Executed September 21, 2011 11:08 p.m. by Lethal Injection in Georgia
35th murderer executed in U.S. in 2011
1269th murderer executed in U.S. since 1976
4th murderer executed in Georgia in 2011
52nd murderer executed in Georgia since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
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(35) |
Troy Anthony Davis B / M / 20 - 42 |
Mark Allen MacPhail OFFICER W / M / 27 |
Citations:
Davis v. State, 263 Ga. 5, 426 S.E.2d 844 (Ga. 1993). (Direct Appeal)
Davis v. Turpin, 273 Ga. 244, 539 S.E.2d 129 (Ga. 2000). (State Habeas)
Davis v. Terry, 465 F.3d 1249 (11th Cir. 2006). (Federal Habeas)
Final/Special Meal:
Declined.
Final Words:
"I'd like to address the MacPhail family. Let you know, despite the situation you are in, I'm not the one who personally killed your son, your father, your brother. I am innocent. The incident that happened that night is not my fault. I did not have a gun. All I can ask ... is that you look deeper into this case so that you really can finally see the truth. I ask my family and friends to continue to fight this fight. For those about to take my life, God have mercy on your souls. And may God bless your souls."
Internet Sources:
Georgia Department of Corrections
Troy Anthony DavisCASE NO: 284361
OFFENSE: POSS OF FIREARM DUR CRIME, OBSTR OF LAW ENF OFFICER, AGGRAV ASSAULT, AGGRAV ASSAULT, MURDER
CONVICTION COUNTY: CHATHAM COUNTY
CRIME COMMIT DATE: 08/19/1989
SENTENCE LENGTH: 05 years, 05 years, 20 years, 20 years, DEATH
INCARCERATION BEGIN: 09/13/91
"Watching an execution: AJC reporter was inside the death chamber," by Rhonda Cook. (09-22-11)
Just after 10:30 Wednesday night two words stopped the conversation among reporters instantly. “Y’all ready?” a correctional officer asked. We were moments away from witnessing an execution. Media witnesses are as much a part of the execution process as the officers who escort the inmate to the death chamber or the officers who strap the condemned to a gurney.
Wednesday, we were there as unbiased witnesses, sitting on the back row. Our seats were behind those there on behalf of the condemned and those who prosecuted or arrested Troy Davis for the 1989 murder of Savannah police officer Mark Allen MacPhail. The dead officer’s son and namesake, Mark MacPhail Jr., and his brother, William MacPhail, were there for the family. We spoke little from that moment on, the five reporters selected to witness the execution.
As the officer called our names, we lined up and left the room where we had waited for so long, oblivious to the last-ditch effort to spare Davis and the police presence and protests beyond the prison's walls. In the death chamber, we took our seats on the last of three pews.
Warden Carl Humphrey began the process by reading the execution order signed by Chatham County Judge Penny Haas Freesmann. "The court having sentenced defendant Troy Anthony Davis on the third day of September, 1991, to be executed….” Then he asked Davis if he has any final words. Yes, the condemned man said and he raised his head so he could look at Mark MacPhail Jr., who was an infant when his father was murdered, and William MacPhail, the dead officer’s brother. “I’m sorry for your loss,” Davis said.
Mark MacPhail, who was leaning forward, and his uncle did not move. They stared at the man who killed their loved one. “I did not personally kill your son, father and brother,” Davis said. “I am innocent. “ He asked his family and friends to continue to search for the truth. And to the prison officials he said “may God have mercy on your souls. May God bless your souls.” He then lowered his head. He turned down an offer for a prayer.
Within minutes, Troy Anthony Davis slipped out of consciousness and in 14 minutes he was dead. A three-drug cocktail ended his life. First pentobarbital put Davis in a drug-induced coma. The paralytic pancuronium bromide was second. Potassium chloride stopped Davis’ heart. “The court ordered execution of Troy Anthony Davis was carried out in accordance with the laws of the state of Georgia,” the warden announced. Curtains in the death chamber were closed and we were quickly ushered out.
