Troy Davis

For the Canadian Football League running back, see Troy Davis.

Troy Anthony Davis
Born	(1968-10-09) October 9, 1968
Nationality	American
Occupation	Former sports coach (currently incarcerated).
Known for	Claiming wrongful conviction in light of actual innocence and facing execution in the State of Georgia.
Website	http://www.troyanthonydavis.org/

Mark Allen MacPhail
Born	ca. 1962
Died	August 19, 1989
Cause of death	Murdered by fatal shot wound, whilst off-duty.
Nationality	American
Citizenship	United States
Occupation	Law enforcement officer, former ranger.

The Troy Davis case concerns the case of Troy Anthony Davis, an African American from the U.S. state of Georgia who was convicted and sentenced to death in 1991 for the August 19, 1989 murder of an off-duty Savannah Police Officer named Mark MacPhail solely on the basis of now-challenged eyewitness testimonies. There was no physical evidence against him and the weapon used in the crime was never found. Since the trial, seven of the nine prosecution witnesses who had linked Davis to the killing have recanted or contradicted their original trial testimony, claiming police coercion or questionable interrogation tactics. One of the witnesses who has remained consistent, Sylvester "Redd" Coles, has himself been the subject of considerable suspicion as the real killer. Coles was seen acting suspiciously the night of Officer MacPhail’s murder and has been heard boasting that he killed an off-duty police officer. Five newly discovered witnesses have said that Coles, who was present at the crime scene with a gun, committed the crime.

Troy Davis has steadfastly maintained his innocence throughout the years. He has repeatedly asked the courts to examine the new evidence which, he claims, proves his innocence, but the courts have, so far, refused to grant him a new trial, or even conduct a hearing in which the recanting eyewitnesses will be cross-examined to determine the credibility of Davis’s new evidence. A bare majority of four Georgia Supreme Court Justices denied Davis’ motion for new trial and evidentiary hearing, citing procedural requirements, while three of the seven justices, including Chief Justice Ward, concluded that the new evidence amounts to an actual innocence claim and justifies a new hearing.

Three times Troy Davis came close to being executed - in July 2007, September 2008, and October 2008 - but in each case a stay of execution was ordered by the courts or the State Board of Pardons and Paroles. On October 24, the 11th Circuit Court of Appeals issued the most recent stay of execution to consider Davis’ request for a second federal habeas petition. If they grant this petition, Davis will be entitled to an evidentiary hearing from the US District Court for the Southern District of Georgia that would allow the recanting witnesses to be heard and cross-examined in a judicial proceeding.

Amnesty International has strongly condemned the planned execution of Davis despite the existence of considerable doubt, and has organized rallies and letter-writing campaigns to persuade the Georgia or Federal courts to grant Davis a new trial or an evidentiary hearing. The Innocence Project has also supported Davis' request for a new trial, and filed Amicus curiae briefs on behalf of Davis, both in the US Supreme Court and, most recently, in the 11th Circuit Court of Appeals. In addition, the National Lawyers Guild has condemned the Georgia authorities for refusing to grant Davis an evidentiary hearing to determine the weight of the new exculpatory evidence, and called for halting the execution process until the evidence is examined properly in a court of law. These organizations insist that it is unconscionable to condemn Troy Davis to death when there are affidavits showing that seven of the nine original eyewitnesses have subsequently recanted or contradicted their trial testimony, and new evidence implicating Coles as the person who committed the murder.

Many American leaders and international figures have spoken out on behalf of Davis. President Jimmy Carter, Pope Benedict XVI, Desmond Tutu Presidential candidate Bob Barr, and former FBI Director William S. Sessions are among the well-known personalities who have severely criticized Georgia authorities for their plan to execute a possibly innocent man, and have called upon the courts to grant Davis a new trial. In addition, the European Union, the European Parliament, and the Secretary General of the Council of Europe have intervened and asked US courts to uphold international standards which prohibit the execution of anyone whose guilt is in doubt.

Davis is currently awaiting the decision of a three-judge panel of the 11th Circuit Court, Judges Joel Fredrick Dubina, Rosemary Barkett, and Stanley Marcus, who heard oral arguments in his case on December 9, 2008. They are expected to render a decision that will determine Davis' right to prove his innocence, and decide whether he will be allowed to have a judicial hearing to weigh the new, exculpatory evidence that has hitherto never been examined in a court of law.

The trial

On August 19, 1989, Officer Mark MacPhail, an off-duty policeman, was working as a security guard at a Burger King restaurant in Savannah, Georgia. Responding to a scuffle that erupted when "Redd" Coles assaulted a homeless man named Larry Young in the parking lot, Officer MacPhail entered the parking lot, and attempted to stop the harassment. He was then shot, and died of gunshot wounds at the scene of the crime.

