Troy Anthony Davis declined to make a recorded statement this afternoon as the clock ticked down toward his execution tonight, a prison official said.
Davis will be given one last chance to say his final words once he is strapped to the lethal injection gurney. He is set to be put to death by lethal injection at 7 p.m.
Davis’ chance to be spared execution suffered a blow this afternoon as first Superior Court Judge Thomas Wilson declined to issue a stay and then the Georgia Supreme Court unanimously rejected Davis’ final bid. Davis’ lawyers will now appeal to the the U.S. Supreme Court, his last chance for relief.
Davis, 42, has been here before. On three prior occasions, the state of Georgia set his execution date and on each occasion — once with just about two hours to go — he was granted stays. But Davis and his lawyers had pinned their hopes this week on the Georgia Board of Pardons and Paroles, which has the sole authority in Georgia to commute a death sentence. On Tuesday, the board rejected their bid.
At 4 p.m., Davis was given a last meal of a cheeseburger, potatoes and slaw — the same as what was served other inmates today — but he has not eaten it, a prison spokeswoman said.
The scene outside the state prison in Jackson, where Davis’ execution is to take place, is unlike any other previous execution in past years.
Television satellite trucks and media cars are parked bumper to bumper. Scores of death penalty opponents gathered in the area set aside for them, while one woman stands in an area cordoned off the those who support the death penalty. Security was tighter than at previous executions with numerous state patrol cars parked across from the prison.
The Rev. Raphael Warnock, pastor of Ebenezer Baptist Church who has visited Davis in the past, was denied a chance to see the condemned inmate this afternoon.
“We did not get a chance to see Troy,” Warnock said. “We reached out to the warden and the [Corrections] commissioner to no avail. We didn’t get an explanation [why it was denied]. We wanted to do a pastoral visit, to offer comfort and last rights if you will, to pray. It’s another insult to this injustice.”
Davis’ final chance to be spared execution now rests with the state’s highest court or the nation’s highest court. Today’s court filing in the Superior Court of Butts County, home to Georgia’s death row, says ballistics evidence used to convict Davis during the 1991 trial has been discredited as has testimony from a woman who said she was an eyewitness to the murder and a jailhouse informant who testified at trial that Davis told him he was the killer.
“We are going to give the justice system one more chance to avoid a legal, constitutional and moral disaster,” Brian Kammer, one of Davis’ lawyers, said.
Davis sits on death row for the 1989 murder of off-duty Savannah Police Officer Mark Allen MacPhail, a 27-year-old former Army Ranger and father of two who was shot three times before he could draw his weapon. Since the trial, a number of key prosecution witnesses have recanted or backed off their testimony and Davis’ innocence claims have generated worldwide attention.
Early this morning, his lawyers tried to gain access to the state prison in Jackson where Davis resides so he could be administered a polygraph test to try and show he is not a cop killer. But his lawyers were rebuffed.
“We came here to try and prove Mr. Davis is innocent and unfortunately we were denied that opportunity by the Department of Corrections,” Stephen Marsh, one of Davis’ lawyers, said shortly after being turned away from the prison.
Prosecutors steadfastly maintain that Davis is guilty and MacPhail’s family members say they have no doubt in Davis’ guilt and want his execution to be carried out.
“There is no doubt in my mind,” MacPhail’s mother, Anneliese MacPhail, said when asked if she thought Davis was guilty. If Davis’ execution is carried out as planned, “I guess justice will be done and that’s what we were fighting for,” she said.
About 100 bused-in protestors sought relief from the heat under the pines outside Jackson prison. There were occasional chants from anti-death penalty protestors in the early afternoon sun by men and women wearing “I am Troy Davis” Amnesty International t-shirts. But in the pro-execution section a single 55-year-old woman sat alone. She had the prison-supplied water cooler all to herself.
She was from Decatur and her daughter is a police officer. Her surprise was that there wasn’t one cop or a mother of a cop or a grandfather of a cop sitting there with her.
“I would hope that if I need support, police officers would be there,” said Janet Reisenwitz. “I was hoping the family of the murdered police officer would be here so I could embrace them.”
Not 100 feet away were Troy Davis supporters, many of them bused in by Al Sharpton and his National Action Network from Atlanta. Among them A. C. Dumas, wearing a red polo shirt and an NAACP freedom fighter cap, said he came all the way from Flint, Mich., to support Davis.
