July 13, 2007
Attorneys argue over 'new evidence' in Davis case
Jan Skutch, Savannah Morning News
Prosecutors argued Thursday that protests of innocence by Troy Anthony Davis
in the murder of Mark Allen MacPhail are old news, not newly discovered
Their response, filed before Chatham County Superior Court Judge Penny Haas
Freesemann, countered defense filings Wednesday that renewed the arguments
by attorneys for Davis that a court must look at new evidence of their
Freesemann is being asked to grant Davis' extraordinary motion for a new
trial and stay his execution, which is set for 7 p.m. Tuesday. An
extraordinary motion sets up a series of requirements that have to be met to
gain court action.
The request is based on what defense attorneys argue is newly discovered
evidence that would have changed the results of Davis' trial.
Davis, 38, was convicted in superior court on Aug. 28, 1991, on murder and
related charges in the slaying of Savannah police officer MacPhail during a
confrontation Aug. 19, 1989.
Davis has exhausted his appeals, and the Georgia Board of Pardons and
Paroles is scheduled to hear his plea for clemency at 9 a.m. Monday in
State: Proceed to execution
Chief Assistant District Attorney David Lock argued Thursday that at least
four witnesses identified Davis as the gunman and four others identified him
as the man who struck Larry Young in the head with a pistol.
MacPhail, working off duty in 1989 at the Greyhound Bus Terminal on
Oglethorpe Avenue, was shot to death when he rushed to Young's assistance.
In his analysis of the defense affidavits, Lock argued Davis presented his
first set of affidavits in 1995-1996 "at least six years after defendant's
trial and four years after ... denial of a new trial in 1992."
A second set of affidavits was offered for Davis in 2001-2003.
"The final set of affidavits were obtained only recently, in light of the
pending imposition of defendant's death sentence," Lock said.
Davis, he argued, "has offered no justification for waiting until 2007 to
file his latest affidavits and statements.
"The totality of the circumstances clearly demonstrate ... the filing of
this extraordinary motion is a last-minute effort to delay the imposition of
his sentence," Lock said. "The extraordinary motion for new trial should be
summarily dismissed and the stay of execution denied."
Davis: New evidence overlooked
The local intervention attempt, which began Monday, resumed Wednesday when
his lawyers argued Davis has "diligently pursued and tirelessly insisted on
"He also has presented new evidence that implicated (Sylvester) Red Coles
and questions the integrity of the police investigation,
Dunn of the Georgia Resource Center for death penalty representation argued
in his filing.
Central to the Davis defense has been the defendant's insistence that Coles
Attorneys for Davis made that a focus of their trial defense. Coles was
never charged, and he implicated Davis as the shooter.
The new filings charge that Coles' reputation scared off witnesses who could
have helped Davis at trial and afterward.
"In 10 affidavits submitted to this court, witnesses complain that they were
intimidated by either police or Red Coles," Dunn argued.
One witness, Tonya Johnson, stated in a 1996 affidavit that Coles had a gun
that night, but court documents allege she did not testify because she was
afraid of Coles.
"It is disingenuous of the government to assert that these witnesses have
merely changed their minds about the events that transpired," Dunn asserted.
"The affidavits presented regarding the hostile and violent tendencies of
Red Coles very closely portray the veritable helplessness of these witnesses
to be fully candid before the court at the time of trial."
Family and friends of Troy Anthony Davis plan to have a vigil for Davis at 6
p.m. Saturday at Sacred Heart Catholic Church, 1707 Bull St.
Where the case has gone
Since his conviction on Aug. 28, 1991, appeals by Troy Anthony Davis have
been rejected. They include:
March 16, 1992: Motion for new trial denied in Chatham County Superior
Feb. 26, 1993: Conviction and sentence affirmed by Georgia Supreme Court.
Dec. 16, 1996: Affidavits as part of state petition filed in Butts County
Sept. 5, 1997: Butts County judge denied Davis' claim.
2001: Petition filed in U.S. District Court at Savannah.
March 10, 2003: U.S. District Senior Judge John Nangle denied evidentiary
May 13, 2004: Nangle denied Davis' petition.
Sept. 26, 2006: U.S. 11th Circuit Court of Appeals affirmed Nangle's
June 25, 2007: U.S. Supreme Court declined to hear the case.
(Source: Documents filed in Chatham County Superior Court)
Source : Savannah Morning News