Georgia:Troy Davis Gets Last Minute Stay Tonight

[smokey1]

Supreme Court issues stay of execution for Davis

By BILL RANKIN, RHONDA COOK, MARCUS K. GARNER

The Atlanta Journal-Constitution

Tuesday, September 23, 2008
Jackson — The U.S. Supreme Court on Tuesday issued a stay of execution for Troy Anthony Davis less than two hours before he was to be put to death by lethal injection.

Davis’ family and supporters, who for years have pressed for a new trial on claims Davis is innocent, broke into tears and song when they learned the high court had at least temporarily postponed the execution.

Troy Davis received a stay of execution just before he was set to receive a lethal injection for the 1989 murder of a Savannah police officer.
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“I’ve been praying for this moment forever,” said Davis’s sister and most outspoken proponent, Martina Correia. Davis’ mother, Virginia Davis, said God had answered their prayers.

Just a few hours earlier, the mother and sister had given Davis what they thought could be their final good-byes at the Georgia Diagnostic and Classification Prison in Jackson.

Davis, 39, sits on death row for the Aug. 19, 1989, killing of Savannah Police Officer Mark Allen MacPhail. He was scheduled to be executed at 7 p.m.

Annelie Reaves, MacPhail’s sister, said the victim’s family was furious but would wait for the execution to be rescheduled.

“It should have happened today,” she said, “but justice will be served.”

At least two members of MacPhail’s family were to witness the execution, and they will return when the execution is rescheduled, Reaves said.

In response to Davis’ hope that the real killer will be found, the officer’s family and friends all laughed. “He knows who the killer is,” Reaves said of Davis.

It was the second time that Davis, whose claims of innocence have attracted international attention, was granted a stay hours before he was to be put to death. In July 2007, the state Board of Pardons and Paroles postponed his execution less than 24 hours before it was to occur.

This time, the stay came from the nation’s highest court.

The U.S. Supreme Court’s justices are scheduled to meet Monday to decide whether to hear Davis’ appeal of a ruling issued by the Georgia Supreme Court in March. In that 4-3 decision, the state Supreme Court rejected Davis’ bid for a new trial or a court hearing to present new evidence.

In its order, the U.S. Supreme Court said if the justices decline to hear Davis’ case, “this stay shall terminate automatically.” If the court agrees to hear the case, the stay will remain in force until the high court issues its ultimate ruling, the order said.

The high court did not say when it would announce its decision whether to hear or deny Davis’ appeal.

Davis disclosed the news of his stay in a phone call to his sister and civil rights activist Rev. Al Sharpton.

“I truly feel blessed and I know we still have work to do,” Davis said, according to Sharpton. “With God, all things are possible.”

According to Sharpton, Davis said he had already recorded his last statement, as is customary for death-row inmates before they are to be executed. Davis said he had also prayed for the family of MacPhail, a 27-year-old father of two who was gunned down at a Savannah Burger King parking lot.

Because the U.S. Supreme Court is expected to announce whether it will hear the appeal in the next week or so, Davis may not be spared for long, Sharpton said.

“One week may not seem like a long time, but when you have only two hours to live it’s a lifetime,” he added.

Lester Davis, Troy Davis’ brother, said, “I’ve got to stay focused because it’s not over yet. Hopefully, this gives them enough time to understand the injustice of this case.”

Since his 1991 trial, seven of nine key prosecution witnesses who testified against Davis have recanted their testimony.

In March, a deeply divided state Supreme Court turned down Davis’ appeal, saying the recantations of seven witnesses who testified against him were not enough to win him a new trial or court hearing.

“We simply cannot disregard the jury’s verdict,” Justice Harold Melton wrote. The majority, he added, could not ignore the trial testimony, “and, in fact, we favor that original testimony over the new.”

Chief Justice Leah Ward Sears issued a strong dissent.

“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,” she wrote.

The new testimony, if found credible, could lead a new jury to find reasonable doubt of Davis’ guilt or enough residual doubt to

impose a sentence other than death, she wrote.

www.ajc.com/gwinnett/content/metro/stories/2008/09/23/davis_stay_execution.html

[pumpkinpie]

This is good news! I hope he gets a new trial.

[smokey1]

Sept 23, 2008 21:01:04 GMT -5 @pumpkinpie said:

This is good news! I hope he gets a new trial.

