The three-judge panel of the 11th U.S. Circuit Court of Appeals rejected Troy Davis’ calls for a new trial on grounds he did not kill Mark MacPhail in 1989. The 2-1 decision also postponed his oft-delayed execution 30 days so he can appeal.
The ruling dashed the hopes of supporters who contended that the court should grant the 40-year-old, who was convicted in 1991, a new trial to explore the testimony. It bars him from filing a new appeal that contends he is innocent.
“Davis has not presented us with a showing of innocence so compelling that we would be obliged to act today,” read the panel’s ruling. “Rather, the record, including all of the post-trial affidavits, is, at best, tortured and difficult.”
Davis’ attorney Jason Ewart said he planned to appeal the decision to the U.S. Supreme Court. He noted that Thursday’s ruling now means four judges — three from the Georgia Supreme Court and one federal appeals judge — have cast doubt on the execution.
“I can only say that if the 10 judges who have reviewed the case in the last two years were on Troy’s jury, Troy would have never been convicted as four of those judges have stated his execution is unconscionable,” he said.
The bitter legal arguments unfolded after MacPhail, who was working off-duty as a security guard at a bus station, rushed to help a homeless man who had been pistol-whipped at a nearby parking lot. The 27-year-old was shot twice when he approached Davis and two other men.
Witnesses identified Davis as the shooter in the 1991 trial, and prosecutors said he wore a “smirk” as he fired the gun. He was convicted of murder and sentenced to death.
But Davis’ supporters — including former President Jimmy Carter and a range of other prominent advocates — have pressed for a new trial because seven of the nine key witnesses against him have recanted their testimony.
And they say three others who did not take the stand have said another man who testified against Davis at his trial confessed to the killing.
Prosecutors, meanwhile, consider the case closed and cast doubt on the new evidence. Former Savannah District Attorney Spencer Lawton said the new testimony is “very difficult to believe” because it could have been manipulated.
Concerns over the case have led to three postponements of Davis’ execution, the first in July 2007 when Georgia’s pardons board delayed it less than 24 hours before it was to be carried out.
A divided Georgia Supreme Court twice rejected Davis’ request for a new trial — both by 4-3 votes — and the pardons board turned down another bid for clemency after considering the case again.
As corrections officers prepared for Davis’ scheduled Sept. 23 execution, the Supreme Court issued a stay to consider whether to grant him another hearing. A few weeks later, the court cleared the way for the execution when it decided against hearing the case.
As the clock ticked toward another execution, Davis’ attorneys convinced the federal appeals court to stay the execution again — this time to hear arguments over whether federal law allows Davis’ attorneys to call for a new trial at all.
At a hearing in December, they urged the court to grant him a new trial because it was “constitutionally intolerable” to execute Davis without hearing the fresh innocence claims.
State prosecutors countered by arguing that Davis’ attorneys had much of the evidence during the 1991 trial, and that if they could prove he was innocent, they should have done it then.
The federal panel seemed to agree in its ruling, criticizing Davis for not making the innocence claim earlier. It also concluded Davis has “not even come close” to proving the claim meets strict constitutional guidelines.
In an 11-page dissent, Circuit Judge Rosemary Barkett said the court was losing sight of the underlying issue: Whether Davis could be executed when “no court has ever conducted a hearing to assess the reliability of the scores of affidavits” that could lead to his freedom.
For MacPhail’s family, the panel’s decision was another step toward closure.
“I’m glad we went over that hurdle right now and that they turned it down,” said Anneliese MacPhail, the slain officer’s 75-year-old mother. “Now I’m just waiting for the next bomb to fall. The last two years have been an absolute nightmare — I just want to get it over with.”
Critics, meanwhile, said the decision brings Georgia one step closer to executing an innocent man. Stephen Bright of the Southern Center for Human Rights said the ruling meant the court believes it’s “more important to get it over than to get it right.”
“The judges have completely lost sight of justice,” he said. “They are lost in a maze of procedural rules that obscure the truth instead of revealing it.”