Sharpton contended that the Davis case was full of reasonable doubt, the legal threshold for acquittal. He said he had a meeting scheduled with the Justice Department this Friday in which he said he intended to push for a national law prohibiting the death penalty in cases base solely on often flawed eye-witness testimony. Physical evidence such as DNA, fingerprints, or ballistic testing should be mandatory, he said.
“You got to have more than people saying ‘I saw him’ and 10 years later saying ‘I was wrong’ or ‘I was coerced,’ “ Sharpton said. He said he wasn’t surprised that the case that has brought so much international condemnation would draw so few Davis supporters to the gates of the prison. He bused in most of them he said adding, “People got to work.”
A little after 3 p.m. at Towaligia County Line Baptist Church, near the jail, Sharpton attended press conference organized by Amnesty International and the NAACP. It took on the flavor of a tent revival meeting.
Among the speakers were Big Boi of musical group Outkast; Larry Cox, executive director of Amnesty International; and Martina Correia, the eldest sibling of Davis.
“This is a gross violation of human rights,” Cox told the AJC before the press conference. “In the whole world of Amnesty International, members have their eyes on Jackson.”
“Even if you support the death penalty, you can’t justify it in this case,” he added.
“I’m not here to say who is innocent or who is guilty, but if you’re going to execute a man you need to make sure he is 100 percent guilty,” said Big Boi, who’s real name is Antwan Patton. “There is too much doubt.”
Patton grew up in Savannah before moving to Atlanta as a youth.
But it was Correia who uses a wheel chair to get around who made the most poignant points. She deeply believes in her brother’s innocence and she said his execution should be used as a metaphor for why the death penalty should be abolished.
“Troy said this movement did not begin with him and will not end with him,” she said as she promised to take the fight to the gold dome in Atlanta.
“The parole board had once promised it would not allow an execution to go forward if there was doubt,” she said “and the Davis case is riddled with doubt.”
“It seems like this state wants to remain defiant,” she said. She added that she had been moved that the slogan she wrote on a T-shirt some years ago was now worn around the world. She motioned to her wheel chair that she had been battling cancer for 10 years and was suffering from some of its effects. And then in her own strong defiant voice, as her family helped her rise, she said. “I couldn’t get out of this chair, but I’m here to tell you I’m going to stand for my brother today.” As she faced the crowd upright.
“I am Troy Davis, you are Troy Davis.” The small church crowd then stood and began to chant. The voices finally reaching unison, “We are Troy Davis.”
As the afternoon wore on another 200 supporters showed up at the church readying to march to the prison gates.
Davis has mounted repeated court challenges to his conviction and sentence but has been rebuffed every step of the way. The U.S. Supreme Court stepped in at one point, issuing an extraordinary order directing a federal judge in Savannah to determine if Davis could clearly establish his innocence. But the judge discredited six of the seven witnesses who recanted or backed off their testimony and found Davis had not cleared that difficult legal threshold, denying his challenge.
Still, a host of dignitaries have called for Davis to be spared execution out of concern an innocent man could be put to death. These include former President Jimmy Carter, Pope Benedict XVI, former FBI Director Williams Sessions, former Georgia congressman Bob Barr and former Georgia Supreme Court Chief Justice Norman Fletcher.
On Tuesday, Davis’ lawyers asked the parole board to reconsider its rejection of clemency. The Innocence Project and the Innocence Network also asked the board to reconsider. “The identification procedures used to convict Davis would never pass muster today,” Barry Scheck, co-founder of the Innocence Project, said.
Six retired corrections officials, including Allen Ault, the former director of the prison system, also asked the board to reconsider its decision. “We write to you today with the overwhelming concern that an innocent person could be executed in Georgia tonight,” they wrote in a letter.
But the parole board, in a brief statement released this morning, said it would not reconsider its decision to deny clemency.
Today’s last-ditch court filing by Davis’ lawyers says that new evidence “exposes key elements of the state’s case against Mr. Davis at trial to be egregiously false and misleading.”
The court filing says that GBI ballistics testimony at the 1991 trial is no longer reliable. At the trial, a GBI expert said there were enough similarities between shell casings found at the scene of MacPhail’s murder and shell casings found at the scene of another shooting earlier in the evening to show the casings could have come from the same handgun.
