Troy Davis

For the Canadian Football League running back, see Troy Davis.

Troy Anthony Davis
Criminal status	Incarcerated on death row at Georgia Diagnostic and Classification State Prison
Conviction(s)	Murder with aggravating factor
Criminal penalty	Death

Troy Anthony Davis (born October 9, 1968) has been on death row in the U.S. state of Georgia since 1991 for the August 19, 1989 murder of off-duty Savannah, Georgia, police officer Mark MacPhail.

Throughout the trial and subsequent appeals, Davis maintained his innocence, claiming he was wrongfully convicted of the crime as a result of false identification.

Since the trial and first set of appeals, seven of the nine prosecution eyewitnesses who had linked Davis to the killing have unofficially recanted or contradicted part of their original trial testimony, claiming police coercion and questionable interrogation tactics, but none have made a formal recantation as required by law. The witness who first implicated Davis and has remained consistent, Sylvester "Redd" Coles, was initially a suspect in the crime. Coles was seen acting suspiciously the night of MacPhail's murder. One person has claimed that Coles boasted at a party that he killed an off-duty police officer. One witness did not recant his testimony and is not himself a suspect in the murder; he made an in-court identification of Davis at the original trial.

Advocates of Davis's guilt say Coles came back to the scene of the shooting with a female after police arrived. Davis changed clothes (even asking Coles for a shirt later) and fled to Atlanta with his sister.

Davis has repeatedly caused pardoning and parole authorities to examine claimed exculpatory evidence arising post-trial. Davis was given an opportunity to present new evidence at a hearing in federal court in Savannah in June 2010, but he put on only a paucity of testimony. He did not take the stand in his defense, and not call Sylvester Coles as a witness. He also did not call some of the other witnesses who had given affidavits on his behalf, even though some of them were present in the courthouse. Savannah journalist Patrick Rodgers characterized the spartan hearing as a defeat for Davis, commenting, "Although the defense team had been arguing for a hearing like this since they took over the case, if the atmosphere ... was any implication, they seemed to be wishing they could have a second chance."

In October 2008, Davis filed a second Habeas petition in the 11th Circuit Court of Appeals on the grounds that it was the first time Davis was presenting a free-standing innocence claim and that no court has yet held an evidentiary hearing on the exculpatory evidence of recanted testimony.

On 16 April 2009 the three-judge panel denied Davis' petition on procedural grounds by a 2–1 majority.

Amnesty International, an abolitionist organization, has taken up Davis's cause, although Amnesty International is officially neutral as to whether Davis is guilty or innocent. The advocacy group strongly condemned U.S. courts that refused to formally examine Davis's claimed exculpatory evidence, and has organized rallies and letter-writing campaigns to persuade the Georgia and Federal courts to grant Davis a new trial or an evidentiary hearing. Many prominent politicians and leaders, including former Georgia Governor and President Jimmy Carter, Pope Benedict XVI, Nobel laureate Archbishop Desmond Tutu, Presidential candidate Bob Barr, and former FBI Director and judge William S. Sessions have called upon the courts to grant Davis a new trial or evidentiary hearing.

On 17 August 2009, the U.S. Supreme Court, over the dissenting votes of two justices, ordered a federal district court in Georgia to consider and rule on whether new evidence "that could not have been obtained at the time of trial clearly establishes [Davis'] innocence."

Early life

Troy Davis was born the eldest child of Korean War veteran Joseph Davis and hospital worker Virginia Davis. The couple were divorced when Davis was a young. He grew up with four siblings in the predominantly black middleclass neighborhood of Cloverdale, Savannah. He attended Windsor Forest High School but then dropped out in his junior year in order to drive his disabled younger sister to her rehabilitation. Davis obtained his high-school equivalency diploma from Richard Arnold Education Center in 1987. One teacher described him as a "dumb kid and a worse student", while another remembered him as quiet, friendly, and well-mannered. She noted that he attended school regularly but seemed to lack discipline. Davis's nickname was "Rah," or "Rough as Hell", but neighbors reported that it did not reflect his behavior, describing him as a "straight up fella" who acted as a big brother to local children. In contrast, in July 1988, Davis pleaded guilty to carrying a concealed weapon; he was fined $250 as part of a plea agreement in which a charge of possession of a gun with altered serial numbers was dropped.