Waiting for us at the media staging area was a line of correctional officers, deputy sheriffs and state troopers blocking protesters from crossing Georgia Highway 36 onto prison property and hoards of local, national and international reporters waiting for the reporters who witnessed the execution to describe what happened. He went peacefully, one of the reporters said.
"Davis' last day: A goodbye to family," by Rhonda Cook. (September 21, 2011)
Troy Anthony Davis is preparing to die for the fourth time today. Davis' day will run according to a schedule the Department of Corrections follows in the hours leading up to an execution -- a final goodbye to family, a last meal, the chance for Davis to make a final statement. Then, at 7 p.m., he is scheduled to die by lethal injection for the 1989 shooting death of off-duty police officer Mark MacPhail.
Three previous times Davis has been scheduled to die. In 2007 his execution was called off the day before. . In 2008 he came within 2 1/2 hours of dying when the U.S. Supreme Court stopped it. And again in 2008 the federal court of appeals stopped the execution three days before he was to die. This time, however, he has exhausted all his appeals.
"We’ve been here before. We’re just hoping it will go all the way through this time,” said Mark MacPhail Jr., who was an infant in 1989 when his father and namesake was shot to death in a Savannah Burger King parking lot.
For the most part, activity today at the Diagnostic and Classification Prison, the home for all Georgia executions, will be as it has been for 28 previous executions. According to prison policies, Davis was put on "death watch" days ago, with an officer assigned to watch him at all times to ensure he does not try to take his own life. Anonymous members of the prison's execution team have rehearsed their respective roles. Today, officers -- even those not directly assigned to the execution -- will remove any badges or patches that identify them. .
Davis and his family will have six hours together -- 9 a.m. until 3 p.m. -- in a special visitation room before they say "good-bye." After his family leaves the prison for the last time, that is when officials begin the final preparations for his death.
Davis will get a physical and clean clothes at 3 p.m., and an hour later his final meal. Davis has asked to have the same thing for dinner that the rest of the 2,100 inmates will have Wednesday – a cheeseburger, potatoes, baked beans, slaw, cookies and a grape drink. At 5 p.m. Davis can make a recorded final statement, one that is longer than the one he can make once he is strapped to the gurney in the death chamber.
He will be allowed to pass the time listening to music, reading, watching television and talking on the telephone. And all the while a prison guard will take meticulous notes of everything he does, how much he eats or doesn't eat and his mood. An hour before he is scheduled to die, Davis will be offered a sedative to calm him.
That also is the time when five reporters will be loaded into a van and driven to the prison where they will wait, down the hall from other witnesses, until they are taken to the death chamber behind the massive prison. One by one, they will be led into the view area – first the witnesses for the state, then Davis’ witness and finally the media witnesses.
Mark MacPhail Jr. and his uncle, William MacPhail, will be in the death chamber to represent the family. Mark MacPhail said his older sister's emotions wouldn't let her witness the execution and his mother and grandmother didn't want to watch. "I was the only family member willing to," said the 22-year-old. Once the witnesses are seated, Davis will be placed in view with IVs in both arms. The warden will read the death warrant and Davis will be offered a chance for final words. The lethal injection process will begin, injecting a cocktail of drugs in Davis that will kill him within minutes.
"Davis appeals fail; executed for ‘89 murder," by Bill Rankin and Rhonda Cook. (09-21-11)
Troy Anthony Davis, who maintained his innocence until the end, was executed late Wednesday night after the nation’s highest court rejected his final appeal. Davis, 42, was declared dead at 11:08 p.m., but his execution did not put to rest widespread doubts about whether he committed the crime for which he was punished – the 1989 murder of off-duty Savannah Police Officer Mark Allen MacPhail, a father of two young children and a former Army Ranger. His death-penalty case was one of the most bitterly contested and controversial in Georgia history.
Strapped to the lethal-injection gurney, Davis lifted his head and looked at the MacPhail family, and said, "The incident that night was not my fault, I did not have a gun. ... I did not personally kill your son, father and brother. I am innocent." He then said for "those about to take my life, may God have mercy on your souls, may God bless your souls." When Davis addressed members of the MacPhail family who witnessed the execution, they said nothing, but did not look away.
