Judges hear case to halt Troy Davis’ execution

Federal judges weighed Tuesday whether condemned inmate Troy Davis has presented enough evidence to stop his execution.

Last month, a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta halted Davis’s scheduled execution — the third time his life was spared shortly before he was to be put to death. The judges called their stay “conditional” and scheduled arguments on the appeal.

One judge, Joel Dubina of Montgomery, indicated Tuesday he did not think Davis’s claims are compelling enough to warrant a new court hearing. Another judge, Rosemary Barkett of Miami, said she would like to see Davis’s innocence claims fleshed out in court.

The third judge, Stanley Marcus of Miami, closely questioned lawyers as to whether Davis had cleared the enormously difficult legal thresholds needed to allow his appeal to go any further.

Davis, 40, sits on death row for the 1989 killing of Savannah Police Officer Mark MacPhail. MacPhail was working off-duty when he was gunned down in a Burger King parking lot.

The 27-year-old former Army Ranger and father of two was unable to draw his weapon. He was shot three times.

Since the 1991 capital trial, seven of nine witnesses who testified against Davis have recanted their testimony.

Relatives of the slain officer listened to Tuesday’s arguments from the front row in the courtroom. Across the aisle sat members of Davis’s family.

MacPhail’s mother, Anneliese MacPhail, called the repeated appeals and stays of execution “frustrating” and said Davis’s time for judgment has come. “We’ve suffered through this, the whole family,” she said outside the courthouse after the arguments had ended.

Martina Correia, Davis’s sister, standing a few feet away, said her brother is innocent. “This is not family against family,” she said. “We have no animosity or ill will against the MacPhail family. But killing Troy is not going to bring justice.”

At the close of Tuesday’s hearing, Dubina called the appeal “a very difficult case.” He did not indicate when the 11th Circuit would issue a ruling.

During the arguments, the judges asked whether the federal courts could even entertain a case involving a wrongly convicted death-row inmate at this late stage in the appeals process.

Senior Assistant Attorney General Susan Boleyn told the court that, in extraordinary cases, such a claim could be heard.

But Davis’s case is not such a case, Boleyn said. The recantation evidence is untrustworthy, she said, and courts have long held that recantations should be considered with the “highest suspicion.”

Boleyn reminded the judges that Davis has previously been denied relief by the state courts, the 11th Circuit, the U.S. Supreme Court and the state Board of Pardons and Paroles.

But Marcus and Barkett punched holes in the state’s case against Davis.

Marcus noted that, since the trial, three witnesses have come forward implicating Redd Coles, who was also at the scene, in MacPhail’s killing.

Davis became the prime suspect after Coles went to police the day after the killing. He also testified against Davis at trial. Coles, in a previous interview with The Atlanta Journal-Constitution, declined comment.

Barkett expressed frustration that none of the eyewitnesses was shown Coles’ photo or presented with a lineup with him in it. Perhaps, Barkett said, Savannah police faced so much pressure to quickly solve the cop killing they did not focus enough on Coles.

As bad as it would be to execute an innocent man, Barkett said, “it’s also possible the real guilty person who shot Office MacPhail is not being prosecuted.”

Still, Marcus called Davis’s innocence claims “murky.” They do not have the kind of forensic DNA evidence that categorically clears him, said the judge, a former U.S. attorney.

At least one eyewitness, Stephen Sanders, who testified he saw Davis shoot and kill MacPhail, has not recanted his trial testimony, Marcus said. The judge recounted Sanders’ testimony during the 1991 capital trial, “You don’t forget someone who stands over and shoots someone.”

But Tom Dunn, one of Davis’s lawyers, said Sanders’ testimony was not credible. Sanders initially told police he could not identify the shooter, meaning his memory had to improve with time, Dunn said.