Davis began work a drill technician at a plant manufacturing gate arms for railroad crossing gates in August 1988. His boss reported that Davis was likable and a good worker who appeared to have positive life goals. However, his job attendance was poor, and by Christmas 1988 he had ceased attending work at all. Davis returned to the job twice in the following months, but neither time remained for long.

The shooting of Officer MacPhail

On August 19, 1989, Mark MacPhail, an off-duty policeman, was working as a security guard at a Burger King restaurant in Savannah, Georgia. In the early morning, while seeking to help a homeless man, Larry Young, who was being attacked in a nearby parking lot was shot twice, once through the heart and once in the face. He had not drawn his pistol, and no murder weapon was recovered.

About an hour prior to MacPhail's murder, two shootings occurred outside a pool party, in one which a 20 year-old man, Michael Cooper, was shot in the face. The day after the shooting, a spent shell from a .38 caliber revolver was discovered near the scene of the murder. The shell was similar to shell casings recovered near a shooting that occurred earlier that evening at a pool party, at which both Davis and Coles were present, not far from where MacPhail was killed. In that shooting, a man named Michael Cooper was shot.

After the shooting Davis fled to an Atlanta suburb. The Savannah police, suspecting Davis and seeking a murder weapon, converged on the home that Davis shared with his family in the early morning of August 20, 1989. After having sealed off the area, Davis' home was searched, and a pair of shorts belonging to Davis and found in a dryer were confiscated. A five day manhunt followed, in which police issued a reward for information leading to his arrest. Davis's family began negotiating with police, motivated by concerns about his safety since local drug dealers had made death threats against Davis, upset that the police dragnet looking for Davis had interrupted their business. In addition, police were able to use the information that one of Davis' sisters had wired money to someone in Atlanta. On August 23, 1989, Davis was driven back to Savannah by members of his family, where he surrendered to police, and he was charged with MacPhail's murder.

The trial and conviction

On November 15, 1989, a grand jury indicted Davis with murder and related changes that included assaulting Larry Young with a pistol and shooting Michael Cooper in the face, obstructing MacPhail in performance of his duty and possession of a firearm during the commission of a crime. Davis pleaded not guilty in April 1990. A judge's ruling in November 1990 barred evidence from Davis' shorts resulting from the police search of his mother's home because she did "not freely and voluntarily grant the police the right to search her home". She had testified that police officers had threatened to break down her door unless she let them inside. The Georgia Supreme Court upheld the exclusion of the evidence in May 1991, saying police should have obtained a search warrant.

At the trial held in August 1991, the District Attorney sought the death penalty. According to the prosecution case, Davis shot Michael Cooper, met up with Sylvester "Red" Coles at a pool hall, pistol-whipped the homeless man Larry Young, and then killed Mark MacPhail. Trial witnesses Hariette Murray, Sylvester Coles and Antoine Williams testified that Davis, wearing a white shirt, had struck Young and then shot MacPhail. On cross-examination, Coles admitted that he also had carried a .38 pistol, but that he had given it to another man earlier that night. Kevin McQueen, a former fellow prisoner of Davis', testified that Davis had confessed to shooting MacPhail as he feared that that the officer would connect him to the shooting of Michael Cooper earlier in the evening. Davis testified at trial and denied that he was involved in the shooting of Cooper or MacPhail. A ballistics expert testified that the .38 calibre bullet that killed MacPhail could possibly have been fired from the same gun that wounded Michael Cooper in the pool party.

Davis' mother testified that Davis was at their Cloverdale home the entire day of August 19, 1989, until he left for Atlanta with his sister about 9 p.m. Davis took the stand and on direct examination, Davis's lawyer asked Davis if he had shot Officer MacPhail. Davis denied shooting him, saying that he had observed Sylvester Coles striking Larry Young after a quarrel about beer, and that he had fled before shots were fired. He also denied shooting Michael Cooper. Davis said on the stand that he didn't know who had killed MacPhail.

On August 28, 1991, based upon the testimony of eyewitnesses who had linked Davis to the shooting of MacPhail, the jury – including seven blacks and five whites – took under two hours to find Davis guilty on one count of murder and other offenses.