MacPhail’s family and the prosecutors who put Davis on death row steadfastly stood behind Davis’ conviction as his innocence claims attracted worldwide attention and the calls from dignitaries and celebrities for Davis to be spared. But while Davis may have made thousands wonder if he was a true cop killer, he could not convince the justice system to halt his execution. "I'm not joyous," MacPhail's mother, Anneliese MacPhail, said. "I'm feeling a little bit relieved. It has been a long, long battle. I'd like to close the book."
Brian Kammer, one of Davis' lawyers, said the state may have executed an innocent man. "I think Georgia has shamed itself in a very profound way by failing to err on the side of life when there is meaningful, significant doubt," he said. This was the fourth time Davis faced execution. On the three prior occasions, he received stays. But a succession of court decisions issued Wednesday denied Davis' final bids.
The Georgia Supreme Court unanimously declined to stop the execution about two hours before it was to be carried out. Davis' scheduled 7 p.m. execution was put on hold for more than three hours as the U.S. Supreme Court considered his final bid.
The scene outside the state prison in Jackson was unlike any other in past executions. Television satellite trucks and media cars parked bumper to bumper. A crowd of death-penalty opponents swelling into the hundreds -- but dwindled at the evening wore on -- rallied outside and held vigils in an area set aside for them. A news conference organized by Amnesty International and the NAACP at a nearby church resembled a tent-revival meeting.
As the high court deliberated past the scheduled execution time, a dozen Georgia state troopers in riot gear raised tensions when they marched in military formation between protesters and other officers in paramilitary gear stationed just outside the prison. The troopers were met by choruses of “Shame on you” from the protesters.
Benjamin Jealous, head of the NAACP, predicted Davis’ case would be a “game-changer for the death-penalty debate” and make jurors more reluctant to send killers to death row for fear they might be making a mistake.
As the day wore on and Davis’ execution neared, he met with family members and friends. He declined the opportunity offered all condemned inmates to give a final, recorded statement. He was given a tray with a cheeseburger, potatoes, baked beans, coleslaw and cookies but did not eat a last meal, a prison spokeswoman said.
This week, Davis’ legal team mounted an aggressive effort to try and stop the execution. It first asked the state Board of Pardons and Paroles to grant Davis clemency, a request that was denied Tuesday. The lawyers, joined by U.S. congressmen, former Department of Corrections officials and the Innocence Project, asked the parole board to reconsider. The board denied that as well.
Davis’ lawyers next asked the Department of Corrections to let Davis take a polygraph test, but they were rebuffed at the prison gate on Wednesday morning. “We came here to try and prove Mr. Davis is innocent and unfortunately we were denied that opportunity by the Department of Corrections,” said Stephen Marsh, one of Davis’ lawyers, after he was turned away from the prison in Jackson, about 50 miles south of Atlanta.
Davis’ supporters even called for President Barack Obama to stop the execution, though only the state parole board or a court could do so. At a Monday news conference, White House spokesman Jay Carney, when asked about Davis’ case, declined to weigh in. “Well, as you know, the president has written that he believes the death penalty does little to deter crime but that some crimes merit the ultimate punishment,” Carney said. He referred questions about the pending Davis execution to the U.S. Justice Department.
The case was one of the most popular topics throughout Wednesday on the social media Twitter site.
MacPhail, 27, was moonlighting on a security detail shortly after midnight on Aug. 19, 1989, when he rushed to help a homeless man who had cried out while he was pistol-whipped in a Burger King parking lot. MacPhail was shot three times before he could draw his gun. One witness said the killer wore a “smirky-like smile” and stood over the fallen officer, firing again and again, including once in MacPhail’s face.
Sylvester “Redd” Coles, who accompanied Davis to the scene, was the first to implicate Davis to police. Other witnesses said they either saw Davis fire the fatal shots or identified Davis as the killer by the clothes he wore. Davis was tried, convicted and sentenced to death during a 1991 trial.