Prosecutors said Davis first fired shots at a pool party in Savannah’s Cloverdale neighborhood, hitting a man in the face, and then later shot and killed MacPhail. But forensics experts have now shown that the ballistics testimony is no longer reliable, the filing said.
The filing also says that jailhouse informant Kevin McQueen’s testimony at trial that Davis confessed to him he killed MacPhail can no longer be relied upon. The filing notes that a federal judge who heard recantation testimony from McQueen found McQueen’s trial testimony to be “patently false.”
At trial, McQueen provided the state with a motive for Davis, saying Davis told him he killed MacPhail because Davis didn’t want to be tied to the Cloverdale shooting. “Now it is clear that Mr. Davis never should have had to confront this evidence as it was completely false,” the court filing says.
The order signed by Judge Wilson today said that claims being pursued by Davis had previously been raised and rejected. As for the ballistics evidence, the order said, a federal court judge had previously found that there was never a definitive contention at trial that the bullets matched and that the munitions evidence was not relevant to Davis’ guilt of the MacPhail murder.
But Davis’ appeal filed this afternoon to the Georgia Supreme Court said that the Constitution forbids the imposition of a death sentence that is based on “materially inaccurate” information, such as what was presented to the jury that sentenced Davis to death.
A judge now having denied the motion, Davis’ lawyers’ final avenues for relief are the Georgia Supreme Court and then the U.S. Supreme Court.
Marsh, a member of Davis’ legal team from the Washington law firm Arnold & Porter, said there is too much doubt about the eyewitness testimony at the 1991 trial to let Davis be convicted.
Marsh said in a telephone interview today that the eyewitnesses included an man who initially said he could not recognize the shooter except for the clothes he was wearing; a woman who initially said she could not put a face with the shooter; a woman who said she recognized Davis in the dark from more than 120 feet away; and a man who was looking through his car’s tinted windows and said he was only 60 percent sure he could identify Davis.
“You can’t execute someone based on that kind of testimony,” Marsh said. “It’s unconscionable.”
Jennifer Dysart, an eyewitness expert, said she had planned to testify at Monday’s clemency hearing, but the parole board ended Davis’ presentation before she could give her presentation.
In an interview today, Dysart said numerous studies show that eyewitness testimony is unreliable and the procedures used by Savannah police in the Davis investigation would not be allowed today.
“Even if the parole board didn’t believe the recantations, there were significant problems with all the eyewitness testimony,” she said “Nothing reliable should come from that testimony. … I wish the board had heard my presentation.”
In Savannah this morning, about 18 supporters gathered outside Chatham County District Attorney Larry Chisolm’s office to present 240,000 signatures of people asking for clemency. Organizer Sister Jackie Griffith said the group hopes Chisolm can use any influence he may have to urge Chatham Superior Court Judge Penny Freesemann to halt the execution.
“We believe anyone who has power should use it for justice,” said Griffith, a Catholic nun who has worked to stop Davis’ execution since 1998. She said she was drawn to the case because she believes all life is sacred, “whether it’s a guilty life or an innocent life.”
“We’re very prayerful and dogged in our efforts…we’re always hopeful, but hope comes with reality,” she added.
Holding a sign that read “Justice for Troy Davis, Too Much Doubt,” supporters Denise Chaney and Valdara Wall chatted about the case, referencing the man who was with Davis around the time of the shooting, Sylvester “Redd” Coles, who is rumored to have admitted in recent years to have murdered Officer Mark Allen MacPhail.
“When Redd finally comes forth and admits it, how are they going to bring Troy back?” Wall asked.
Supporter Sharon Burrell said she has worked on behalf of Troy Davis since 2009. She said she hopes the MacPhail family can have some peace, but that it can’t be achieved through Davis’ death.
“I sure know it won’t bring closure for the family. They say it will, but it won’t because it’s taking another a life,” she said.
Chisolm did not meet with the group, but the supporters delivered the boxes of signatures to a representative before ending their rally with prayer. Moments later, the group boarded a bus bound for Jackson, where they plan to hold vigil in Davis’ final hours.
Tuesday evening, Marsh had expressed hope that prison officials would allow Davis to take a polygraph test.
But Davis also wanted some assurance from the parole board that it will take his test into consideration, Marsh said, adding that Davis was not going to spend hours away from his family on what could be the last day of his life if taking the test was not going to make any difference.