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Troy Davis Makes Case for New Round of Appeals

By Jonathan Springston, Senior Staff Writer, The Atlanta Progressive News (December 09, 2008)

(APN) ATLANTA – A three judge panel of the Eleventh U.S. Circuit Court of Appeals on Tuesday met to decide if they will allow Georgia death row inmate Troy Anthony Davis to file a new round of federal appeals.

The judges spent over an hour questioning Davis’s attorneys and the State to determine if Davis has sufficiently answered the two following questions:

First, given the evidence available Tuesday, is it likely a jury would not convict Davis? Second, did Davis exercise due diligence in providing new evidence?

Additionally, if the answer to the first question is yes, can Georgia carry out an execution even if the answer to the second question is no?

Davis has been on death row since 1991 after a jury convicted Davis of the August 1989 murder of off-duty police officer Mark Allen MacPhail. Witnesses at the first trial said Davis shot and killed MacPhail, who was responding to the cries of a homeless man being pistol whipped in a Burger King parking lot.

But since the first trial, seven of nine eyewitnesses used by the prosecution have either changed or recanted their testimony in sworn affidavits.

Defense attorneys argue this new evidence shows Davis is innocent and that his execution would violate the Eighth and Fourteenth Amendments of the U.S. Constitution.

"This is not a clear cut case," Judge Rosemary Barkett said Tuesday. "The witnesses have injected a great deal of doubt [about Davis’s guilt]."

Barkett indicated during arguments Tuesday it would be her "personal preference" to see the witnesses in a court of law.

At almost every step of Davis’s appeal, prosecuting attorneys have argued that the new evidence is not admissible because defense attorneys did not submit the affidavits in a timely manner and that the witnesses’ new testimony is simply not trustworthy.

Davis has so far been unable to obtain a hearing on the new evidence or a new trial.

"He has presented no credible evidence of actual innocence," Susan Boleyn, Senior Assistant Attorney General of Georgia, said Tuesday. She claimed Davis did not present the new evidence in a timely manner, suggesting attorneys should have filed the evidence immediately with the trial court instead of waiting years.

Tom Dunn, an attorney for Davis, argued that each time a witness made a sworn statement in an affidavit, he and his colleagues passed it along right away to the trial court explaining its importance. "No one could say we didn’t do due diligence," Dunn said.

Boleyn also argued that Sylvester Coles’s admission in the years following the 1991 trial to three witnesses that he was the shooter "is not trustworthy" because he made this admission while smoking marijuana or drinking. She suggested that perhaps he made the statement to impress the witnesses.

Coles, who is one of two witnesses who have not changed his original testimony, appeared with Davis in the Burger King parking lot the night of the murder. Coles went to the police the day after the murder and implicated Davis.

"It seems police were so anxious to get somebody that they didn’t pursue Coles," Barkett suggested.

Boleyn countered that police conducted a thorough investigation.

Dunn, Davis’s attorney, noted that because Coles and Davis were in the parking lot the night of the murder, "it doesn’t exclude either of them" from suspicion.

Boleyn argued that state, not federal, courts decide if actual innocence claims are viable.

She also noted that the Georgia Supreme Court, the Georgia Board of Pardons and Paroles, and the Eleventh Circuit Court of Appeals have all ruled against Davis in previous stages of his appeals.

"You can’t just keep getting bites of the same apple," she said.

Dunn and Jason Ewart, lead attorney for Davis, argued witnesses implicated Davis during the first trial because of police coercion or because Coles intimidated them to do so, and that the witnesses admitted this in their affidavits.

Dunn said the new evidence presents "a clear, credible claim of actual innocence."

"We’re entitled... to have this case heard for the first time on the merits of the law," Dunn said. "I think this court should give us permission to go to the District Court."

Tuesday’s hearing is just the latest in a string of developments that have drawn international attention to the case.

Davis has had three scheduled execution dates and three stays of execution since July 2007. Most recently, Davis was set to die on October 27, 2008, after the Supreme Court of the US denied his certiorari petition.

But the Eleventh Circuit jumped in on October 24 and issued a stay of execution.

Davis filed his brief requesting a second federal habeas petition on November 10 and the Georgia Attorney General’s office filed its response November 14.

It is unclear when the Court will issue a decision. Attorneys for Davis said Tuesday that it could take anywhere from a matter of days to a couple of months.

If the Court rules for Davis, then he could ask the U.S. District Court for the Southern District of Georgia for an evidentiary hearing, which would allow witnesses to testify and to be questioned in court.

Should the Court rule with the State, a new execution date could be set within a matter of days after the decision.

Several dozen Davis supporters attended Tuesday’s hearing along with the families of Davis and MacPhail. Martina Correia, Davis’s sister, spoke afterward.

"This is not family against family," she said. "We have no ill will against the MacPhail family."

Correia said she and her family remain hopeful Davis will get his day in court.

"When justice is found for Troy, there will be justice for Officer MacPhail."

About the author:

Jonathan Springston is a Senior Staff Writer for The Atlanta Progressive News and is reachable is jonathan@atlantaprogressivenews.com.

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