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Troy Davis Denied Clemency, Is Set To Die On Wednesday September 21, 2011, And US Supreme Court Justices Scalia and Thomas Approve of Executing The innocent
Troy Davis has run out of appeals. Davis was denied clemency this morning by the Georgia Board of Pardons and Paroles, the only authority in the state that can commute a death sentence, and is set to be executed Wednesday night at the state prison in Jackson.
          
   U.S. Supreme Court Judge Antonin Scalia   
Troy Davis Denied Clemency; Death Tomorrow
By COLLEEN CURRY and STEVE OSUNSAMI (@SteveOsunsami)
Sept. 20, 2011, ABC News
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Troy Davis has run out of appeals.

Davis was denied clemency this morning by the Georgia Board of Pardons and Paroles, the only authority in the state that can commute a death sentence, and is set to be executed Wednesday night at the state prison in Jackson.

"The board has considered the totality of the information presented in this case, and thoroughly deliberated on it," said board spokesman Steve Hayes in a terse statement. "After which the decision was to deny clemency."

Davis was convicted in 1989 for the shooting death of off-duty officer Mark Allen McPhail. McPhail was working as a night security guard in Savannah when he ran to help a homeless man who was the victim of an assault. In the chaos that followed, McPhail was shot three times.

Police never found the murder weapon, and seven of the nine witnesses who said Davis was the shooter have since changed their story.

In 2007, one of those seven witnesses told ABC News that she initially pointed the finger at Davis because of police coercion, and that she believed the real killer was one of the other witnesses. She said she feared he would come after her if she told the truth. She did not want to be identified at the time.

Another woman told the parole board Monday that she too believed the real killer went free. Quiana Glover said that she overheard Slyvester "Redd" Coles say that he was actually the shooter. Coles had been drinking heavily, she said. They were both at a party.

Coles, it turns out, was the first to implicate Davis, and at trial he testified that he left the scene before the shots were fired.

The officer's family said after the decision was announced that they simply want justice.

"This is what we've been fighting for, for twenty years," said Anneliese McPhail, the officer's mother. "We're ready to close this book and start our lives."

She points out that this is Davis's fourth execution date, in a case that at one point went before the US Supreme Court. McPhail's family has never had any doubt that Troy Davis was the shooter. They believe he was properly convicted.

There are still a good many people who believe the state of Georgia is about to execute an innocent man.

Georgia Representative John Lewis said that this is a "sad day for Georgia." "We have confirmed that the administration of law is more important than the search for justice."

The NAACP, Amnesty International, and other groups have all decried the parole board's decision, all suggesting that life in prison would have been a more just decision.

At time of McPhail's murder in 1989, the shooting divided Savannah along racial and socio-economic lines. The police were under tremendous pressure to solve the case, and put the killer away.

Davis is scheduled to die at 7 p.m. Wednesday night.

Eyes on an Execution
The Troy Davis case shows how wrong eyewitness evidence can be.

By Brandon L. Garrett, SLATE, Posted Tuesday, Sept. 20, 2011, at 3:52 PM ET
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Scalia says there’s nothing unconstitutional about executing the innocent.
By Ian Millhiser, Think Progress, Aug 17, 2009 at 5:00 pm
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Almost two decades ago, Troy Anthony Davis was convicted of murder and sentenced to die. Since then, seven of the witnesses against him have recanted their testimony, and some have even implicated Sylvester “Redd” Coles, a witness who testified that Davis was the shooter. In light of the very real evidence that Davis could be innocent of the crime that placed him on death row, the Supreme Court today invoked a rarely used procedure giving Davis an opportunity to challenge his conviction. Joined by Justice Clarence Thomas in dissent, however, Justice Antonin Scalia criticized his colleagues for thinking that mere innocence is grounds to overturn a conviction:
This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.
So in Justice Scalia’s world, the law has no problem with sending an innocent man to die. One wonders why we even bother to have a Constitution.