In ensuing years, however, several key prosecution witnesses renounced or backed off their trial testimony, while others issued sworn statements that said Coles had told them he was the actual trigger man. Coles, once asked by The Atlanta Journal-Constitution about the accusations, declined to comment. At trial, he testified that he left the immediate crime scene before he heard shots fired.
The new testimony and evidence gained notoriety because the murder weapon was never found, and no DNA, fingerprint or blood evidence tied Davis to the killing. At least three jurors who sentenced Davis to death recently signed sworn statements that said they now had doubts about their verdicts and asked that Davis be spared execution.
People arrived outside the prison in buses, including some who accompanied Al Sharpton and his National Action Network from Atlanta. A.C. Dumas traveled to Jackson from Flint, Mich., to rally support for Davis. “I think you have to correct the mistake — that is why you have erasures,” Dumas said. “This is a threat of injustice and needs to be corrected.”
Organized by Amnesty International and the NAACP, a news conference held at Towaligia County Line Baptist Church near the jail better resembled a tent revival meeting. Among the speakers were Big Boi of the musical group Outkast and Martina Correia, Davis’ eldest sibling, who has been the most outspoken champion of his cause.
The wheelchair-bound Correia, who is battling breast cancer, said she deeply believed in her brother’s innocence and contended his case should be reason for abolishing the death penalty. “Troy said this movement did not begin with him and will not end with him,” she said. “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, whose legal name is Antwan Patton and who was raised in Savannah. “There is too much doubt.”
About 400 Troy Davis supporters gathered in front of the state Capitol Wednesday night in a vigil calling for a stay of execution. Some carried “I Am Troy Davis” banners, held candles, sang and prayed.
"A mother's vigil," by Craig Schneider and Victoria Loe Hicks. (September 21, 2011)
COLUMBUS -- "It might be over this time." Those six words from Anneliese MacPhail, scribbled by a friend and left lying on the kitchen table, held 22 years of grief and anger. "I'm a nervous wreck," MacPhail announced at 6:35 p.m., as the clock ticked down toward the scheduled execution of the man convicted of killing her youngest son.
As 7 p.m. came and went with no execution, the mother, long a widow, waited a wait she had endured three times before. At 77, she waited with a steel-spined determination to see justice -- justice by her own lights -- done no matter how long the wait. Surrounded by family, friends and dozens of framed family photos, she smoked, in her own words, "like a steam engine" and sat by the phone. It rang incessantly, but not with the news she wanted, the news from the prison that would put the waiting behind her.
Instead, some of the calls were from people who wanted to berate her for being party to the killing of Troy Davis, a man they believed to have been wrongly convicted. She didn't shrink from answering them back. Let them tell her she had blood on her hands, she said defiantly. Let them challenge her any way at all. "I know what I'm doing," she said. "They're trying to intimidate me. I don't go that route."
The phone was her umbilical cord to the outside world, her only source of news. The TV was off; the local station was not covering the execution vigil live. Earlier in the evening, when the protests over Davis' impending execution dominated the national news, she had watched and talked right back at the talking heads. "That's what you think," she barked at the Rev. Al Sharpton when he proclaimed that killing Davis would be a miscarriage of justice.
All around her, the house spoke tales of a family devoted to military and police service. In a bedroom was a blanket emblazoned with the words: "Freedom is not free." In the living room, amidst the photos -- Mark graduating from high school, Mark in his Army Ranger uniform -- sat a shadowbox containing a gold police shield, a gift from an admirer. Mark's real shield she carries in her purse: Savannah Police Department, Officer 212.
Outside, TV camera crews camped on the front lawn. In the living room, MacPhail fingered the photos of Mark as her 11-month-old great-grandson, Grayson, crawled about on the rug. His mother, Mandy Winningham, was 7 when her uncle Mark was killed. After all these years of struggle and controversy, it's hard she said, to remember the good times.
