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Convicted Cop Killer to Get Second Chance at Freedom?

Convicted Cop Killer to Get Second Chance at Freedom?

In this Jan. 16, 1991 file photo, Troy Anthony Davis enters a courtroom for a hearing while on trail for the shooting death of off-duty police officer Mark MacPhail. [AP]

Atlanta Journal Constitution via YellowBrix

June 23, 2010

ATLANTA – Troy Anthony Davis returns today to Savannah, where he was convicted and sentenced to death almost two decades ago for killing an off-duty police officer during a late-night melee.

For more than a decade, Davis has sought to present in open court his claims of innocence, including the testimony of seven key prosecution witnesses who have recanted or contradicted their trial testimony. Today in U.S. District Court in Savannah he will get that chance, thanks to an extraordinary ruling last year by the nation’s highest court.

Before today’s hearing, spectators and members of the news media hoping to get a seat began forming a line outside the federal courthouse before 6 a.m. Davis arrived shortly before 7 a.m., accompanied by an armed escort of Chatham County police officers.

Vigils and rallies were held Tuesday night in Savannah and Atlanta on behalf of Davis and slain Savannah Police Officer Mark Allen MacPhail.

Davis’ innocence claims have attracted international attention, including former President Jimmy Carter and Pope Benedict XVI urging that he be spared from execution. In recent years, Davis’ scheduled execution has been halted three times — on one occasion just two hours before he was to be put to death by lethal injection.

Last August, for the first time in nearly half a century, the U.S. Supreme Court took a case filed directly to its docket, instead of hearing an appeal of a lower-court ruling. It accepted Davis’ last-ditch innocence claim after Davis had exhausted all his appeals.

The high court ordered a federal judge to convene a hearing to determine whether Davis’ new claims “clearly establish” his innocence.

“Certainly, Mr. Davis and his attorneys have a very difficult burden ahead of them,” said Howard Bashman, a Philadelphia attorney who operates a Web site devoted entirely to appellate litigation. “They have to show far more than there are serious doubts over the validity of the conviction. They have to show that the new evidence clearly establishes Mr. Davis’ innocence.”

Still to be decided is what standard U.S. District Judge William T. Moore Jr., who will preside over the hearing, will use to evaluate Davis’ new innocence claims.

Must Davis prove by clear and convincing evidence that he is innocent so the judge is convinced he did not commit the crime, asked Georgia State University law professor Anne Emanuel. Or does Davis have to show that no reasonable person, after looking at the newly discovered evidence, could find him guilty beyond a reasonable doubt?

“The case does present, in very stark terms, the tension between justice and finality,” Emanuel said.

Until the U.S. Supreme Court stepped in, Davis’ attempts to get his new evidence presented in court had been repeatedly stymied by the federal Antiterrorism and Effective Death Penalty Act, legislation enacted in 1996 to streamline appeals of capital sentences.

But Davis’ case may now force the U.S. Supreme Court to decide whether the Eighth Amendment’s ban against cruel and unusual punishment also bars the execution of an inmate who has been convicted and later proved he is innocent, a claim the high court has never recognized.

Since the 1991 trial, a number of prosecution witnesses who testified they saw Davis shoot and kill MacPhail on Aug. 19, 1989, have backed off that testimony. Others who testified Davis told them he fired the fatal shots also have recanted. Two of those seven prosecution witnesses will not attend Wednesday’s hearing, however, because they are now deceased.

Other witnesses expected to testify Wednesday have come forward since the trial and said that Sylvester “Redd” Coles, another man at the scene that night, admitted to them he was the actual shooter. Coles, who testified at trial and was the first person to implicate Davis to police, has denied being the gunman.

Coles has not recanted his trial testimony. Another witness, Stephen Sanders, saw the shooting when he was parked nearby with his Air Force buddies. Sanders initially told police he could not identify anyone at the scene, only the clothes they were wearing. But at trial two years later Sanders identified Davis as the killer.

Neither Coles nor Sanders is on the witness lists provided by lawyers for Davis and the state attorney general’s office. Davis’ lawyers have identified 14 witnesses they plan to call. The state has said it will call 17 witnesses, many of them officers who investigated the case and members of the prosecution team.

MacPhail, a 27-year-old former Army Ranger and father of two, was gunned down when he ran to a Burger King parking lot after hearing pleas from a homeless man who was being pistol-whipped. MacPhail was shot three times before he could draw his weapon.

When the high court ordered the hearing last August, Justice John Paul Stevens noted that no state or federal court had heard Davis’ new testimony and assessed its reliability. “The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing,” wrote Stevens, who was joined by Justices Ruth Bader Ginsburg and Stephen Breyer.

Justice Antonin Scalia, joined by Justice Clarence Thomas, dissented, calling the hearing a “fool’s errand” because Davis’ innocence claim is “a sure loser.”

Moore is not expected to make an immediate ruling. He has said he wants the parties to file legal briefs after the hearing is over. He also told lawyers for both sides that he has already read the trial record and the legal pleadings in the case and expects attorneys to enter his courtroom and “immediately” begin presenting their evidence.

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