In the sentencing phase of the trial, MacPhail's family members and close friends were not allowed to testify, despite a recent Supreme Court decision that paved the way for victim-impact statements. (The Court left it to individual states to implement and Georgia had not yet approved victim-impact statements in capital cases.) Davis and three of his family members testified during the sentencing phase. In his final address to the jury, Davis pleaded, "Spare my life. Just give me a second chance. That's all I ask." He told jurors he was convicted for "offenses I didn't commit." The jury found that MacPhail's "murder was outrageously or wantonly vile, horrible or inhuman, in that it involved depravity of mind or aggravated battery to the victim prior to his death." On August 30, 1991, the jury sentenced Troy Davis to death.

First set of appeals

Georgia Supreme Court's First Denial of Appeal

The first set of appeals focused almost exclusively on jury selection issues. The jury in the trial was composed of seven blacks and five whites. The racial bias claim raised by Davis' lawyers was dismissed because the county in which the trial took place was about two-thirds white (and the jury pool was about 57% white) while the seated jury was 58% black. His conviction and death sentence were affirmed by the Supreme Court of Georgia in 1993.

Denial of state habeas petitions

Davis, like many indigent death row inmates, was represented during his state habeas proceedings by the Georgia Resource Center. Just as the Resource Center's lawyers were preparing Davis' appeal, Congress eliminated $20 million in funding to post-conviction defender organizations like the Georgia center, which lost 70% of its budget. Six of the center's eight lawyers left, as well as three of its four investigators, and Davis' case became one of about 80 that Beth Wells, then executive director, had to handle.

"The work conducted on Mr. Davis' case was akin to triage," Wells wrote in an affidavit, "where we were simply trying to avert total disaster rather than provide any kind of active or effective representation... There were numerous witnesses that we knew should have been interviewed, but lacked the resources to do so."

As a direct result, the vast majority of the recantations and other new evidence of Davis’ innocence went undiscovered and unheard as Davis’ appeals proceeded through state courts. In addition, Davis encountered restrictions on the scope of his ability to attack the conviction, due to limitations introduced by the 1996 Antiterrorism and Effective Death Penalty Act. Consequently, on September 9, 1997, the state court denied Davis' state habeas corpus relief. Following briefing and oral argument, the Georgia Supreme Court affirmed the denial of state habeas corpus relief on November 13, 2000.

Recantation of witnesses and new exculpatory evidence

In 2001, Davis submitted twenty-one exculpatory affidavits to a federal court in Georgia. These affidavits contained recantations from all but two of the prosecution eyewitnesses, the testimony of another previously undiscovered eyewitness and others with information bearing on the crime. All the witnesses stated in their affidavits that their earlier statements implicating him had been coerced by strongarm police tactics.

One of the key prosecution witnesses, Dorothy Ferrel, recanted her testimony, stating in her affidavit that she was on parole when she testified, and was afraid that she'd be sent back to prison if she didn't agree to finger Davis. In her affidavit, she wrote: "I told the detective that Troy Davis was the shooter, even though the truth was that I didn't know who shot the officer."

Another witness, Darrell Collins, a teenager at the time of the murder, said in a sworn affidavit that the police had scared him into falsely testifying by threatening to charge him as an accessory to the crime: "[The police] were telling me that I was an accessory to murder and that I would ... go to jail for a long time and I would be lucky if I ever got out, especially because a police officer got killed ... I was only 16 and was so scared of going to jail."

At least three witnesses who testified against Davis have since said that Sylvester "Redd" Coles admitted that he was the one who had killed the officer. Additionally, five new witnesses implicated Coles, not Davis, in the murder of MacPhail.

The only eyewitness, aside from Coles, who did not recant his testimony is Steve Sanders, whose in-court identification occurred two years after the crime. Sanders’ police statement on the night of the shooting stated that he would not “recognize the shooter.”

In response to Davis' petition, prosecutors Spencer Lawton and David Lock argued that under Georgia law it was too late to present the recantations as evidence in an extraordinary motion for new trial, and, in addition, claimed that the "submitted affidavits are insufficient to raise doubts as to the constitutionality of the result at trial."

Brenda Forrest, who was a juror at the trial, has said:

If I knew then what I know now, Troy Davis would not be on Death Row. The verdict would be "not guilty."

11th Circuit's denial of Habeas petition

Citing procedural bars, the federal district court declined to consider any evidence of Davis’ actual innocence and rejected the habeas petition.

