By Bill Rankin
September 21, 2011
With only a few hours remaining before Troy Anthony Davis’ execution scheduled for tonight, his lawyers are pursuing final appeals and protests are mounting.
Davis, 42, has been here before. On three prior occasions, the state of Georgia set his execution date and on each occasion — once with just about two hours to go — he was granted stays. But Davis and his lawyers had pinned their hopes this week on the Georgia Board of Pardons and Paroles, which has the sole authority in Georgia to commute a death sentence. On Tuesday, the board rejected their bid.
He is scheduled to be put to death by lethal injection at 7 p.m.
Davis’ final chances appear to rest on a court petition filed this morning before a Superior Court judge in Butts County, home to Georgia’s death row. The filing says ballistics evidence used to convict Davis during the 1991 trial has been discredited as has testimony from a woman who said she was an eyewitness to the murder and a jailhouse snitch who testified at trial that Davis told him he was the killer.
“We are going to give the justice system one more chance to avoid a legal, constitutional and moral disaster,” Brian Kammer, one of Davis’ lawyers, said.
Davis sits on death row for the 1989 murder of off-duty Savannah Police Officer Mark Allen MacPhail, a 27-year-old former Army Ranger and father of two who was shot three times before he could draw his weapon. Since the trial, a number of key prosecution witnesses have recanted or backed off their testimony and Davis’ innocence claims have generated worldwide attention.
Early this morning, his lawyers tried to gain access to the state prison in Jackson where Davis resides so he could be administered a polygraph test to try and show he is not a cop killer. But his lawyers were rebuffed.
“We came here to try and prove Mr. Davis is innocent and unfortunately we were denied that opportunity by the Department of Corrections,” Stephen Marsh, one of Davis’ lawyers, said shortly after being turned away from the prison.
Protest rallies and vigils are planned today outside the prison — and across the world — calling for a halt to Davis’ execution as his supporters say there is too much doubt in the case to allow him to be put to death by lethal injection.
Prosecutors steadfastly maintain that Davis is guilty and MacPhail’s family members say they have no doubt in Davis’ guilt and want his execution to be carried out.
“There is no doubt in my mind,” MacPhail’s mother, Anneliese MacPhail, said when asked if she thought Davis was guilty. If Davis’ execution is carried out as planned, “I guess justice will be done and that’s what we were fighting for,” she said.
Davis has mounted repeated court challenges to his conviction and sentence but has been rebuffed every step of the way. The U.S. Supreme Court stepped in at one point, issuing an extraordinary order directing a federal judge in Savannah to determine if Davis could clearly establish his innocence. But the judge discredited six of the seven witnesses who recanted or backed off their testimony and found Davis had not cleared that difficult legal threshold, denying his challenge.
Still, a host of dignitaries have called for Davis to be spared execution out of concern an innocent man could be put to death. These include former President Jimmy Carter, Pope Benedict XVI, former FBI Director Williams Sessions, former Georgia congressman Bob Barr and former Georgia Supreme Court Chief Justice Norman Fletcher.
Protesters are planning to gather across the street from the prison at the Towaligia County Line Baptist Church around 3 p.m. The NAACP, which is organizing the protest, said the Revs. Jesse Jackson and Al Sharpton will lead the call to stop the execution.
On Tuesday, Davis’ lawyers asked the parole board to reconsider its rejection of clemency. The Innocence Project and the Innocence Network also asked the board to reconsider. “The identification procedures used to convict Davis would never pass muster today,” Barry Scheck, co-founder of the Innocence Project, said.
Six retired corrections officials, including Allen Ault, the former director of the prison system, also asked the board to reconsider its decision. “We write to you today with the overwhelming concern that an innocent person could be executed in Georgia tonight,” they wrote in a letter.
But the parole board, in a brief statement released this morning, said it would not reconsider its decision to deny clemency.
Today’s last-ditch court filing by Davis’ lawyers says that new evidence “exposes key elements of the state’s case against Mr. Davis at trial to be egregiously false and misleading.”
