The condemned in Georgia always have a long and tortuous journey to the execution chamber. But the case of Troy Anthony Davis, whose execution is set for Wednesday, has been perhaps the most extraordinary and controversial legal odyssey in the state’s history.
It also has generated the most worldwide attention of any Georgia case. On Thursday, Davis’ supporters gave the state Board of Pardons and Paroles the names of 663,000 people asking Davis be spared execution. Advocates are using social media to rally support and organize protests around the world.
Davis’ case has taken one unexpected turn after another since he was sentenced to death 20 years ago for the murder of Savannah Police Officer Mark Allen MacPhail. On two occasions, the district attorney who put Davis on death row issued final statements believing nothing stood in the way of Davis’ execution, only to see the case reconsidered. On Monday, the parole board is scheduled to meet once again to determine whether Davis should live or die.
Even though Davis, 42, was condemned to die for killing a cop and prosecutors steadfastly stand behind his conviction, his innocence claims have attracted a host of dignitaries. Among them, former President Jimmy Carter, Pope Benedict XVI, former Georgia Supreme Court Chief Justice Norman Fletcher and former FBI Director William Sessions say Davis should be granted clemency.
“This case is extraordinary because there have been substantial questions of his innocence for almost a decade,” said death-penalty lawyer Stephen Bright, a professor at Yale Law School. “It has attracted attention from all around the world, and the extraordinary number of people supporting him — and the prominence of some of them — is unprecedented.”
This Wednesday marks the fourth time the state has set a date for Davis to be put to death by lethal injection.
In July 2007, the state parole board granted Davis a stay after he’d said final goodbyes to visitors. A year later, the U.S. Supreme Court stepped in less than two hours before he was to be placed on the gurney. Seven months after that, the federal appeals court halted another planned execution, leading to an almost-unprecedented U.S. Supreme Court order that granted Davis a new hearing that ultimately proved unsuccessful.
Anneliese MacPhail, the mother of the slain officer, said she is cautiously optimistic the execution will be carried out this week. “I want to get it over with,” she said. “I want to have some peace.”
After Davis’ new execution date was set, it appeared there was nowhere for him to turn because his appeals are exhausted. But the parole board quickly agreed to again consider Davis’ request for clemency. It set a hearing for Monday and did not say when it will issue its decision.
The parole board denied clemency to Davis three years ago, but the five-member board has three new members.
The board is expected to hear from witnesses who did not testify in its prior hearings. This includes a woman who has signed an affidavit saying she heard Sylvester “Redd” Coles, who was at the crime scene, say he was the real killer. Davis’ lawyers are also expected to submit sworn statements from at least three jurors who sentenced Davis to death, but who are now asking that Davis be spared execution.
“Because there is evidence that creates doubt about Mr. Davis’ involvement in the shooting, I do not think Mr. Davis should be executed,” juror Isaiah Middleton said in an affidavit signed Sept. 11.
Another juror, Brenda Forrest, said she felt comfortable with the guilty verdict at the trial. But if the information she knows now had been available then, she said in a Sept. 12 affidavit, “I would never have sentenced Mr. Davis to death and I no longer believe, beyond a reasonable doubt, that Mr. Davis was the shooter. I feel, emphatically, that Mr. Davis cannot be executed under these circumstances.”
Davis’ nephew, Antone Correia, said he believes the parole board will halt his uncle’s execution over concerns of his innocence. “My thoughts and prayers go out to the MacPhail family. They took a loss,” Correia said. “I hope they can see we are trying to get justice for both families.”
Anneliese MacPhail said she remains steadfast in her resolve that Davis should be executed. She also said she has no doubt Davis is her son’s killer.
Yet she said Davis’ execution will not give her closure. “There will always be a hole in my heart. It will give me peace that we don’t have to go to another court or see my son’s picture on TV.”
Two of her children plan to attend the execution, but MacPhail said she will not be there. “There is no satisfaction to see him die. I just want it over with.”
If put to death, Davis will be the 52nd man executed in Georgia since the U.S. Supreme Court reinstated capital punishment 35 years ago.
Officer MacPhail, a 27-year-old former Army Ranger with a wife and two young children, was moonlighting on a security job when he heard the wails of Larry Young, a homeless man being pistol-whipped in a Burger King parking lot about 1 a.m. on Aug. 19, 1989.
Davis was with Coles when he began demanding Young to give him a beer. When Young refused, Davis pulled out a handgun and began hitting Young with it, prosecutors said. When MacPhail arrived, Davis shot him, then stood over him and fired two more shots, prosecutors said. MacPhail never drew his weapon.