In the kitchen, 82-year-old Helen Edwards sat knitting dish towels. Edwards, who also lost a son to murder, met MacPhail through a support group for crime victims. She has little use for Davis' supporters, she said, even the Pope or former President Jimmy Carter. If she met them on the street, she said, "I would make a face."
As Edwards knitted, MacPhail went outside to stand stoically in the front yard with a crew from CNN. Sheltered by an umbrella from the pouring rain, she waited for Anderson Cooper to be ready to do a remote interview. "Dear," she called him, when the interview finally commenced. Off camera, as the clock ticked past 8, past 8:30, past 9, she waited. "I don't hate him," she said of Davis. "The hate is gone. He disgusts me."
9:30 ... 9:45 ... 10:00 ... the wait stretched on. But soldiers know how to wait. "I want my justice," she said. "I just want it done." 10:19, the phone rang. "Thank you," MacPhail said to the voice on the other end.
Turning to Edwards and Winningham, she thrust her fists into the air. "It's going ahead," she said. 11:08, the phone rang again. She picked it up and listened. Putting it down, she said slowly and with emphasis: "It is over."
Troy Davis: The time line. (September 22, 2011 - 1:45pm)
1989
Aug. 19: Officer Mark Allen MacPhail is shot twice while trying to break up a fight.
Aug. 20: Police conduct two raids searching for the suspect, Troy Anthony Davis.
Aug. 22: Even as MacPhail’s funeral is held, officers continue to work the case.
Aug. 23: Davis surrenders after negotiations between police and Davis’ family. Davis had fled to Atlanta.
Nov. 15: Davis is indicted on murder, aggravated assault, and possession of a firearm.
1990
Jan. 16: The formal request for the death penalty triggers the state’s uniform procedures.
April 30: Davis’ lawyers enter a plea of not guilty. They also request a change of venue.
July 30: Trial is set for October.
Oct. 12: The trial is postponed to December. Davis’ lawyers request a psychological evaluation.
Nov. 9: Judge James W. Head bans evidence seized during a search of the home of Davis’ mother.
Nov. 15: Prosecutors ask to delay Davis’ trial while they appeal the banning of evidence. Granted.
1991
May: Georgia Supreme Court upholds the ban on evidence seized by officers during the raid.
1992
Feb. 18: Lawyers present their arguments for a new trial.
1993
1994
2006
2007
April 12: Lawyers for Davis file a final appeal with the U.S. Supreme Court.
July 12: Prosecutors argue the “new” evidence is old.
Aug. 3: The Georgia Supreme Court agrees to hear an appeal for a new trial.
2008
Mar. 17: The Georgia Supreme Court rejects Davis’ contention that witness recantations should allow a new trial. They reject his request a second time in April.
Sept. 3: Davis’ execution is set for Sept. 23.
2009
April: The 11th U.S. Circuit Court rejects Davis’ appeal.
Aug. 17: The U.S. Supreme Court rules the U.S. District Court for the Southern District of Georgia must hear evidence in the case.
2010
January: Davis’ lawyers seek police files in the case saying they hold evidence not presented.
2011
March 28: The U.S. Supreme Court rejects Davis’ two-pronged appeal.
Sept. 15: 600,000 petitions are delivered to the Board of Pardons and Paroles.
"Troy Davis supporters seek next step after execution," by Greg Bluestein. (AP September 22, 2011)
ATLANTA (AP) — Minutes before he was put to death, Troy Davis asked his supporters to "continue to fight this fight" — but will they, and how?
The Georgia inmate's case outraged hundreds of thousands of people around the world who found the evidence against him weak, and opponents of the death penalty hope their anger provokes a backlash against capital punishment. Some activists say a fitting legacy of the case would be laws that bar death sentences for those, like Davis, whose convictions are based on eyewitness testimony.
With Davis gone, however, the loose coalition of groups who pushed for his freedom may simply crumble. Much may depend not on the death penalty's most strident opponents, but on less politically active people who were drawn into the debate by Davis' two-decade struggle.