The court filing says that GBI ballistics testimony at the 1991 trial is no longer reliable. At the trial, a GBI expert said there were enough similarities between shell casings found at the scene of MacPhail’s murder and shell casings found at the scene of another shooting earlier in the evening to show the casings could have come from the same handgun.
Prosecutors said Davis first fired shots at a pool party in Savannah’s Cloverdale neighborhood, hitting a man in the face, and then later shot and killed MacPhail. But forensics experts have now shown that the ballistics testimony is no longer reliable, the filing said.
The filing also says that jailhouse informant Kevin McQueen’s testimony at trial that Davis confessed to him he killed MacPhail can no longer be relied upon. The filing notes that a federal judge who heard recantation testimony from McQueen found McQueen’s trial testimony to be “patently false.”
At trial, McQueen provided the state with a motive for Davis, saying Davis told him he killed MacPhail because Davis didn’t want to be tied to the Cloverdale shooting. “Now it is clear that Mr. Davis never should have had to confront this evidence as it was completely false,” the court filing says.
If the Butts County judge denies the motion, Davis’ lawyers can then appeal to the Georgia Supreme Court and then the U.S. Supreme Court.
Marsh, a member of Davis’ legal team from the Washington law firm Arnold & Porter, said there is too much doubt about the eyewitness testimony at the 1991 trial to let Davis be convicted.
Marsh said in a telephone interview today that the eyewitnesses included an man who initially said he could not recognize the shooter except for the clothes he was wearing; a woman who initially said she could not put a face with the shooter; a woman who said she recognized Davis in the dark from more than 120 feet away; and a man who was looking through his car’s tinted windows and said he was only 60 percent sure he could identify Davis.
“You can’t execute someone based on that kind of testimony,” Marsh said. “It’s unconscionable.”
Jennifer Dysart, an eyewitness expert, said she had planned to testify at Monday’s clemency hearing, but the parole board ended Davis’ presentation before she could give her presentation.
In an interview today, Dysart said numerous studies show that eyewitness testimony is unreliable and the procedures used by Savannah police in the Davis investigation would not be allowed today.
“Even if the parole board didn’t believe the recantations, there were significant problems with all the eyewitness testimony,” she said “Nothing reliable should come from that testimony. … I wish the board had heard my presentation.”
In Savannah this morning, about 18 supporters gathered outside Chatham County District Attorney Larry Chisolm’s office to present 240,000 signatures of people asking for clemency. Organizer Sister Jackie Griffith said the group hopes Chisolm can use any influence he may have to urge Chatham Superior Court Judge Penny Freesemann to halt the execution.
“We believe anyone who has power should use it for justice,” said Griffith, a Catholic nun who has worked to stop Davis’ execution since 1998. She said she was drawn to the case because she believes all life is sacred, “whether it’s a guilty life or an innocent life.”
“We’re very prayerful and dogged in our efforts…we’re always hopeful, but hope comes with reality,” she added.
Holding a sign that read “Justice for Troy Davis, Too Much Doubt,” supporters Denise Chaney and Valdara Wall chatted about the case, referencing the man who was with Davis around the time of the shooting, Sylvester “Redd” Coles, who is rumored to have admitted in recent years to have murdered Officer Mark Allen MacPhail.
“When Redd finally comes forth and admits it, how are they going to bring Troy back?” Wall asked.
Supporter Sharon Burrell said she has worked on behalf of Troy Davis since 2009. She said she hopes the MacPhail family can have some peace, but that it can’t be achieved through Davis’ death.
“I sure know it won’t bring closure for the family. They say it will, but it won’t because it’s taking another a life,” she said.
Chisolm did not meet with the group, but the supporters delivered the boxes of signatures to a representative before ending their rally with prayer. Moments later, the group boarded a bus bound for Jackson, where they plan to hold vigil in Davis’ final hours.
Tuesday evening, Marsh had expressed hope that prison officials would allow Davis to take a polygraph test.
But Davis also wanted some assurance from the parole board that it will take his test into consideration, Marsh said, adding that Davis was not going to spend hours away from his family on what could be the last day of his life if taking the test was not going to make any difference.