According to the trial transcripts, the following is what occurred on the night of the murder:

Sylvester "Redd" Coles, a black man, was hassling a homeless man Larry Young, also black, as Young walked from the liquor store with his newly purchased beer. Redd demanded that Young give Redd his beer. Young refused. Young walked away from Redd toward the Burger King parking lot, where Young's girlfriend, Harriet Murray, waited for Young's return. Redd became angry and persisted in his demand for the beer. As the two neared the parking lot, Murray heard the commotion and saw the man hassling Young. She heard him say "You don't know me. I'll shoot you." At that point, she saw that man pull a gun from his waistband. Murray ran for cover.

Redd claimed at trial that he was the instigator. Redd and Young both testified at trial that Redd was the one who had made the threat to shoot Young. While Redd was arguing with Young, Darrell "D.D." Collins and Troy Anthony Davis, both black men, entered the Burger King parking lot. All trial witnesses stated that neither Collins nor Davis spoke to Young. The pistol whipping of Young occurred shortly after Redd threatened to shoot the homeless man. Young had an open gash on his right temple. According to trial witnesses, he sought help from the passengers in a van at the drive-through window and the Burger King manager, Leo Bishop. Young was standing between the van and the Burger King window when shots rang out.

Mark MacPhail was working off-duty but in full uniform as a security guard at the Burger King. He entered the parking lot after Young was assaulted. When the four black men saw MacPhail, each man started to run. According to Redd, when MacPhail yelled for all of them to stop running, Redd was the only one to stop; after this, MacPhail was shot.

Troy Davis initially fled from the scene together with the other men. He surrendered to the authorities on August 23. He admitted to being present at the crime scene, but denied shooting Officer MacPhail, and stated that Sylvester "Redd" Coles had shot Officer MacPhail. Davis asserted his innocence and a jury trial was held.

Earlier on day of the crime, a man named Michael Cooper was shot at a party in Cloverdale, a nearby neighborhood. Davis testified at trial and denied that he was involved in the shooting of Cooper or Officer MacPhail. A ballistics expert testified at the trial that the .38 calibre bullet that killed Officer McPhail could possibly have been fired from the same gun that wounded Michael Cooper, although he admitted that he had "some doubt" about this. On August 28, 1991, based solely on the testimony of eyewitnesses who linked Davis to the shooting of Officer 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.

Appeals

Georgia Supreme Court's First Denial of Appeal

One of the issues raised in the initial appeal was problematic jury selection. The jury in the trial was composed of seven blacks and five whites. Upon Davis raising racial bias in the jury selection process as an issue, it was determined the eight potential black jurors who were peremptorily challenged were removed from the jury pool for plainly non-racist reasons, specifically: for making explicit statements during voir dire (jury selection) that they would not consider applying the death penalty (five of eight), for implicitly or explicitly indicating a personal connection to Davis (two of eight), and for having had recent multiple contacts with law enforcement due to family troubles (one of eight).

However, in 1972, the US Supreme Court ruled that dismissal of jurors solely based upon personal objection to capital punishment is intolerable, stating in the majority opinion of Witherspoon v. Illinois,

A state may not have unlimited challenge for jurors who might have any objection to the death penalty.

While the county in which the trial took place was about two-thirds white and the jury pool was about 57% white, the seated jury was 58% black. Davis' challenge of racial bias in jury selection was therefore dismissed. His conviction and death sentence were affirmed by the Supreme Court of Georgia in 1993.

Denial of state habeas petitions

Davis, like many indigent death row inmates, was represented during his state habeas proceedings by the Georgia Resource Center, whose investigation of his case was hobbled after radical congressional de-funding, which slashed the Center’s budget from from $1,000,000 to $300,000, and its staff of lawyers from eight to two.

As a direct result, the vast majority of the recantations and other new evidence of Mr. 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. As a result, on September 9, 1997, the state habeas corpus court denied Davis' state habeas corpus relief. Davis applied for a certificate of probable cause to appeal in the Georgia Supreme Court, which was granted on February 24, 2000. 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 Mr. 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 the police had “scared” him into falsely testifying by threatening to charge him as an accessory to the crime. He said they told him that he might never get out of prison.

At least three witnesses who testified against Mr. Davis (and a number of others who were not part of the original trial) have since said that Sylvester "Redd" Coles admitted that he was the one who had killed the officer.

Prosecutors, however, 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."

Federal courts' refusal to consider exculpatory evidence

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 an affidavit 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 barred."

Davis filed a Certiorari petition to the US Supreme Court, but on June 25, 2007, the Supreme Court - in a one-line decision - declined to hear the case.

Pleas by Pope Benedict, Archbishop Tutu, Amnesty, Congressmen, and FBI Director

Davis's execution was initially scheduled for July 17, 2007. On July 16, U.S. Congressman John Lewis spoke to the Georgia State Board of Pardons and Paroles on Davis's behalf, suggesting that Coles -- one of the two witnesses who had not recanted -- was the real killer. The Board of Pardons and Paroles received more than four thousand letters on Davis' behalf, including letters written by Nobel Peace Prize winner Archbishop Desmond Tutu, Harry Belafonte, composer and human rights activist William Rowland and former FBI director William S. Sessions. Sister Helen Prejean, author of Dead Man Walking, Amnesty International US director Larry Cox, and representatives from the Council of Europe all spoke out against the planned execution. 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. Governor 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).