Davis appealed to the 11th Circuit Court which heard oral argument in the case on September 7, 2005. Davis argued that since seven of the nine eyewitnesses recanted their testimony and voluntarily filed sworn affidavits stating they lied in the original trial, he is entitled to a retrial based on his actual innocence claim. Davis' lead lawyer, Kathleen Behan, also argued that there were multiple constitutional violations in the original trial, including failure to disclose Giglio materials (referring to State promises made to Dorothy Ferrell, a key witness for the State, in exchange for her testimony) and a Brady violation (referring to the State's failure to give Davis' lawyers exculpatory evidence).

On September 26, 2006, the 11th Circuit affirmed the denial of federal habeas corpus relief, claiming that all his innocence claims are "procedurally defaulted." Judges Dubina, Barkett and Marcus ruled that Davis had not borne his burden to establish a viable claim that his trial was constitutionally unfair. According to legal experts, a major obstacle to granting Davis a new trial was the Antiterrorism and Effective Death Penalty Act of 1996 whose major provisions reduced new trials for convicted criminals and sped up their sentences by restricting a federal court's ability to judge whether a state court had correctly interpreted the U.S. Constitution. Legal authorities have criticized the restricting effect of the 1996 Act on the ability of wrongfully convicted persons to prove their innocence.

On June 25, 2007, Davis' first Certiorari petition to the US Supreme Court was denied.

Former FBI Director's call for a new trial

In July 2007, William S. Sessions, former FBI Director and federal judge, published an opinion piece in the Atlanta Journal Constitution calling on authorities to halt the execution process until Davis is given a new trial, or alternatively, grant him clemency. Sessions wrote:

There is no more serious violent crime than the murder of an off-duty police officer who was putting his life on the line to protect innocent bystanders. That being said, we must be convinced that the right person has been convicted. Serious questions have been raised about Davis' guilt...It would be intolerable to execute an innocent man.

Judge Sessions identified himself as a supporter of the death penalty. But, he argued, the judicial system is fallible, and the procedural rules can be too restrictive and can prevent the courts from dispensing justice. They can stop the courts from hearing even claims of innocence, such as in Davis' case. He condemned the kinds of procedural barriers that prevented the courts from addressing the merits of Davis' case, and recommended that they be eliminated. He added that it is intolerable that as a result of these procedural obstacles, no court has examined the claims Davis' current legal team has raised.

Board of Pardons' stay of execution

Despite Judge Sessions' call for a new trial and similar pleas by Amnesty International, Davis' execution was scheduled for July 17, 2007. On July 16, however, the Georgia State Board of Pardons and Paroles granted a ninety-day stay of execution. Before the Board of Pardons made a final decision, though, the Supreme Court of Georgia agreed to hear Davis' discretionary appeal from his Extraordinary Motion for a New Trial.

The Georgia Supreme Court's 4–3 decision denying Davis' appeal

On August 3, 2007, the Georgia Supreme Court granted Davis’ application for discretionary appeal from the denial of his Extraordinary Motion for a New Trial. It was the first time Davis' case reached the Georgia Supreme Court since the recantation of witnesses and the discovery of new exculpatory evidence. On March 17, 2008, the Georgia Supreme Court denied the appeal by a 4–3 majority. The majority wrote, "These affidavits lack the type of materiality required tosupport an extraordinary motion for new trial, as they do not show the witnesses’ trial testimony to have been the “purest fabrication.”"

The Supreme Court of Georgia concluded as follows:

Particularly in this death penalty case where a man might soon be executed, we have endeavored to look beyond bare legal principles that might otherwise be controlling to the core question of whether a jury presented with Davis’s allegedly-new testimony would probably find him not guilty or give him a sentence other than death. In that spirit, we have chosen to focus primarily on one of the required showings for an extraordinary motion for new trial, the requirement that the new evidence be “so material that it would probably produce a different verdict.” In weighing this new evidence, we do not ignore the testimony presented at trial, and, in fact, we favor that original testimony over the new. At least one original witness has never recanted his in-court identification of Davis as the shooter, which included a description of his clothing and the location he was in when he struck Larry Young. As we have noted above, most of the witnesses to the crime who have allegedly recanted have merely stated that they now do not feel able to identify the shooter. At trial, the jury had the benefit of hearing from witnesses and investigators close to the time of the murder, including both Davis and Coles claiming the other was guilty. We simply cannot disregard the jury’s verdict in this case.

