Troy Davis case decision expected by Oct. 6

English translation:
Second eleventh hour stay for Troy Davis
- New orders, Mr. Davis. Nothing's for sure yet. In the meantime we'll keep you in here.
- For lunch, you may have the last meal you turned down yesterday.

When the U.S. Supreme Court meets Monday to decide Troy Anthony Davis’ fate, its nine justices face a fairly straightforward question: Is there sufficient doubt about Davis’ guilt to warrant further scrutiny of his case?

Davis needs four justices to vote “yes.” Otherwise, his execution, halted by the high court less than two hours before it was to be carried out Tuesday evening, will be rescheduled. The court is expected to announce its decision Oct. 6.

“The court can grant a stay and then refuse to hear a case, but they don’t issue the stay lightly,” said Thomas Goldstein, a Washington lawyer who specializes in arguing cases before the high court. “They are thinking about it hard.”

The stay infuriated the family of slain Savannah Police Officer Mark Allen MacPhail. They had traveled Tuesday to the Georgia Diagnostic and Classification Prison in Jackson to witness the execution. But it sent Davis’ family and supporters, who arrived at the prison in a church bus to stage a protest, into a jubilant frenzy.

Davis sits on death row for the Aug. 19, 1989, murder of MacPhail, a 27-year-old officer shot dead after he responded to the wails of a homeless man being pistol whipped in a Burger King parking lot. The former Army Ranger and father of two, working off-duty as a security guard, did not have time to draw his gun before being shot three times.

Davis was convicted with scant physical evidence: no DNA, no fingerprints, no murder weapon.

Since the 1991 trial, seven of nine key witnesses who testified against Davis, 39, have recanted their testimony. These include trial witnesses who testified they saw what happened, as well as witnesses who testified Davis told them he killed MacPhail. More witnesses have come forward and implicated Sylvester “Redd” Coles, who was with Davis in the parking lot, as the triggerman.

Coles, when previously approached by The Atlanta Journal-Constitution, declined comment. He was the first person to go to police and finger Davis as the suspect and is one of two witnesses who have not backed off their trial testimony.

The other, Stephen Sanders, first told police he could not identify anyone at the scene except by the clothes they were wearing. But at trial, Sanders testified he saw Davis fire the fatal shots.

Chatham County prosecutors say they are certain Davis is a cop killer, and MacPhail’s relatives say the death sentence should have been carried out long ago. But Davis’ lawyers contend there is too much doubt to allow the execution.

Indiana University law professor Joseph Hoffman noted that at least five justices must vote to grant a stay of execution. While this does not mean the high court will accept Davis’ appeal, it indicates some justices wanted more time to look at it, he said.

With the exonerations of inmates nationwide based on DNA evidence, the U.S. Supreme Court is giving more careful scrutiny to innocence claims, said Hoffman, a death penalty expert.

“This is the kind of case that has the court on edge right now,” he said. “So it’s not completely surprising that out of all the death cases that come before it this would be the one granted a stay.”

Davis is appealing a ruling by a sharply split Georgia Supreme Court. His lawyers are asking the high court to declare that the Eighth Amendment’s ban on cruel and unusual punishment bars the execution of the innocent and requires at least a court hearing to assess the recantation evidence.

Courts have long considered the recantations of trial witnesses suspect. Trial testimony is closer to the time of the crime, when memories should be more reliable. Witnesses also are allowed to be cross-examined under a judge’s supervision.

For this reason, courts erect high thresholds for convicts to clear when seeking new trials based on newly discovered evidence or recanted testimony.

In Davis’ case, the question before the U.S. Supreme Court is whether the Georgia Supreme Court set the bar too high.

In a 4-3 Georgia Supreme Court decision, written by Justice Harold Melton, the court followed a precedent that demands proof, with “no doubt of any kind,” that a witness’ trial testimony was “the purest fabrication.”

Melton cited a state Supreme Court ruling in 1983 involving a Clayton County murder conviction, obtained when a witness testified he lent his car to the defendant on the night of the killing and saw the bound and gagged victim placed in the back seat. When it was later shown the witness was in the Cobb County jail at that time and could not have been telling the truth, the court granted a new trial.

The recantations in Davis’ case do not rise to such a level of proof, nor has he shown that his new evidence is “so material that it would probably produce a different verdict,” Melton wrote.

Justice Leah Ward Sears, in dissent, said there is merit to requiring proof that testimony was the “purest fabrication” to warrant a new trial or hearing. “However, it should not be corrupted into a categorical rule that new evidence in the form of recanted testimony can never be considered, no matter how trustworthy it might appear.”

Ezekiel Edwards, an attorney with the Innocence Project in New York, called the state Supreme Court’s decision troubling.

“It sets a terrible precedent for innocent people who are incarcerated and where there isn’t DNA evidence but where there may be one or multiple recanting witnesses who for a whole bevy of reasons are saying their original testimony was false,” he said. “In most recantation cases, you could never meet the standard they’ve set.”

In filings before the U.S. Supreme Court, the state Attorney General’s Office noted Davis’ lawyers attacked the credibility of prosecution witnesses at trial and Davis declared himself innocent on the stand, yet jurors still convicted him and sentenced him to death. Since then, state and federal courts have considered the recantation testimony, presented in the form of sworn written statements, and rejected that too, the AG’s office said.

Source: The Atlanta Journal-Constitution, Sept. 29, 2008