Others who voiced their support for clemency are Rep. Jesse Jackson, Jr.(D-IL), actor Mike Farrell, Rep. Sheila Jackson Lee (D-TX), former Texas District Attorney Sam D. Millsap, Jr., and the organization Murder Victims Families for Reconciliation.

On July 16, a ninety day stay of execution was granted by the Georgia State Board of Pardons and Paroles. Davis' family and supporters expressed gratitude for the stay, and were optimistic about a favorable decision from the Board. The Board, however, rejected Davis' petition for clemency, and authorized his execution.

The Georgia Supreme Court's second denial: a 4-3 decision

On August 3, 2007, the Georgia Supreme Court voted to allow a discretionary appeal of Davis's 1991 conviction. It was the second time his appeal reached the Georgia Supreme Court, but the first time since the recantation of witnesses and the new exculpatory evidence. On March 17, 2008, the Georgia Supreme Court, by a slim 4-3 majority, denied the appeal, with the majority writing 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 amounts to an "actual innocence" claim and 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 convincing enough to justify an order to the trial court to conduct a hearing and weigh the credibility of Davis’s new evidence, and to exercise its discretion in determining if the new evidence would create the probability of a different outcome if a new trial were held.

Certiorari Petition in US Supreme Court

On July 14, 2008, Davis' lawyers filed a PETITION FOR A WRIT OF CERTIORARI in the US Supreme Court, asking the Court to 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 Supreme Court should determine that 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).

Pleas by European Parliament, President Carter, Congressman Barr and Rev. Sharpton

Although the Certiorari petition was pending, the Supreme Court initially did not stay the execution. In the meantime, Davis appealed to the State Board of Pardons and Paroles to grant clemency. In a resolution adopted on July 10, 2008, the European Parliament issued a call to US authorities on the case of Troy Davis. Having regard to UN General Assembly resolutions, and having regard to the case of Troy Davis, the European Parliament:

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.

On September 11, 2008, hundreds of people turned out for a rally in Atlanta in support of Davis' 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 nonetheless denied clemency for Davis. The Board gave no reason for its decision.

Following the State Board's unexplained rejection of the clemency request, President Jimmy Carter released a letter urging the State Board to reverse its decision to deny clemency. In his letter, President Carter stated that flaws in Davis' conviction and appeals warrant a closer look, writing in part:

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.

That same month, 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's 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 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.

Amnesty's response to denial of clemency

In response to the Board's decision, 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."

Supreme Court's unexplained denial of petition

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 despite their knowledge that the United States Supreme Court was scheduled 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 went ahead with the planned execution, ordering that Davis be taken to the death chamber, and setting up the execution apparatus. Only a last-minute emergency stay, issued by the U.S. Supreme Court less than two hours before he was scheduled to be put to death, prevented the execution and saved his life. Georgia Attorney General Thurbert Baker and Deputy Attorney General Susan Boleyn filed a brief with the Supreme Court requesting the Supreme Court will not 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 Troy Davis' petition, without offering any explanation. Emboldened by the Supreme Court's unexplained rejection of Davis' petition, District Attorney Lawton set a new execution date for October 27, 2008.

Second federal habeas petition

On October 23, 2008, Davis 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 Davis is innocent and that 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. Attempting to influence public opinion, Chatham County District Attorney Spencer Lawton also published an op-ed in the Atlanta Journal Constitution saying, "The post-conviction stridency we’ve seen has been much about the death penalty and little about Davis.”

On December 9, in an overfilled courtroom in Atlanta, GA, the three-judge panel who will determine Davis' fate (Judges Joel Fredrick Dubina, Rosemary Barkett, and Stanley Marcus) heard oral arguments from Davis' lawyers (Arnold & Porter lawyer Jason Ewart) and Georgia District Attorneys. The judges will render their decision at a later date.

Davis' biography

Troy Anthony Davis was born on October 9, 1968 (1968-10-09) (age 40). Davis was a coach in the Savannah Police Athletic League and had signed up for service in the United States Marine Corps.

His sister, Martina Correia, a cancer sufferer, actively campaigns on his behalf.

External links

• Our system owes Troy another day in court, op-ed by William S. Sessions (former FBI Director and Federal Judge)
• Bob Herbert of The New York Times on the Davis case, September 20, 2008
• New Execution Date Set For Troy Anthony Davis (Contains detailed description of the incidents that led to the conviction, as well as full legal history of the case until August 14, 2008)
• Press Release of President Jimmy Carter
• Is Georgia About to Execute an Innocent Man? The Story of Troy Davis
• Troy Davis Deserves A New Trial, Amy Goodman (Democracy Now)