Three justices, including Chief Justice Leah Ward Sears, dissented, and they concluded that the new evidence pointing to "actual innocence" justifies a new hearing. Chief Justice Ward wrote:

In this case, nearly every witness who identified Davis as the shooter at trial has now disclaimed his or her ability to do so reliably. Three persons have stated that Sylvester Coles confessed to being the shooter. Two witnesses have stated that Sylvester Coles, contrary to his trial testimony, possessed a handgun immediately after the murder. Another witness has provided a description of the crimes that might indicate that Sylvester Coles was the shooter...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.

Accordingly, the dissent contended that the new, exculpatory evidence is sufficient to justify, at the very least, an order to the trial court to conduct a hearing and weigh the credibility of Davis’s new evidence. This procedure would have given the trial court the opportunity to exercise its discretion in determining if the new evidence creates the probability of a different outcome if a new trial were held.

Certiorari Petition to US Supreme Court

On July 14, 2008, Davis' lawyers filed a petition for a writ of certiorari in the US Supreme Court, appealing from the Georgia Supreme Court's 4–3 decision, asking the Court to overrule the Georgia Supreme Court's majority decision and determine that the Eighth Amendment creates a substantive right of the innocent not to be executed. If such a right exists, the lawyers argued, then the Georgia Supreme Court's failure to grant an evidentiary hearing to review the cumulative substance and credibility of Davis’ new innocence evidence violates the Constitution – both the Eighth Amendment and the Due Process Clause.

The Innocence Project's arguments for a new trial

The Innocence Project, a non-profit organization dedicated to exonerating wrongfully convicted people, filed an amicus curiae brief, strongly condemning the Georgia Supreme Court's majority opinion and supporting Davis's request for a new trial. The Cardozo Law School-affiliated non-profit argued that constitutional principles and fundamental standards of criminal law require the courts to grant Davis a new trial or, at the very least, an evidentiary hearing to weigh the new exculpatory evidence.

The Innocence Project made the following arguments:

• A sharply-divided Georgia Supreme Court created a rule of law authorizing categorical denial of due process for innocent Georgians convicted on the word of perjurers.
• The impossibly high "Purest Fabrication" standard set by the four-justice majority would have failed to protect at least three known innocent death row inmates who were convicted based on perjured testimony.
• The majority’s blind adherence to this new standard and its failure to apply today’s science to the undisputed facts is further proof of the standard's failure.
• The four-justice majority ignored recent scientific studies establishing that the undisputed viewing conditions and circumstances of this crime precluded a genuine basis for subsequent recognition.
• The majority did not consider the scientifically supported probability that witnesses selected the police suspect during a suggestive identification process, which created an ideal situation for memory source error and false identifications.

Supreme Court's denial of Certiorari

The US Supreme Court was scheduled to discuss in an internal conference on September 29 whether to take up the case of Troy Davis. Nevertheless, Georgia's state attorneys scheduled an execution date for September 23, 2008 at 7 pm, intending to carry out the execution before the United States Supreme Court had the opportunity to take up Davis' case the following week. Ignoring calls from to halt the execution until the Supreme Court made a decision, Chatham County District Attorney Spencer Lawton ordered that Davis be taken to the death chamber and executed, despite his pending appeal. Only a last-minute emergency stay, issued by the Supreme Court less than two hours before he was scheduled to be put to death, prevented the execution. Georgia Attorney General Thurbert Baker and Deputy Attorney General Susan Boleyn filed a brief with the Supreme Court asking the Supreme Court not to take the case for review, and objecting to the grant of Certiorari.

On October 14, 2008, the Supreme Court issued a decision declining to hear Davis's petition, meaning the requisite four votes needed to grant certiorari did not exist. Emboldened by the Supreme Court's rejection of Davis's petition, District Attorney Lawton set a new execution date for October 27, 2008.

Pleas for New Trial or Clemency by International Leaders, Congressmen, NGOs

European Parliament's resolution

Representatives from the Council of Europe and European Parliament spoke out on Davis' case, asking U.S. authorities to halt the planned execution and calling for a new trial.

In a resolution adopted on July 10, 2008, the European Parliament appealed to the State of Georgia and the relevant U.S. courts to grant Davis a retrial. Referencing the relevant UN General Assembly resolutions, the resolution stated:

The European Parliament...

