July 14, 2007
Judge denies stay of execution, new trial for convicted killer
The Associated Press
SAVANNAH, Ga. - A Chatham County judge on Friday denied a bid to halt next
week's scheduled execution of convicted cop killer Troy Anthony Davis and
refused to hear evidence in a long-shot motion for a new trial.
Davis' attorney, Jason Ewart, said the defense team would appeal the ruling
by Superior Court Judge Penny Haas Freesemann to the state Supreme Court.
Davis, 38, is scheduled to die by lethal injection at 7 p.m. Tuesday. A jury
convicted him for the murder of Savannah police officer Mark MacPhail, who
was shot in 1989 while moonlighting as a security guard.
Davis insists he's innocent. His lawyers filed a motion Monday seeking a new
trial based on affidavits by witnesses from Davis' 1991 trial who now say
they lied or exaggerated when they testified Davis shot the officer.
Davis' lawyers also say other witnesses have signed affidavits naming
another man, Sylvester "Red" Coles, as MacPhail's killer.
Freesemann's ruling said Georgia courts geneally do not favor granting such
retrials, and the evidence presented by Davis' lawyers failed to meet strict
standards required by state law.
The judge said having witnesses who claim to have given false testimony
"fails to meet the newly discovered evidence standard under well-settled
She also rejected the affidavits by people claiming they heard Coles confess
to the murder, say they "contain inadmissible hearsay."
Davis' attorneys had argued the witness statements in the affidavits would
likely acquit him in a new trial.
"The new evidence does not merely impeach State witnesses, but destroys the
Dunn wrote, saying "a grave injustice may result from the execution of Troy
Prosecutors urged the judge to dismiss Davis' request for a stay, arguing
the evidence cited by his lawyers doesn't meet the high legal standard
required to grant Davis another trial.
"Clearly, the Defendant has brought these motions for the purpose of delay,"
David Lock, Chatham County chief assistant district attorney, wrote in a
response filed Tuesday. "The Defendant waited to bring this motion until the
eve of his execution solely to thwart justice."
Donald E. Wilkes Jr., a University of Georgia law professor who specializes
in the death penalty, said it's not uncommon in Georgia for lawyers of
condemned inmates to seek last-minute retrials.
Wilkes said Georgia is the only state he's aware of that allows death-row
inmates to seek a new trial after their appeals have been exhausted.
However, state law requires defense lawyers to show evidence that meets very
"Yes, it is a Hail Mary, but it's not necessarily a baseless Hail Mary,"
Wilkes said Friday.
Davis is also scheduled to have a clemency hearing Monday before the Georgia
Board of Pardons and Paroles, at which Davis will have one powerful
U.S. Rep. John Lewis, an Atlanta Democrat and civil rights icon, plans to
testify to Davis' behalf out of concern that the state is executing an
innocent man, said Lewis' spokeswoman, Brenda Jones.
The state Department of Corrections, meanwhile, said Friday that Davis had
made no special requests for his last meal, so he would be served the same
food as other inmates _ chicken and gravy on biscuits, mashed potatoes,
collard greens, tossed salad and spice cake with iced tea.
According to court records, Davis shot MacPhail twice _ in the face and
chest _ after the officer rushed help a homeless man who cried out after
someone struck him in the head with a pistol.
The shooting took place in a Burger King parking lot next to the bus station
where MacPhail worked off-duty as a security guard.
Davis' lawyers say seven of nine witnesses who testified in 1991 that they
either saw Davis shoot the officer, saw him assault the homeless man before
the shooting or heard Davis later confess to the slaying have since recanted
or contradicted their testimony.
Other affidavits from three people who did not testify at Davis' trial say
Coles confessed to killing the officer after Davis was convicted. Coles
testified against Davis in 1991.
"Red once told me that he shot a police officer and that a guy named Davis
took the fall for it," Anthony Hargrove, a friend of Coles, said in an
affidavit dated Aug. 20, 2001.
Prosecutors argue that most of the witness affidavits, signed between 1996
and 2003, were included in Davis' appeals and should not be considered new
Davis' lawyers say appeals courts ignored any new evidence of Davis'
innocence and instead focused on whether his constitutional rights had been
At least one Georgia death-row inmate has been freed based on new evidence
discovered years after his conviction.
In 1980, Jerry Banks was set free more than five years after he was
sentenced to death in the 1974 shotgun slaying of two people in Henry
County. The Georgia Supreme Court granted Banks a new trial in 1980 after
his lawyers found evidence ignored previously that suggested a gun other
than Banks' single-barrel shotgun was used by the killer.
The district attorney dropped the case, setting Banks free. Banks killed his
wife and committed suicide in 1981.
Source : The Associated Press