The slain officer’s mother, Anneliese MacPhail, was in shock.
“I was really hoping they’d deny this appeal, not just shove it off to somewhere else,” she said, noting Wednesday is the 20th anniversary of her son’s death. “I would like it to come to an end.”
As for Davis, she said, “If you tell yourself for 20 years you didn’t do it, you start to believe it. I’m still convinced he did it.”
The high court’s decision gave yet another reprieve to Davis, whose life already had been spared three times shortly before his scheduled execution. If the court had rejected Davis’ latest request, the Chatham County district attorney was expected to seek a new execution date.
Davis’ innocence claims have attracted international attention and support. Former President Jimmy Carter and Pope Benedict XVI have said Davis should not be executed. In May, 27 former justices, judges and prosecutors filed a legal brief asking the high court to let a federal judge hear Davis’ claims.
Davis sits on death row for the 1989 killing of MacPhail, who was off-duty. MacPhail, 27, was shot multiple times after he responded to the wails of a homeless man being pistol-whipped in a Burger King parking lot.
Since the 1991 trial, seven of nine key prosecution witnesses have recanted their testimony. This includes recantations from witnesses who testified they saw Davis shoot and kill MacPhail.
Others have come forward and said another man, Sylvester “Redd” Coles, has admitted to them he was the killer. Coles, who denied shooting MacPhail, was at the scene and the first person to implicate Davis.
In Monday’s decision, Justice John Paul Stevens noted that no state or federal court has convened a hearing and heard the new testimony and assessed its reliability. “The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing,” Stevens wrote. He was joined by Justices Ruth Bader Ginsburg and Stephen Breyer.
Justice Antonin Scalia, joined by Justice Clarence Thomas, issued a vigorous dissent. He noted that the Georgia Supreme Court, the state Board of Pardons and Paroles and the federal appeals court in Atlanta already reviewed and rejected Davis’ claims of innocence.
The high court, Scalia said, is ordering a hearing that is “a fool’s errand” because Davis’ claim is “a sure loser.”
“Transferring his petition to the district court is a confusing exercise that can serve no purpose except to delay the state’s execution of its lawful criminal judgment,” Scalia said.
The decision noted that the court’s newest justice, Sonia Sotomayor, did not participate in it. Nor did the decision indicate how Chief Justice John Roberts and Justices Anthony Kennedy and Samuel Alito voted. But at least two of them must have voted to grant Davis’ request because a five-vote majority was needed for it to prevail.
The court also did not assign the case to a specific judge. Davis’ federal appeal was previously denied by a senior judge who has since passed away. Once the case is formally transferred to the federal courthouse in Savannah, it will likely be assigned to either Chief Judge William T. Moore Jr. or Senior Judge B. Avant Edenfield, the clerk of court, Scott Poff, said Monday.
Davis’ federal appeal was stifled by the federal Antiterrorism and Effective Death Penalty Act of 1996, passed by Congress to streamline appeals. The statute makes it extremely difficult for death-row inmates to present new evidence.
In Monday’s order, the high court did not specify what new evidence could be presented at the upcoming hearing.
Stephen Bright of the Southern Center for Human Rights in Atlanta noted that the order shifts the burden of proof onto Davis to show he was innocent. “That’s a much more difficult proposition,” Bright said. “It doesn’t mean it can’t be done, but it’s a significant burden to overcome.”
New York attorney George Kendall, who also litigates death-penalty cases, said a key victory for Davis is that a judge can finally hear the testimony in open court, look the witnesses in the eyes, gauge their credibility and decide if Davis’ claims have merit. To date, the recantation testimony has been presented in sworn affidavits by the state’s witnesses who say police, intent on getting Davis, intimidated them into implicating him. Some of the witnesses also have testified in closed hearings before the state parole board.
“If Troy Davis can persuade a district court judge that his witnesses are credible, that enough of the recantations ring true and there may be reason to believe the other guy was the real killer, I think he’s got a shot at getting relief,” Kendall said. “If he can’t do that, he’s got no shot.”
Tom Dunn, one of Davis’ attorneys, said, “Although the burden we face is high, we are confident in Mr. Davis’ innocence and our evidence.”
Cornell University law professor John Blume said Monday’s decision could indicate the high court may be ready to set a new precedent.
“This could be an important first step toward the court’s recognition that it is unconstitutional to incarcerate or execute someone who is actually innocent,” Blume said. “People might be surprised by that, but the court has never recognized it.”
Scalia, who noted it had been almost 50 years since the high court took the action it took on Monday, made note that the court “has never held that the Constitution forbids the execution of a convicted defendant” who later convinced the courts he is “‘actually’ innocent.”
But Stevens responded by citing a dissent by Judge Rosemary Barkett of the federal appeals court in Atlanta, who in April said Davis’ new claims should be presented in open court. It “would be an atrocious violation of our Constitution and the principles upon which it is based” to execute an innocent person, Stevens wrote.
WHAT THE JUSTICES SAID
- Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg and Stephen Breyer: "The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing. ... Imagine a petitioner in Davis' situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man. The dissent's reasoning would allow such a petitioner to be put to death nonetheless."
- Justice Antonin Scalia, joined by Justice Clarence Thomas: "The court proceeds down this path even though every judicial and executive body that has examined petitioner's stale claim of innocence has been unpersuaded, and (to make matters worse) even though it would be impossible for the District Court to grant relief. ... Today, without explanation and without any meaningful guidance, this court sends the District Court for the Southern District of Georgia on a fool's errand."
Staff writer Larry Hartstein contributed to this article.