December 8, 2008
WGCL TV-Atlanta, GA
Troy Davis has already been spared from execution three times, and this week his lawyers hope to push his extraordinary case one more step toward his exoneration when they ask a federal panel to let them file another appeal of his death sentence.
As they have argued before, Davis' lawyers will tell the three-judge panel of the 11th Circuit Court of Appeals on Tuesday that their client was the victim of mistaken identity, and note that seven of nine key witnesses that testified against him in the 1991 trial have recanted their statements.
But the hearing likely won't focus entirely on whether Davis was rightly convicted of the 1989 murder of Savannah Police Officer Mark MacPhail. Instead it could turn on whether federal law allows the 40-year-old's attorneys to call for a new trial at all.
Davis' lawyers have struggled to convince a judge at any level to grant him another hearing on claims that he is innocent, partly because much of the evidence they say could lead to his exoneration was revealed after Davis was convicted. The hearing offers them a ripe opportunity to argue that federal laws allow them to pursue such a challenge at this late stage in the process.
In their briefs, Davis' attorneys argue that it is "constitutionally intolerable" to execute Davis without first hearing his innocence claims. They say they could only press the claim that Davis is innocent after they had attempted a range of other appeals.
"It's one of the arguments that can really only be brought after you've exhausted other state avenues of relief," said Jason Ewart, a Davis attorney. "For this claim to be cognizable, you have to show a convincing case of innocence. But one of the issues is whether or not we can bring this case. It's rather nebulous."
Attorneys representing the state say this type of appeal, called a stand-alone innocence claim, could have been made long before Davis' team filed a motion for a new trial in Savannah's Chatham County last year. And they say the courts reviewing the case have already ruled that Davis won't meet high legal standards for a new trial. The hearing will be the latest flashpoint in a case that has attracted widespread attention, sparked dozens of international protests and won Davis the support of former President Jimmy Carter and leading law-and-order advocates who say Davis deserves another day in court.
"Davis is not asking the court to set him free," former FBI Director William S. Sessions wrote in a recent column. "He is asking for the court's permission to give his innocence claims the full hearing they deserve. Our justice system should punish the guilty, free the innocent and have the wisdom to know the difference."
MacPhail was working off-duty as a security guard at a bus station when he rushed to help a homeless man who had been pistol-whipped at a nearby parking lot. The 27-year-old was shot twice when he approached Davis and two other men.
Witnesses identified Davis as the shooter in the 1991 trial, and prosecutors said he wore a "smirk" as he fired the gun. But Davis' lawyers have since argued that new evidence should exonerate their client. And they say three others who did not testify have said another man who testified against Davis at his trial confessed to the killing.
Prosecutors have long argued the case is closed. Savannah District Attorney Spencer Lawton also said he doubts the new testimony meets the legal standards for a new trial, and said the witness recantations invites "a suggestion of manipulation, making it very difficult to believe."
Davis execution was scheduled for July 2007, but it was postponed by Georgia's pardons board less than 24 hours before it was to be carried out. A divided Georgia Supreme Court twice rejected Davis' request for a new trial, and the pardons board turned down another bid for clemency after considering the case again.
As corrections officers prepared for Davis' scheduled Sept. 23 execution, the Supreme Court issued a stay to consider whether to grant him another hearing. A few weeks later, though, the court cleared the way for the execution when it decided against hearing the case.
With legal options dwindling just three days before a third scheduled execution date, Davis' attorneys convinced the 11th Circuit Court of Appeals in Atlanta to stay the execution again. Tuesday's hearing gives them one more chance to press their appeal.
As the case approaches the latest legal hurdle, the Davis and MacPhail families are in limbo.
Davis, who is being held in state prison, longs for another chance to prove he's innocent, said his sister Martina Correia.
"He's gone through a lot in the last year. Having three execution dates in a year is more than most people could bear," she said. "But he's staying faithful, and he's praying that the courts could give him some relief, that they will allow a jury to hear the evidence."
For the MacPhails, the hearing is another painful delay for a family seeking closure for 17 years.
"I don't even know what to expect any more. Every time we think, 'This is it,' something else comes up. I don't know what to expect anymore," said Anneliese MacPhail, the slain officer's 75-year-old mother. "My faith is going down rapidly. This should be over by now."