Why the death penalty is still a bad idea

As Execution Nears, Last Push From Inmate’s Supporters

By BRENDA GOODMAN

Published: July 15, 2007

ATLANTA, July 14 — It was a Friday night in a rough part of town when Officer Mark A. MacPhail of the Savannah Police Department showed up to work his second job, moonlighting as a security officer for the Greyhound bus station on Oglethorpe Avenue in Savannah, an area where transients were known to congregate and to drink through the early morning hours.

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Georgia Department of Corrections

Troy A. Davis was convicted of killing a police officer in 1989.

A few hours later, early on a Saturday morning in August 1989, Officer MacPhail was shot and killed as he tried to break up a fight over a can of beer. He never drew his weapon.

The man convicted of shooting the officer that night in 1989, Troy A. Davis, is likely to be the focus of an unusual clemency hearing before the Georgia Board of Pardons and Paroles. On Monday, the board is to hear the case of Mr. Davis, 38, who was sentenced to death in 1991 for the killing.

Though prosecutors have considered the case solved for nearly two decades, a chorus of eyewitnesses say the police arrested the wrong man. Now, on the eve of execution, scheduled for Tuesday, they have joined his family and his lawyers in an effort to get the courts to hear new evidence they say proves he is innocent.

With no physical evidence — the murder weapon was never found — prosecutors relied heavily on the testimony of nine eyewitnesses who took the stand against Mr. Davis.

But since his trial, seven of the nine have recanted or changed their testimony, saying they were harassed and pressed by investigators to lie under oath. Other witnesses have come forward identifying a different man as the shooter.

But because of a 1996 federal law intended to streamline the legal process in death penalty cases, courts have ruled it is too late in the appeals process to introduce new evidence and, so far, have refused to hear it.

Legal experts, including William S. Sessions, a retired federal judge, a former director of the Federal Bureau of Investigation and a self-described supporter of the death penalty, have sounded the alarm over Mr. Davis’s case. They say it underscores the many ways the death penalty is unevenly and wrongly applied, particularly in the South, the region with the most death penalty cases.

“It would be intolerable to execute an innocent man,” Mr. Sessions wrote in an op-ed article for The Atlanta Journal-Constitution. “It would be equally intolerable to execute a man without his claims of innocence ever being considered by the courts or by the executive.”

Representative John Lewis, Democrat of Georgia, is expected to testify at the clemency hearing Monday.

In addition to the hearing, lawyers for Mr. Davis asked for a new trial, but on Friday, Judge Penny Haas Freesemann of Chatham County Superior Court in Savannah denied the bid. Mr. Davis’s lawyers told The Associated Press that they would appeal to the state Supreme Court.

Mr. Davis’s older sister, Martina N. Correia, has watched her brother’s battle against a legal system she believes is biased against poor black defendants.

Georgia is one of only two states that do not guarantee defense counsel for condemned prisoners after they have exhausted their direct appeals.

“Our father worked as a sheriff’s deputy in Savannah,” said Ms. Correia, 40. “My fiancé is a police officer. We trusted that if you’re innocent, the system would work.”

“When they finally got people to tell the truth, they said it was too late to introduce it,” she said. “Some of these people, I don’t know how they sleep.”

On June 10, Ms. Correia and her mother led representatives from Amnesty International to the offices of the Georgia Board of Pardons and Paroles and delivered thousands of letters written in support of Mr. Davis, asking for clemency.

It is rare for the board to commute a death sentence but not unprecedented. Since 1973, the board has granted 50 clemency hearings and commuted 8 sentences.

The last was granted more than three years ago, however, and even Mr. Davis’s lawyers acknowledge that despite the outpouring of support for their client, undoing 15 years of what previous defenders have admitted was poor legal work on behalf of their client would be a long shot.

“But we believe the truth can prevail,” said Jason Ewart, a lawyer from Washington who is representing Mr. Davis.

Some of the facts of the night Officer MacPhail was killed are not in dispute.

Early on the morning of Aug. 19, 1989, a man described as a neighborhood thug, Sylvester Coles, began harassing a homeless man named Larry Young for the beer he was carrying in a paper sack.

A crowd of bystanders, some of whom had spilled out of nearby Charlie Brown’s Pool Hall after hearing the ruckus, followed the fight as it progressed up Oglethorpe Avenue toward the bus station.

Several witnesses later testified that they had heard Mr. Coles threaten Mr. Young with a gun and then saw him pull a pistol out of his pants and then use it to beat Mr. Young on the head.

Fearing for his life, Mr. Young yelled for someone to call the police, and Officer MacPhail responded. He was shot twice and died.

Mr. Davis said he had been one of the bystanders who came out of the pool hall and watched as Mr. Coles tormented Mr. Young. He said that he had run when he heard Mr. Coles threaten to shoot Mr. Young and that he had never looked back.

Mr. Davis surrendered to the Chatham County Sheriff’s Department several days later when he learned the police were looking for him, said his sister Ms. Correia. The family says it trusted that what seemed to be a case of mistaken identity would quickly be sorted out.

With no physical evidence to connect Mr. Davis to the shooting, the prosecutors relied heavily on the testimony of nine witnesses, including Mr. Coles, who identified Mr. Davis as the gunman the day after it happened, with a lawyer by his side.

Mr. Coles could not be found for comment this week.

But in an affidavit filed later, one of the witnesses, Antoine Williams, recalled his testimony that Mr. Davis was responsible for the crime.

“Even when I said that,” Mr. Williams said, “I was totally unsure whether he was the person who shot the officer. I felt pressured to point at him because he was the one who was sitting in the courtroom.”

Ms. Correia said that as the day of the execution drew near, some of the people who testified against her brother were feeling remorse.

“These witnesses, they are calling my brother and asking him to forgive them,” Ms. Correia said. “They thought if they told the truth and signed a piece of paper saying they lied before that’s all it would take. He would go free. They can’t believe he might die because they lied.”