That includes Melvin Middleton, who believes capital punishment can be appropriate. After learning more details about Davis' case, he decided to show up at a downtown Atlanta rally opposing the execution.
"If you're going to take someone's life, you better be damn sure you are making the right decision," he said. "I don't know if he's guilty or not, but he's not proven guilty."
Davis was executed late Wednesday for the 1989 murder of off-duty Savannah police officer Mark MacPhail. Defense attorneys said several key witnesses disputed their testimony and other people claimed that another man confessed to the crime, but state and federal courts repeatedly upheld the conviction.
Davis maintained his innocence even as he was strapped to a gurney in the death chamber, where he told the MacPhail family to "look deeper into this case so that you really can finally see the truth."
Prosecutors and MacPhail's relatives say they have no doubt that justice was done, but among Davis' supporters, frustration runs deep.
"We did not want to lose Troy Davis as a casualty of this war, but I do think that his execution in a real sense will only add momentum to the movement of those of us who understand that the state really cannot be trusted with the ultimate punishment," said the Rev. Raphael Warnock, who spoke on Davis' behalf at a pardons board hearing this week.
Already, there are calls for lasting changes to the capital punishment system from Davis' advocates. Former President Jimmy Carter said he hopes "this tragedy will spur us as a nation toward the total rejection of capital punishment." Filmmaker Michael Moore posted a statement on his website calling for a boycott of Georgia.
The Rev. Al Sharpton, who visited Davis on death row, said he will push for a national ban on capital punishment in cases that rely on eyewitness testimony. Maryland passed such a law in 2009.
"We must not only mourn what happened to Troy Davis but take strong measures so that it does not happen again," Sharpton said.
The Davis execution comes at a time when death penalty decisions are under increased scrutiny. The number of executions has dropped by half over the last decade, from 98 in 1999 to 46 in 2010. Illinois abolished capital punishment in March and several other states, including California and Connecticut, are expected to consider similar proposals next year.
More than 3,200 U.S. inmates were on death row at the beginning of 2011, according to the Death Penalty Information Center.
Public support for capital punishment remains strong, according to several polls. This month, a CBS/NY Times poll found that 60 percent of those surveyed supported the death penalty for people convicted of murder, with 27 percent opposed and 13 percent unsure. Gallup polls over the past two decades have shown slightly higher support, though Gallup found Americans to be closely divided when asked to choose between the death penalty and life imprisonment with no chance of parole.
Laura Moye of Amnesty International said she expects the Davis execution to be used to rally repeal movements across the country. She plans to meet with activists in Georgia over the next few days to plot out an attempt to banish capital punishment there.
"I'm meeting people who didn't really ever speak about the death penalty and now they are. They're hungry about the information and now they know," she said.
It's far from clear, however, whether the thousands who rallied and the hundreds of thousands who signed petitions on Davis' behalf will become any kind of political force. Organizers have announced few concrete steps, and legislative proposals have yet to take shape.
"The emotion of the moment passes and unfortunately so does the urgency to address these issues," said Bruce Barket, a New York criminal defense attorney who specializes in investigating wrongful convictions.
Spencer Lawton, the Savannah prosecutor who helped convict avis, said the case shouldn't morph into a broader debate about capital punishment.
"Whether you are for or against the death penalty case is irrelevant in this case," he said. "You shouldn't be making Troy Davis into a vehicle for you to distort the truth, and that's what I think is going to happen. Whether you are for or against the death penalty, this has been a clear and fair and honest proceeding throughout. If you don't like the result, don't attack the proceeding falsely."
"Hundreds march in Georgia to oppose Troy Davis execution, by David Beasley. (Fri, Sep 16 2011)
ATLANTA (Reuters) - More than 2,000 activists chanting and toting banners joined a march and rally on Friday to oppose the execution of Georgia death row inmate Troy Davis, convicted of the 1989 murder of a Savannah police officer.
Georgia's Board of Pardons and Paroles is slated to meet Monday to consider whether to stop Davis' execution by lethal injection, which is scheduled for next Wednesday.