I am so glad for troy,his sister will be so happy she has done so much
for her brother

[happyhaddock]

Who can stand up and say with conviction that this is a sure and certain case for death?

[smokey1]

Sept 24, 2008 16:44:51 GMT -5 happyhaddock said:

Who can stand up and say with conviction that this is a sure and certain case for death?

Troy Anthony Davis’ execution date and time has been set. If clemency is not granted, Davis will soon be choosing his last meal and determining how his body should be disposed of after his death, scheduled for 7pm on September 23rd.

Davis’ case for clemency is compelling, and has already attracted the attention of media and human rights groups in July of last year. Twenty-four hours before Davis’ scheduled execution on July 16, 2007, the Georgia State Board of Pardons and Paroles issued a ninety-day stay to allow it to consider evidence of innocence presented at Davis’ clemency hearing.

The Georgia Supreme Court subsequently agreed to hear the death row prisoner's extraordinary motion for a new trial, but in March the Court rejected the motion largely on procedural grounds in a 4-3 vote.

Troubled by this result, Chief Justice Sears stated in her dissent:

“[…] I believe that this case illustrates that this Court’s approach in extraordinary motions for new trials based on new evidence is overly rigid and fails to allow an adequate inquiry into the fundamental question, which is whether or not an innocent person might have been convicted or even, as in this case, might be put to death.”

In July of 2007, the Board of Pardons and Paroles said that it would “not allow an execution to proceed in this State unless and until its members are convinced that there is no doubt as to the guilt of the accused.”

But were Davis to be granted a new trial today, the State would have great difficulty proving its case beyond a reasonable doubt. There was no physical evidence linking Davis to the crime for which he was convicted, the 1989 murder of an off-duty police officer in Savannah, Mark MacPhail. At the trial, the witness testimony presented inconsistencies, and since then, seven of nine non-police witnesses have recanted or contradicted their original testimony, several citing that they gave their original statements against Davis under police intimidation or coercion.

Furthermore, affidavits signed by numerous people who came forward after Davis' conviction implicate one of the non-recanting witnesses in the murder. These affidavits put that witness, Sylvester Coles, at the scene with a .38 caliber gun – the same caliber as the murder weapon, and detail how he hid the gun after the shooting in a dark parking lot and even later boasted about having committed the murder and escaping punishment. At the time of the original investigation, Coles and his lawyer met promptly with the police, who subsequently neglected to question Cole’s involvement in the murder, search his house for the murder weapon, or include his picture in witness photo spreads.

The testimony of the other non-recanting witness is also highly questionable. He identified Davis at trial as the shooter, although he had claimed two years earlier that he “wouldn’t recognize them [the shooter and another man at the scene] again except for their clothes.”

Numerous national, state, and local human rights groups and individuals are taking actions to protest Davis’ imminent fate. They are organizing a rally to take place on September 11th at six in the evening at the State Capitol in Atlanta, a day before Troy’s scheduled clemency hearing with the Georgia Board of Pardons and Paroles. Amnesty International launched an on-line letter-writing campaign at www.amnestyusa.org/troydavis to urge the Board to be true to their July 2007 words, stating that no execution would proceed in Georgia unless and until its members are convinced that there is no doubt as to the guilt of the accused. If Troy Anthony Davis, whose case against him is full of holes, doubts and discrepancies, is executed on September 23rd, it will be, indeed, a travesty of justice.

www.counterpunch.org/marlowe09102008.html

[pumpkinpie]

Questions Before the U.S. Supreme Court in the Troy Davis Case
Posted: October 07, 2008

The United States Supreme Court is currently considering whether to hear the case of Troy Davis or to allow his execution to go forward. The Court stayed his execution on September 23, less than two hours before it was to take place. The formal term for agreeing to hear a case is "granting a petition for certiorari." Davis' attorneys submitted such a petition, raising a number of questions on which the Court could grant a hearing. The first question presented to the Court is:

"Does the Eighth Amendment to the U.S. Constitution create a substantive right of the innocent not to be executed so as to invoke the procedural requirements of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution when substantial evidence of innocence is discovered?"

