Court to hear Davis’ plea for new trial

Those who love convicted killer Troy Anthony Davis and those who loved slain Savannah police Officer Mark MacPhail find themselves in a familiar, painful place again: preparing for a court hearing on the 19-year-old murder case.

Is Davis innocent? Should recanting or backtracking witnesses be heard?

Or has too much time passed? Have there been too many unnecessary legal contortions in a death penalty case that has come close to finality with executions scheduled three times in the past 17 months?

Today the 11th U.S. Circuit Court of Appeals will hear Davis’ request for a new trial on the basis that he didn’t do it, an appeal called a “stand-alone innocence” claim.

Davis’ family is hoping this extraordinary approach will get them a “fair shake” from the courts, something they feel they haven’t had so far, said sister Martina Correia.

MacPhail’s mother, 75-year-old Anneliese MacPhail, is weary of the seemingly constant court appeals and hearings.

Three times she has come close to seeing the man convicted of murdering her son executed only to have the lethal injection called off —- in July 2007 when the state Pardons and Paroles Board stopped it with 24 hours to spare, in September when the U.S. Supreme Court stopped it with two hours to spare and in October when the federal appeals court stopped it with three days to spare.

Each time the murder is resurrected in the news, “it’s like they rip out my heart again. It’s been hell,” Anneliese MacPhail said.

The two sides of the debate have filed more than 100 pages of legal arguments in this one appeal. And, the case has made several trips through state and federal courts, including the U.S. Supreme Court.

Now Davis’ lawyers insist a new trial is needed because seven of nine witnesses have either recanted or are now uncertain of their testimony about MacPhail’s August 1989 murder in a Savannah Burger King parking lot. The lawyers have produced affidavits from witnesses who say they are no longer sure of what they saw that morning or say their testimony was a lie. Davis’ lawyers say the real killer was Sylvester “Redd” Coles, who was in the parking lot with Davis.

“I’ve been hearing that for 19 years,” Anneliese MacPhail said. “If you say it often enough [people] believe it. He is guilty.”

Davis’ family is certain the opposite is true.

“We’ve been fighting this battle for years,” Correia said. “If they [MacPhail’s family] were in our situation, what would they do?”

MacPhail, a 27-year-old former Army Ranger and father of two, was working a second job as a security guard when he responded to the wails of a homeless man being pistol-whipped. When MacPhail got to the parking lot, Davis hit him in the head and then shot the officer sprawled on the parking lot pavement three times, witnesses testified.

At trial, prosecutors compared bullet casings from the parking lot shooting to a gun they say Davis used in an earlier shooting.

In recent years, dozens of vigils have been held and death penalty opponents have expressed horror that Georgia might execute an innocent man. Pope Benedict XVI, former President Jimmy Carter, former FBI Director William S. Sessions and Nobel Peace Prize-winner Desmond Tutu have called for mercy.

All along, Chatham County prosecutors have said they are certain Davis is a cop killer and deserves to die.

Now Davis’ legal team is arguing that a 1993 U.S. Supreme Court decision allows them a new hearing even at this late date.

In that decision, the justices upheld a capital sentence against Texas inmate Lionel Herrera even though the condemned man produced affidavits from people swearing his deceased brother committed the murders. Herrera sought another trial.

But, writing for the majority, Chief Justice William Rehnquist said, “We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of the defendant unconstitutional.”

The appellate court in Atlanta will decide if Davis has cleared the hurdle for a court hearing in which they can present new evidence.

John Blume, a Cornell University law professor who has represented death row inmates, said it is unclear exactly what a defendant must show to meet the high standard.

“Historically, they have been, no question, difficult claims to pursue,” Blume said. “Right now, it’s a little mysterious just what the standard is.”

Davis’ lawyers said they have met that standard, and it would be “constitutionally intolerable” to execute Davis —- now 40 —- without looking at his new evidence.