1. Calls upon those countries where the death penalty is imposed to take the necessary steps towards its abolition;

2. Asks that Troy Davis' death sentence be commuted and, in view of the abundant evidence which might lead to such commutation, for the relevant courts to grant him a retrial;

3. Appeals urgently to the Georgia State Board of Pardons and Paroles to commute Troy Davis' death sentence;

4. Calls on the Presidency of the Council and the Delegation of the Commission to the United States to raise the issue as a matter of urgency with the US authorities;

5. Instructs its President to forward this resolution to the Council, the Commission, the Government of the United States, the Georgia State Board of Pardons and Paroles, and the Attorney General of Georgia.

Calls for new trial by Archbishop Tutu, Pope Benedict, U.S. Congressmen

Amnesty International published a report about Davis' case characterizing it as a miscarriage of justice and a "catastrophic flaw in the U.S. death penalty machine." Amnesty initiated a letter-writing campaign and organized rallies worldwide. More than 4,000 people sent letters to the Board of Pardons and Paroles asking to grant clemency to Troy Davis. Nobel Peace Prize winner Archbishop Desmond Tutu urged the Board to demonstrate their commitment to fairness and justice, stating "It is shocking that in over 12 years of appeals, no court has agreed to hear evidence of police coercion, or consider the recanted testimony."

The Vatican's nuncio to the U.S., Monsignor Martin Krebs, sent a letter on behalf of Pope Benedict XVI to Governor of Georgia Sonny Perdue urging him to spare Davis' life. Perdue claimed he passed all the letters to the Board, since Georgia is one of three U.S. states where the governor has no power to grant clemency, and the power to pardon rests solely with the State Board of Pardons and Paroles (though the governor retains political influence by virtue of his authority to appoint the Board members).

Several Congressmen also spoke out on behalf of Davis, requesting the courts grant Davis a new trial. On July 16, U.S. Congressman John Lewis spoke to the Georgia State Board of Pardons and Paroles, suggesting that Coles—one of the two eyewitnesses who had not recanted—was the real killer. In addition, U.S Representatives Jesse Jackson, Jr. and Sheila Jackson Lee, actor Mike Farrell, former Texas District Attorney Sam D. Millsap, Jr., and the organization Murder Victims Families for Reconciliation led a worldwide call for clemency to Davis.

Harry Belafonte implored the Board to use their power to grant clemency to ensure that "Troy has one final chance of a fair hearing in federal court, one that will properly review all evidence, both old and new, and properly question the reliability of the witness testimony used against him at trial.". Another supporter of clemency was Sister Helen Prejean, author of Dead Man Walking, who issued a similarly-worded plea to halt the execution and grant Davis a new trial.

In addition, former Republican Congressman and presidential candidate Bob Barr wrote the Georgia Board saying that he is "a strong believer in the death penalty as an appropriate and just punishment," but that the proper level of fairness and accuracy required for the ultimate punishment has not been met in Davis' case. Subsequently, Reverend Al Sharpton also called for clemency after he met and prayed with Davis on death row.

On September 22, 2008, attorney Carol Gray, who assisted the Troy Davis defense team, issued a press release calling on authorities to halt the execution until information can be obtained from a clerk at the motel across from the murder scene. Gray said that the clerk was heard screaming after shots were fired, but the clerk has so far not been identified or interviewed by either side. According to Gray, such identification could be made through existing tax records.

Board of Pardons and Paroles' denial of clemency bid

Despite the outpouring of support and the international attention to the case, on September 12, 2008, the State Board of Pardons and Paroles rejected Davis' clemency request. Board members Milton Nix, Garland Hunt, Gale Buckner, Robert Keller and Garfield Hammonds did not provide any reason for their decision.

Pleas by Amnesty International, President Carter and National Lawyers Guild

In response to the State Board's rejection of the clemency request, Amnesty International condemned "in the strongest possible terms" the decision to deny clemency, and called it "a baffling and unbelievable perversion of justice." Larry Cox, executive director for Amnesty International USA, added: "The U.S. Supreme Court must intervene immediately and unequivocally to prevent this perversion of justice." Amnesty International states on its web site, "Amnesty International does not know if Troy Davis is guilty or innocent of the crime for which he is facing execution. As an abolitionist organization, it opposes his death sentence either way."

Former President (and Georgia Governor) Jimmy Carter released a public letter urging the State Board to reverse its decision. In his letter, Carter stated: "This case illustrates the deep flaws in the application of the death penalty in this country. Executing Troy Davis without a real examination of potentially exonerating evidence risks taking the life of an innocent man and would be a grave miscarriage of justice."

