State urges judge to deny Troy Davis claim

Troy Davis

Lawyers for convicted murderer Troy Anthony Davis made "a strategic decision" not to call two witnesses at last month's federal court hearing and should not be allowed to use their choice to re-open the evidence, attorneys for the state argued Wednesday.

Davis' attorneys have worked for 15 years to gather evidence to prove his innocence and had plenty of time during two days of testimony before U.S. District Judge William T. Moore Jr. to present their case, the state contends in its 13-page filing.

"They chose only to call 'the most important witnesses,'" attorneys with the Georgia Attorney General's office argued. "(Davis) still seeks to claim that he has not been afforded his day in court."

Davis remains on Georgia's death row at the Georgia Diagnostic and Classification Center at Jackson on his murder conviction and death sentence in the Aug. 19, 1989, slaying of off-duty Savannah police officer Mark Allen MacPhail.

The officer was gunned down as he rushed to assist a homeless man under attack in the parking lot of the Greyhound Bus terminal/Burger King restaurant on Fahm Street.

A Chatham County Superior Court jury convicted Davis on Aug. 28, 1991.

Moore held hearings June 23 and 24 to allow Davis' appellate team to present evidence to "clearly" establish his innocence.

Those lawyers asked Moore July 22 to reconsider his decision to reject hearsay testimony that another man, Sylvester "Redd" Coles, killed the officer.

They failed to call Coles last month, telling Moore there was no reason to do so since he was "not going to admit to this killing."

Moore told Davis' lawyers he was not going to "abandon the rules of evidence," warning that hearsay evidence is looked at with suspicion and he might not consider it his final determination.

Defense lawyers want affidavit testimony by Dorothy Ferrell to be considered even though they did not call her and she was in the courthouse, the state argues.

"Counsel, not Ms. Ferrell, chose not to have her testify," they argued in Wednesday's filing.

Nor did Davis' team place on the record her alleged "reluctance" to testify, the state said.

They also want Moore to reconsider his rejection of Quiana Glover's testimony.

And the state argued an affidavit from investigator Jeffrey Walsh that he was unable to subpoena Coles at his job was presented "for the first time, a month after the hearing," the state contends.

They said Davis' team only sought to find Coles after Moore "questioned whether Mr. Coles would be testifying" on the first day of the hearing.

Davis "has had his day in court, his evidence has been heard," the state argued, adding it did not meet the required burden.

Moore has taken the case under study and given no indication on when he might rule.

Source: SavannahNow.com, July 29, 2010