did not provide any reason for their decision.
Pleas by Amnesty, President Carter and National Lawyers Guild
In response to the State Board’s unexplained rejection of the clemency request, Amnesty International condemned “in the strongest possible terms” the decision to deny clemency, and called it “a baffling and unbelievable perversion of justice.” Larry Cox, executive director for Amnesty International USA, added: “The U.S. Supreme Court must intervene immediately and unequivocally to prevent this perversion of justice.”
President Jimmy Carter released a public letter urging the State Board to reverse its decision. In his letter, Carter stated:
|“||This case illustrates the deep flaws in the application of the death penalty in this country. Executing Troy Davis without a real examination of potentially exonerating evidence risks taking the life of an innocent man and would be a grave miscarriage of justice.||”|
Davis’ second habeas petition: Executing an innocent person constitutionally intolerable
On October 23, 2008, Davis’ lawyers launched a second habeas petition, based on the new exculpatory affidavits that hitherto had not been examined in a court of law. In their court filing, attorneys argued that the new exculpatory evidence proves Davis is innocent, and therefore his execution would violate the Eighth and Fourteenth Amendments of the US Constitution. Davis’ lawyers added -
|“||Mr. Davis’ execution in light of new evidence concerning his innocence is constitutionally intolerable. Society recoils at state execution of an innocent person.||”|
Davis’ lawyers requested an emergency stay of the pending execution, and on October 24, the 11th Circuit Court of Appeals issued a stay of execution to consider the newly-filed federal habeas petition. “Upon our thorough review of the record, we conclude that Davis has met the burden for a stay of execution,” the court said in an order issued by Judges.
On November 19, 2008, the 11th Circuit ordered the parties to submit briefs. Chatham County prosecutors filed objections to Davis’ federal habeas petition, asking the 11th Circuit to deny Davis’ petition, and prevent Davis from having an evidentiary hearing to weigh the new, potentially exonerating evidence.
On December 9, in an overfilled courtroom in Atlanta, the three-judge panel who will determine Davis’ fate (Judges Joel Fredrick Dubina, Rosemary Barkett, and Stanley Marcus) heard oral arguments in the Habeas petition. Davis’ lawyers – Arnold & Porter lawyer Jason Ewart and attorney Tom Dunn – argued that it is constitutionally forbidden to authorize the execution of Davis without a proper judicial examination of the innocence evidence. Attorney Susan Boleyn from the Georgia Attorney General’s office argued against granting Davis a new evidentiary hearing.
During oral arguments, Judge Barkett criticized the prosecution for objecting to a hearing that can determine the credibility of the new exculpatory evidence, saying: “As bad as it would be to execute an innocent man, it’s also possible the real guilty person who shot Officer MacPhail is not being prosecuted.” The judges will render their decision at a later date.
11th Circuit’s 2-1 decision denying second Habeas petition on basis of procedural bars
On 16 April 2009 the three-judge panel denied Davis’s “Application for Leave to File a Second or Successive Habeas Corpus Petition” by a 2-1 majority. Judges Joel Dubina and Stanley Marcus wrote that they were rejecting the petition based on Davis’ claims having been exhaustively reviewed by Georgia courts and the Georgia Board of Pardons and Paroles, who have all rejected them. “Davis has not presented us with a showing of innocence so compelling that we would be obligated to act today,” they wrote. They also cited procedural rules. The two judges focused on two procedural requirements contained in 28 U.S.C. §2244(b)(2)(A)–(B) (2006), also known as AEDPA, which must be met in order to consider his innocence claim. According to the court’s interpretation, Davis failed to meet either of these procedural requirements. Based on these “gatekeeping requirements,” the judges rejected the petition, thus denying Davis the opportunity to bring his innocence claim to a court of law.
Judge Rosemary Barkett, the dissenting judge, responded to the majority’s procedural concerns, writing, “The majority takes the position that we cannot permit Davis to bring his evidence before the district court because our discretion to do so is constrained by AEDPA. But AEDPA cannot possibly be applied when to do so would offend the Constitution and the fundamental concept of justice that an innocent man should not be executed.
The 11th Circuit issued an order extending the stay of execution for 30 days to allow Davis the opportunity to file a habeas corpus petition with the U.S. Supreme Court.
Davis’ sister, Martina Correia, has been actively campaigning on his behalf. She has attended all of Davis’ court hearings, often sitting in the same room with relatives of MacPhail. After the December 9, 2008 hearing in the 11th Circuit Court, she addressed the concerns of the MacPhail family:
|“||This is not family against family. We have no ill will against the MacPhail family. When justice is found for Troy, there will be justice for Officer MacPhail.”||”|
In an interview with Savannah TV station WTOC, Mark McPhail Jr. says of his father, “He gave his life for the community and now I’m trying to help out his name and help him in some way.” Of the appeals process, he says, “The past two years we’ve had countless appeals and it just keeps on getting drug out.” Of Davis, McPhail says, “He decided to break the law. And our law says, you kill an officer of the law, who tries to uphold it, you must be punished.”
MacPhail’s widow, Joan, has remarked about the successive appeals of Davis:
|“||It’s like another punch in the stomach. You have to relive that night over and over. That’s so wrong. Why shouldn’t we have peace in our lives?|
Tomorrow we continue our Series on The Injustice – Troy Davis, with News