Davis' petition to the Supreme Court is an appeal of the decision by the Georgia Supreme Court denying him an evidentiary hearing to examine evidence of his innocence. Davis claims that the 8th Amendment, which forbids cruel and unusual punishments, bars the execution of defendants with substantial reliable evidence of their innocence obtained since trial. Georgia lower courts refused to grant an evidentiary hearing in the case on the grounds that the new evidence--the recantation of the eyewitness testimony of 7 of 9 non-police witnesses and additional testimony implicating one of the eyewitnesses as the shooter--does not meet Georgia state law standards pertaining to the applicability of recantation testimony. However, the dissenting State Supreme Court judges argued that the “application of the majority’s ‘categorical rule’ against recantation evidence ‘fails to allow an adequate inquiry into the fundamental question, whether or not an innocent person might be convicted or even, as in this case, might be put to death.’”


In Herrera v. Collins (1993), the U.S. Supreme Court assumed that “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” Davis is asking the Court to go beyond this assumption and hold that the constitution bars the execution of a demonstrably innocent defendant. If the Court so holds, it follows that Davis is entitled to an evidentiary hearing to protect that right under the "due process" clause of the 14th Amendment . At such a hearing, the recantation of the eyewitnesses could be closely examined.

Davis' petition raises two other related questions that the Supreme Court could agree to consider:

"Alternatively, the Due Process Clause of the Fourteenth Amendment protects State-created liberty interests when State law mandates a decision favorable to an individual based on a set of substantive predicates. Georgia law creates an Extraordinary Motion for New Trial that mandates a new trial based on newly-discovered evidence if the defendant can show that the new evidence meets six substantive predicates. Does Georgia’s Extraordinary Motion for New Trial create a liberty interest protected by procedural due process?"

Here, Davis' request for a hearing rests on his claim that Georgia's state law surrounding a motion for a new trial creates a federally protected right involving his life and liberty. To ensure that such a constitutional right is respected, a hearing on his new evidence is required.

Finally, Davis asks the Court to consider:

"If either the Eighth Amendment or Georgia law creates a liberty interest protected by the Due Process Clause, does the Supreme Court of Georgia’s failure to grant an evidentiary hearing to review the cumulative substance and credibility of Mr. Davis’ admissible new innocence evidence violate the procedural requirements of the Due Process Clause?"

In other words, is Georgia's denial of a hearing unreasonable, given what is at stake? Once the Court recognizes that Davis is raising a right protected by the Due Process Clause, the question of whether he should receive a hearing is governed by a balancing of the various interests of the defendant and the state. For Davis, without a hearing he could lose his life, even though he may be innocent; for the state, granting a hearing only requires them to delay their carrying out of their sentence.

Davis claims that in making their decision, the lower courts looked at each piece of his new evidence in isolation from all others, rather than conducting a cumulative analysis of all of the evidence, as the U.S. Supreme Court has repeatedly instructed lower courts to do. Davis' attorneys argue that if the evidence is looked at cumulatively, the recantation testimony could have the effect of undermining confidence in the original verdict. Davis' attorneys noted that eyewitness misidentification testimony has been a factor in 77% of all post-conviction DNA exonerations, highlighting the fallible nature of the type of testimony in question here. The prosecution’s case against Troy Davis was comprised almost entirely of eyewitness testimony. Davis' petition states: “Society, thus, has an interest in ensuring that the executed who can produce substantial, admissible new evidence of their innocence are not executed without the opportunity to vindicate themselves through minimal due process required by our Constitution.”

www.deathpenaltyinfo.org/questions-us-supreme-court-troy-davis-case

[smokey1]

troy deserves a new trial,I am concerned that the 2 last witnesses havent recanted & apparently he has admitted being at the 2 shootings within 1 hour,saying that,at the mimimum i think he should be given a deal to lwop there is just to much doubt in this case.

[happyhaddock]

Oct 8, 2008 0:51:30 GMT -5 smokey1 said:

troy deserves a new trial,I am concerned that the 2 last witnesses havent recanted & apparently he has admitted being at the 2 shootings within 1 hour,saying that,at the mimimum i think he should be given a deal to lwop there is just to much doubt in this case.

The DP is often sought where the evidence is weak. It ensures a jury much more inclined to believe the prosecution witnesses and much more inclined to vote guilty.

[smokey1]

U.S. Supreme Court rejects execution appeal
By Robbie Brown
Published: October 15, 2008
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ATLANTA: Three weeks after temporarily sparing a Georgia inmate from the death penalty, the United States Supreme Court on Tuesday declined to hear his appeal, a decision that will probably lead to a quick execution.