U.S. Supreme Court orders new hearing for Troy Davis
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Condemned killer on death row for murder of off-duty police officer
By Bill Rankin
The Atlanta Journal-Constitution

6:20 a.m. Tuesday, August 18, 2009
Georgia death-row inmate Troy Anthony Davis has long insisted that, given another day in court, he could prove he did not kill a Savannah police officer 20 years ago.

On Monday, in an extraordinary order unlike any it has issued in almost half a century, the U.S. Supreme Court gave Davis such a chance.

The high court ordered a federal judge in the Southern District of Georgia to hear testimony that could not have been obtained at the time of Davis’ 1991 trial and decide whether this new evidence “clearly establishes” his innocence in the death of Officer Mark Allen MacPhail.

Davis’ sister, Martina Correia, said she was overjoyed.

“Finally, it’s going to happen,” she said. “I know that a lot of people still think Troy is guilty. But I know that executing him will not bring justice for Officer MacPhail. I truly believe Troy is innocent.”

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.”

Photos from the case

Court to hear Troy Davis' innocence claims in cop's 1989 killing
By Bill Rankin, The Atlanta Journal-Constitution, 8:20 a.m. Wednesday, June 23, 2010
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Troy Anthony Davis returns today to Savannah, where he was convicted and sentenced to death almost two decades ago for killing an off-duty police officer during a late-night melee.

For more than a decade, Davis has sought to present in open court his claims of innocence, including the testimony of seven key prosecution witnesses who have recanted or contradicted their trial testimony. Today in U.S. District Court in Savannah he will get that chance, thanks to an extraordinary ruling last year by the nation's highest court.

Before today's hearing, spectators and members of the news media hoping to get a seat began forming a line outside the federal courthouse before 6 a.m. Davis arrived shortly before 7 a.m., accompanied by an armed escort of Chatham County police officers.

Vigils and rallies were held Tuesday night in Savannah and Atlanta on behalf of Davis and slain Savannah Police Officer Mark Allen MacPhail.

Davis' innocence claims have attracted international attention, including former President Jimmy Carter and Pope Benedict XVI urging that he be spared from execution. In recent years, Davis' scheduled execution has been halted three times -- on one occasion just two hours before he was to be put to death by lethal injection.

Last August, for the first time in nearly half a century, the U.S. Supreme Court took a case filed directly to its docket, instead of hearing an appeal of a lower-court ruling. It accepted Davis' last-ditch innocence claim after Davis had exhausted all his appeals.

The high court ordered a federal judge to convene a hearing to determine whether Davis' new claims "clearly establish" his innocence.

"Certainly, Mr. Davis and his attorneys have a very difficult burden ahead of them," said Howard Bashman, a Philadelphia attorney who operates a Web site devoted entirely to appellate litigation. "They have to show far more than there are serious doubts over the validity of the conviction. They have to show that the new evidence clearly establishes Mr. Davis' innocence."

Still to be decided is what standard U.S. District Judge William T. Moore Jr., who will preside over the hearing, will use to evaluate Davis' new innocence claims.

Must Davis prove by clear and convincing evidence that he is innocent so the judge is convinced he did not commit the crime, asked Georgia State University law professor Anne Emanuel. Or does Davis have to show that no reasonable person, after looking at the newly discovered evidence, could find him guilty beyond a reasonable doubt?

"The case does present, in very stark terms, the tension between justice and finality," Emanuel said.

Until the U.S. Supreme Court stepped in, Davis' attempts to get his new evidence presented in court had been repeatedly stymied by the federal Antiterrorism and Effective Death Penalty Act, legislation enacted in 1996 to streamline appeals of capital sentences.

But Davis' case may now force the U.S. Supreme Court to decide whether the Eighth Amendment's ban against cruel and unusual punishment also bars the execution of an inmate who has been convicted and later proved he is innocent, a claim the high court has never recognized.