"I pray that this rally will have an impact on Pardons and Paroles," said marcher Solana Plaines, from Savannah. "I hope they will do the right thing."
Davis' supporters say there is no physical evidence linking him to the crime and that key witnesses in his trial have since recanted their testimony.
"You just can't give up hope," said Ellen Kubica, who traveled from her home in Germany to attend Friday's event, which featured banners reading: "Too much doubt to execute.
Davis' supporters marched from downtown Atlanta to Ebenezer Baptist Church on Auburn Avenue for a rally.
Martin Luther King III, son of the late civil rights leader Martin Luther King Jr., joined the march. His father and grandfather were pastors at Ebenezer.
Ben Jealous, president of the National Association for the Advancement of Colored People, and the Rev. Al Sharpton, a civil rights activist and television show host, also attended.
"The only thing left to decide is whether you have the courage to do the right thing," Sharpton said, referring to the Georgia parole board.
"It is blatantly clear that there is no reason for this man to be sitting on death row," he added.
In a rare move, the U.S. Supreme Court in August 2009 ordered a new hearing for Davis to assess what he said was new evidence showing his innocence.
The justices transferred the case to a U.S. District Court in Georgia for a hearing and determination of his claims that new witnesses will clearly establish his innocence. A year later, the judge, William T. Moore Jr., rejected Davis' claims of innocence.
On Thursday, supporters of the condemned man delivered petitions bearing more than 600,000 names to the parole board.
In an opinion column published on Thursday in the Atlanta Journal Constitution newspaper, former FBI Director William Sessions called for Davis' sentence to be commuted to life in prison, saying the case was "permeated in doubt."
In an opposing column written in late 2008 and republished on Thursday, Spencer Lawton, the district attorney who prosecuted Davis, said the condemned man had a fair trial.
The claim that seven witnesses at the trial had subsequently recanted their testimony was "not believable," Lawton wrote.
Lawton said the witnesses were all cross-examined by defense attorneys during Davis' trial and denied that they had been coerced by police.
"Troy Davis executed for killing off-duty police officer." (Associated Press Sept. 21, 2011)
JACKSON, Ga. — Georgia executed Troy Davis on Wednesday night for the murder of an off-duty police officer, a crime he denied committing right to the end as supporters around the world mourned and declared that an innocent man was put to death.
Defiant to the end, he told relatives of Mark MacPhail that his 1989 slaying was not his fault. “I did not have a gun,” he insisted.
“For those about to take my life,” he told prison officials, “may God have mercy on your souls. May God bless your souls.”
Davis was declared dead at 11:08. The lethal injection began about 15 minutes earlier, after the Supreme Court rejected an 11th-hour request for a stay.
The court did not comment on its order, which came about four hours after it received the request and more than three hours after the planned execution time.
Though Davis’ attorneys said seven of nine key witnesses against him disputed all or parts of their testimony, state and federal judges repeatedly ruled against granting him a new trial. As the court losses piled up Wednesday, his offer to take a polygraph test was rejected and the pardons board refused to give him one more hearing.
Davis’ supporters staged vigils in the U.S. and Europe, declaring “I am Troy Davis” on signs, T-shirts and the Internet. Some tried increasingly frenzied measures, urging prison workers to stay home and even posting a judge’s phone number online, hoping people will press him to put a stop to the lethal injection. President Obama deflected calls for him to get involved.
“They say death row; we say hell no!” protesters shouted outside the Jackson prison where Davis was to be executed. In Washington, a crowd outside the Supreme Court yelled the same chant.
As many as 700 demonstrators gathered outside the prison as a few dozen riot police stood watch, but the crowd thinned as the night wore on and the outcome became clear. The scene turned eerily quiet as word of the high court’s decision spread, with demonstrators hugging, crying, praying, holding candles and gathering around Davis’ family.
Laura Moye of Amnesty International said the execution would be “the best argument for abolishing the death penalty.”
“The state of Georgia is about to demonstrate why government can’t be trusted with the power over life and death,” she said.