In addition, the National Lawyers Guild joined the call to halt the execution process until Davis is given a hearing to weigh the exonerating evidence.

Davis' second habeas petition

On October 23, 2008, Davis' lawyers launched a second habeas petition, based on the new exculpatory affidavits that hitherto had not been examined in a court of law. In their court filing, attorneys argued that the new exculpatory evidence proves Davis is innocent, and therefore his execution would violate the Eighth and Fourteenth Amendments of the US Constitution. Davis' lawyers added, "Mr. Davis’ execution in light of new evidence concerning his innocence is constitutionally intolerable. Society recoils at state execution of an innocent person."

Davis' lawyers requested an emergency stay of the pending execution, and on October 24, the 11th Circuit Court of Appeals issued a stay of execution to consider the newly-filed federal habeas petition. "Upon our thorough review of the record, we conclude that Davis has met the burden for a stay of execution," the court said in an order issued by Judges.

On November 19, 2008, the 11th Circuit ordered the parties to submit briefs. Chatham County prosecutors filed objections to Davis' federal habeas petition, asking the 11th Circuit to deny Davis' petition, and prevent Davis from having an evidentiary hearing to weigh the new, potentially exonerating evidence.

On December 9, in an overfilled courtroom in Atlanta, the three-judge panel (Judges Joel Fredrick Dubina, Rosemary Barkett, and Stanley Marcus) heard oral arguments in the Habeas petition. Davis' lawyers – Arnold & Porter lawyer Jason Ewart and attorney Tom Dunn – argued that the constitution forbids the execution of Davis without a proper judicial examination of the innocence evidence. Attorney Susan Boleyn from the Georgia Attorney General's office argued against granting Davis a new evidentiary hearing.

During oral arguments, Judge Barkett criticized the prosecution for objecting to a hearing that can determine the credibility of the new exculpatory evidence, saying: "As bad as it would be to execute an innocent man, it’s also possible the real guilty person who shot Officer MacPhail is not being prosecuted.” The judges will render their decision at a later date.

11th Circuit's 2–1 decision denying second Habeas petition

On 16 April 2009 the three-judge panel denied Davis's "Application for Leave to File a Second or Successive Habeas Corpus Petition" by a 2–1 majority. Judges Joel Dubina and Stanley Marcus wrote that they were rejecting the petition based on Davis' claims having been exhaustively reviewed by Georgia courts and the Georgia Board of Pardons and Paroles, who have all rejected them. “Davis has not presented us with a showing of innocence so compelling that we would be obligated to act today,” they wrote. They also cited procedural rules. The two judges focused on two procedural requirements contained in 28 U.S.C. §2244(b)(2)(A)–(B) (2006), also known as AEDPA, which must be met in order to consider his innocence claim. According to the court's interpretation, Davis failed to meet either of these procedural requirements. Based on these "gatekeeping requirements," the judges rejected the petition, thus denying Davis the opportunity to bring his innocence claim to a court of law.

The Court characterized the recanted testimony with regard to Davis's claimed innocence as follows:

• "All told, the testimony by Murray and Sanders [incriminating Davis] remains;
• the two other eyewitnesses do not now implicate anyone, much less Coles;
• Coles continues to implicate Davis; and
• the testimony of Larry Young and Valerie Coles still collides with Davis’s.

When we view all of this evidence as a whole, we cannot honestly say that Davis can establish by clear and convincing evidence that a jury would not have found him guilty of Officer MacPhail’s murder."

Judge Rosemary Barkett, the dissenting judge, responded to the majority's procedural concerns, writing, "The majority takes the position that we cannot permit Davis to bring his evidence before the district court because our discretion to do so is constrained by AEDPA. But AEDPA cannot possibly be applied when to do so would offend the Constitution and the fundamental concept of justice that an innocent man should not be executed.

The 11th Circuit issued an order extending the stay of execution for 30 days to allow Davis the opportunity to file a habeas corpus petition with the U.S. Supreme Court. Davis filed a petition for habeas corpus with the U.S. Supreme Court on May 19, 2009.

U.S. Supreme Court Order

On August 17, 2009, the Supreme Court, over two Justices’ dissents, ordered a federal district court in Georgia to consider and rule on Davis' claim of innocence. The Court order directed the District Court to “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis'] innocence.” (The case was "In re Davis", 08-1443.) This was a highly unusual action, because original writs of habeas corpus filed in the Supreme Court are very rarely granted; the Court had not granted one of these in "nearly 50 years."