Since the 1991 trial, a number of prosecution witnesses who testified they saw Davis shoot and kill MacPhail on Aug. 19, 1989, have backed off that testimony. Others who testified Davis told them he fired the fatal shots also have recanted. Two of those seven prosecution witnesses will not attend Wednesday's hearing, however, because they are now deceased.

Other witnesses expected to testify Wednesday have come forward since the trial and said that Sylvester "Redd" Coles, another man at the scene that night, admitted to them he was the actual shooter. Coles, who testified at trial and was the first person to implicate Davis to police, has denied being the gunman.

Coles has not recanted his trial testimony. Another witness, Stephen Sanders, saw the shooting when he was parked nearby with his Air Force buddies. Sanders initially told police he could not identify anyone at the scene, only the clothes they were wearing. But at trial two years later Sanders identified Davis as the killer.

Neither Coles nor Sanders is on the witness lists provided by lawyers for Davis and the state attorney general's office. Davis' lawyers have identified 14 witnesses they plan to call. The state has said it will call 17 witnesses, many of them officers who investigated the case and members of the prosecution team.

MacPhail, a 27-year-old former Army Ranger and father of two, was gunned down when he ran to a Burger King parking lot after hearing pleas from a homeless man who was being pistol-whipped. MacPhail was shot three times before he could draw his weapon.

When the high court ordered the hearing last August, Justice John Paul Stevens noted that no state or federal court had heard Davis' 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," wrote Stevens, who was joined by Justices Ruth Bader Ginsburg and Stephen Breyer.

Justice Antonin Scalia, joined by Justice Clarence Thomas, dissented, calling the hearing a "fool's errand" because Davis' innocence claim is "a sure loser."

Moore is not expected to make an immediate ruling. He has said he wants the parties to file legal briefs after the hearing is over. He also told lawyers for both sides that he has already read the trial record and the legal pleadings in the case and expects attorneys to enter his courtroom and "immediately" begin presenting their evidence.

Judge denies Troy Davis appeal
The Associated Press, 11:02 a.m. Tuesday, August 24, 2010
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SAVANNAH -- A federal judge Tuesday denied Georgia death row inmate Troy Davis' innocence claim after a rare hearing.

The ruling against Davis sets the stage for Georgia officials to move forward with executing him for the 1989 shooting death of Mark MacPhail, an off-duty Savannah police officer.

In June, U.S. District Court Judge William T. Moore Jr. heard two days of testimony from witnesses seeking to cast doubt on Davis' conviction. The Supreme Court ordered the hearing for Davis a year ago.

Davis has been spared from execution three times as his attorneys pushed their argument that new evidence showed police ignored MacPhail's real killer as they rushed to pin the shooting on Davis.

For more than a decade, Davis has sought to present in open court his claims of innocence, including the testimony of seven key prosecution witnesses who have recanted or contradicted their trial testimony.

Davis' innocence claims have attracted international attention, including former President Jimmy Carter and Pope Benedict XVI urging that he be spared from execution. In recent years, Davis' scheduled execution has been halted three times -- on one occasion just two hours before he was to be put to death by lethal injection.

Judge assigned to hear Troy Davis evidence
By Bill Rankin, The Atlanta Journal-Constitution, 11:56 a.m. Tuesday, August 25, 2009
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Chief U.S. District Judge William T. Moore Jr. of Savannah has been assigned to preside over the evidentiary hearing for Troy Anthony Davis, who sits on death row for the murder of an off-duty Savannah police officer in 1989.

On Aug. 17, the U.S. Supreme Court ordered a judge in the Southern District of Georgia to hear testimony that could not have been obtained at the time of Davis’ 1991 trial and decide whether the new evidence “clearly establishes” his innocence in the death of Officer Mark Allen MacPhail. Since the trial, seven of nine key state witnesses have recanted their testimony against Davis and others have implicated another man in the shooting.

Moore has yet to schedule a hearing date. A former U.S. attorney, Moore was appointed to the federal court by President Bill Clinton in 1994 and has served as chief judge for the past five years.

 
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