At trial, nine witnesses testified they saw Davis at the scene, saw him shoot MacPhail or were told by Davis he killed MacPhail. But since the trial, seven of those key witnesses have either recanted or backed off their testimony. The Atlanta Journal-Constitution, which interviewed a number of those witnesses, first reported the recantations in September 2003.
One of the two witnesses who has not changed his testimony is Stephen Sanders, who was in the Burger King when the shooting occurred. Sanders initially told police he could not recognize anyone at the scene. At trial, though, he identified Davis as the killer, testifying, “You don’t forget someone that stands over and shoots someone.” Attempts to reach Sanders last week were unsuccessful.
Coles, who knew Davis from the neighborhood and first implicated him to police, also has not changed his testimony. He told police that as he fled the scene after Young was attacked, MacPhail ran past him toward Davis, and that he then heard a gunshot. In recent years, however, Coles has told family members and friends that he actually killed MacPhail, those witnesses said in sworn statements filed by Davis’ legal team.
One of them, Quiana Glover of Savannah, said she was at a friend’s house in June 2009 and Coles was there drinking heavily. When told to slow down, Coles said he was the one who killed MacPhail, Glover said.
Glover was about to testify on Davis’ behalf in Savannah at the Supreme Court-ordered hearing in June 2010. But U.S. District Judge William T. Moore Jr. did not allow her testimony because Davis’ lawyers had not subpoenaed Coles to testify and respond to the allegations.
Nonetheless, Glover is expected to testify before the parole board Monday. Parole officials are also expected to interview Benjamin Gordon, now incarcerated for selling drugs.
At the 2010 hearing, Gordon testified he saw Coles shoot and kill MacPhail from a vantage point of about 100 feet away. Gordon testified he never came forward because he feared what Coles might do to him and his family in retaliation.
In his 172-page ruling, Moore said he did not believe Gordon because he had given several evolving statements, changing them to give whatever details “he believes are necessary to secure Mr. Davis’ release.” Even so, Gordon did not buckle during a lengthy cross-examination at the hearing by a state attorney, saying, “This is the truth.”
Moore also discredited six of the seven key state witnesses who changed their testimony since the 1991 trial. As for those who said Coles told them he was the killer, Moore said those confessions were “not meaningless.” He speculated Coles may have said it to enhance his reputation as a dangerous individual.
Moore had been tasked by the U.S. Supreme Court to determine whether Davis could clearly establish his innocence, but he found Davis had not cleared that difficult legal threshold. While the state’s case “may not be ironclad,” he wrote, “most reasonable jurors would again vote to convict Mr. Davis.”
Davis’ lawyers, in their clemency petition filed last week, strongly disagreed, saying they believe their client is innocent of MacPhail’s murder.
“At a minimum, the evidence creates too much doubt of Mr. Davis’s guilt to permit a conscionable execution,” they said. “Reasonable people of good faith should conclude that executing Mr. Davis under these circumstances would constitute a fundamental, tragic and irreversible miscarriage of justice.”
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What’s next
The Board of Pardons and Paroles has the sole authority in Georgia to grant clemency to inmates. It may deny clemency or commute a death sentence to life in prison with parole or to life without parole. The board’s five members, appointed by the governor, hold clemency proceedings behind closed doors. It first hears from a condemned inmate’s legal team and then from prosecutors.
On Monday, the board will consider, for the second time, a clemency request from Davis and then decide his fate by a vote. The board members, with their dates of appointment, are:
-- Gale Buckner (January 2005), a former GBI agent
-- Bob Keller (January 2007), a former Clayton County district attorney
-- James Donald (January 2009), former commissioner of the Department of Corrections
-- Albert Murray (May 2010), former commissioner of the Department of Juvenile Justice
-- Terry Barnard (May 2010), former state Representative
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Carter speaks out against Davis execution
Former President Jimmy Carter has added his voice to those asking that Troy Davis not be executed.
“Incarcerate him for life, if necessary,” Carter told The Atlanta Journal-Constitution on Friday. “There’s real doubt in my mind and the minds of many in the judiciary ... that’s he’s guilty.
“The [U.S.] Supreme Court called for a stay in his execution, so there’s real doubt. When there’s doubtful evidence about whether someone’s guilty, they certainly shouldn’t be executed. A life sentence, obviously, would be my preference.”
Meanwhile, the French Ministry of Foreign and European Affairs released a statement Friday expressing the country’s concern over the case and urging “a universal moratorium as a first step toward the definitive abolition of the death penalty.”
- Mark Davis
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