The vote of the Supreme Court was not published, but some justices released opinions: Justice Scalia wrote a dissenting opinion joined by Justice Thomas, and Justice Stevens wrote a separate opinion in response, joined by Justices Ginsburg and Breyer. Justice Sotomayor did not take part in the consideration of the case.

June 2010 hearing

State officials opposing Davis' attempts to obtain habeas relief in federal district court have suggested that Davis' attorneys may have engaged in witness tampering by intimidating the witnesses from the original trial.

The hearing was held June 23–24, 2010. Davis did not take the stand in his own defense, nor did he call Sylvester Coles to the stand. Testimony by two witnesses that Coles told them he killed MacPhail was barred as hearsay. Judge William T. Moore, Jr., asked Davis’s lawyers why they hadn’t subpoenaed Coles; according to an account by journalist Patrick Rodgers, Moore "told them that if they had done so, he might have been more willing to accept the stories from their other witnesses." Benjamin Gordon, a relative of Coles, said that he saw Coles shoot and kill MacPhail. It was the first time there had ever been any eyewitness other than Davis himself to claim that Coles was the shooter. However, in three affidavits Gordon produced before the hearing, he never claimed to be able to identify the shooter. In his most recent affidavit in 2008, which the 11th Circuit U.S. Court of appeals found was "murky," he claimed he saw the shots fired at MacPhail but did not see the shooter. The June 2010 hearing was the first time Gordon claimed to have been able to identify the shooter. In refuting Gordon's testimony, a police officer testified that it would have been impossible for him to see the murder from where he claimed he was located.

University of Georgia law professor Donald E. Wilkes, Jr., an expert on death penalty appeals, says the failure of Davis to put Coles on the stand "may very well be fatal" to the effort to free him. "I've never heard of anybody in a post-conviction case committing such egregious, damaging blunders," Wilkes said of Davis's legal team.

Lawyers for Davis asked to reopen the hearing, but on August 12, 2010, Judge Moore issued an order that he would not do so, saying Davis's side was "attempting ... to create an incomplete and deceptive record, perverting the purpose of the [evidentiary] rule."

Family statements

Davis' sister, Martina Correia, has been actively campaigning on his behalf. She has attended all of Davis' court hearings, often sitting in the same room with relatives of MacPhail. After the December 9, 2008 hearing in the 11th Circuit Court, she addressed the concerns of the MacPhail family:

This is not family against family. We have no ill will against the MacPhail family. When justice is found for Troy, there will be justice for Officer MacPhail."

In an interview with Savannah TV station WTOC-TV, Mark aJr. says of his father, "He gave his life for the community and now I'm trying to help out his name and help him in some way." Of the appeals process, he says, "The past two years we've had countless appeals and it just keeps on getting drug out." Of Davis, MacPhail says, "He decided to break the law. And our law says, you kill an officer of the law, who tries to uphold it, you must be punished."

MacPhail's widow, Joan, has remarked about the successive appeals of Davis:

It's like another punch in the stomach. You have to relive that night over and over. That's so wrong. Why shouldn't we have peace in our lives?

District Attorney Statement

Chatham County District Attorney Spencer Lawton, who prosecuted the Davis case, explained his views on the case in an article published in the Savannah Morning News in June 2009. Lawton maintained his stance that Davis is guilty, arguing several points. Lawton cited ballistic evidence as proof of Davis' guilt, refuted the claims that Coles was the murderer, and argued that the recantations were invalid or coerced. Finally, Lawton addressed the issue of the newly discovered evidence never being examined in court; Lawton pointed out that the evidence, "had already been reviewed by 29 judges in seven different types of review, over the course of 17 years," before the U.S. Supreme Court declined to hear the case.

External links

U.S. Supreme Court

• Troy Anthony Davis v. Georgia, No. 08-66 (petition for writ of certiorari), docket
• In re Troy Anthony Davis, No. 08-1443 (petition for writ of habeus corpus), docket
• In re Troy Anthony Davis, No. 08-1443, Order of the Court and concurring opinion by Justice Stevens, August 17, 2009
• In re Troy Anthony Davis, No. 08-1443, Dissenting opinion by Justice Scalia, August 17, 2009