The inmate, Troy Davis, 40, was convicted in 1991 of murdering Mark MacPhail, a Savannah police officer. The court's decision, made without comment or explanation, allows Georgia officials to obtain a new death warrant and schedule the execution, probably in the next few days or weeks.

The case has led to an outpouring of support for Davis, largely because seven of nine witnesses against him have recanted their testimony, with two claiming that the police had pressured them to testify against him. Prosecutors presented no physical evidence and no murder weapon, and three witnesses have said another man admitted to the murder.

World leaders including former President Jimmy Carter, Archbishop Desmond Tutu of South Africa and Pope Benedict XVI have challenged the fairness of Davis's conviction.

"Georgia is willing to risk the credibility of its whole death penalty system in carrying out this one very questionable execution," said Steven Bright, a visiting lecturer at Yale Law School and president of the Southern Center for Human Rights. "The death penalty should really only be enforced in cases where there is no question about guilt, and that just cannot be said about this case."
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Prosecutors have rejected the claims of the witnesses who recanted, and both the Georgia Supreme Court and the State Board of Paroles and Pardons have denied Davis's requests for new trials and clemency.

Members of the family of the slain police officer expressed relief at the Supreme Court's decision on Tuesday.

"My son will always be missed in our hearts," said Anneliese MacPhail, the mother of Officer MacPhail. "But at least we can relax now and don't have to worry about whether justice will be served."

The Supreme Court granted a stay of execution last month, two hours before Davis was scheduled to die by lethal injection. A judge is expected to set a new time frame for the execution by next week, said Spencer Lawton Jr., the district attorney in Chatham County, Georgia, where the case originated.

Davis's lawyers had asked the court to determine whether the Eighth Amendment's ban on cruel and unusual punishment bars the execution of the innocent. They wrote in a petition in July that the case "allows this court an opportunity to determine what it has only before assumed: that the execution of an innocent man is constitutionally abhorrent."

Martina Correia, Davis's sister, said his lawyers were planning another request to the state parole board for a new hearing. "We have to keep on battling," Correia said. "But my brother told me, 'Even if they succeed in killing me, it will dismantle the death penalty system in Georgia because people are tired of injustice.' "

Jared Feuer, the Southern regional director for Amnesty International, said he was "shocked and saddened" by the court's action on Tuesday.

"This decision shows how flawed and immoral the death penalty is," Feuer said. "The court had been asked to rule on the basic question of guilt and innocence and the constitutional right of an individual to not be executed when there is doubt of his guilt. The court ducked its obligation."

Lawton, the district attorney, said Davis received a fair trial and benefited from "an international firestorm of public relations campaigning" on his behalf. He pointed out that Davis's conviction had been upheld by "29 judges in seven different types of reviews, over the course of 17 years, before today's ruling by the U.S. Supreme Court."

Officer MacPhail was shot and killed early on the morning of Aug. 19, 1989, as he tried to break up a fight between two men in a Burger King parking lot. Several witnesses testified that they had heard one of the two men, Sylvester Coles, threaten the other and then begin pistol whipping him over the head.

Officer MacPhail, who was moonlighting as a security guard, interrupted the fight and was shot before he could remove his gun. Davis testified that he had been at a nearby pool hall but had left before Officer MacPhail arrived.

MacPhail said, however, that she was confident Davis had committed the murder. "He didn't give my son a chance," she said. "He just shot him down in cold blood."

www.iht.com/articles/2008/10/15/america/15execute.php

[pumpkinpie]

Troy Davis Execution Stayed by Federal Appeals Court
Posted: October 24, 2008

The US Court of Appeals for the 11th Circuit issued a stay for Georgia death row inmate Troy Davis on October 24. The federal appeals court’s three-judge panel ordered both sides to draft briefs to address wheter Davis can be executed if he can demonstrate his likely innocence. Davis’ case has garnered both international and national attention. Former President Jimmy Carter and the European Union were among those calling for a stay of execution. Davis was scheduled to be executed on October 27 after the U.S. Supreme Court denied review following Davis' unsuccessful appeal to the Georgia Supreme Court.


Davis' original conviction was based primarily on eyewitness testimony. Since the 1991 trial, 7 of the 9 non-police eyewitnesses have recanted their testimony, with some pointing to another suspect.

(G. Bluestein, “Appeals court halts execution of Ga. Cop killer,” Associated Press, October 24, 2008). See Innocence.
www.deathpenaltyinfo.org/troy-davis-execution-stayed-federal-appeals-court