About 10 counterdemonstrators also were outside the prison, showing support for the death penalty and the family of Mark MacPhail, the man Davis was convicted of killing in 1989. MacPhail’s son and brother attended the execution.
“He had all the chances in the world,” his mother, Anneliese MacPhail, said of Davis in a telephone interview. “It has got to come to an end.”
At a Paris rally, many of the roughly 150 demonstrators carried signs emblazoned with Davis’ face. “Everyone who looks a little bit at the case knows that there is too much doubt to execute him,” Nicolas Krameyer of Amnesty International said at the protest.
Davis’ execution has been stopped three times since 2007, but on Wednesday the 42-year-old ran out of legal options.
As his last hours ticked away, an upbeat and prayerful Davis turned down an offer for a special last meal as he met with friends, family and supporters.
“Troy Davis has impacted the world,” his sister Martina Correia said at a news conference. “They say, ‘I am Troy Davis,’ in languages he can’t speak.”
His attorney Stephen Marsh said Davis would have spent part of Wednesday taking a polygraph test if pardons officials had taken his offer seriously.
“He doesn’t want to spend three hours away from his family on what could be the last day of his life if it won’t make any difference,” Marsh said.
Amnesty International says nearly 1 million people have signed a petition on Davis’ behalf. His supporters include former President Jimmy Carter, Pope Benedict XVI, a former FBI director, the NAACP, several conservative figures and many celebrities, including hip-hop star Sean “P. Diddy” Combs.
“I’m trying to bring the word to the young people: There is too much doubt,” rapper Big Boi, of the Atlanta-based group Outkast, said at a church near the prison.
The U.S. Supreme Court gave Davis an unusual opportunity to prove his innocence in a lower court last year, though the high court itself did not hear the merits of the case.
He was convicted in 1991 of killing MacPhail, who was working as a security guard at the time. MacPhail rushed to the aid of a homeless man who prosecutors said Davis was bashing with a handgun after asking him for a beer. Prosecutors said Davis had a smirk on his face as he shot the officer to death in a Burger King parking lot in Savannah.
No gun was ever found, but prosecutors say shell casings were linked to an earlier shooting for which Davis was convicted.
Witnesses placed Davis at the crime scene and identified him as the shooter, but several of them have recanted their accounts and some jurors have said they’ve changed their minds about his guilt. Others have claimed a man who was with Davis that night has told people he actually shot the officer.
“Such incredibly flawed eyewitness testimony should never be the basis for an execution,” Marsh said. “To execute someone under these circumstances would be unconscionable.”
State and federal courts, however, have repeatedly upheld Davis’ conviction. One federal judge dismissed the evidence advanced by Davis’ lawyers as “largely smoke and mirrors.”
“He has had ample time to prove his innocence,” said MacPhail’s widow, Joan MacPhail-Harris. “And he is not innocent.”
The last motion filed by Davis’ attorneys in Butts County Court challenged testimony from two witnesses and disputed testimony from the expert who linked the shell casings to the earlier shooting involving Davis. Superior Court Judge Thomas Wilson and the Georgia Supreme Court rejected the appeal, and prosecutors said the filing was just a delay tactic.
The National Association for the Advancement of Colored People, which helped lead the charge to stop the execution, said it considered asking Obama to intervene, even though he cannot grant Davis clemency for a state conviction.
Press secretary Jay Carney issued a statement saying that although Obama “has worked to ensure accuracy and fairness in the criminal justice system,” it was not appropriate for him “to weigh in on specific cases like this one, which is a state prosecution.”
Dozens of protesters outside the White House called on the president to step in, and about 12 were arrested for disobeying police orders.
Davis was not the only U.S. inmate put to death Wednesday evening. In Texas, white supremacist gang member Lawrence Russell Brewer was put to death for the 1998 dragging death of a black man, James Byrd Jr., one of the most notorious hate crime murders in recent U.S. history.
Davis’ best chance may have come last year, in a hearing ordered by the U.S. Supreme Court. It was the first time in 50 years that justices had considered a request to grant a new trial for a death row inmate.
The high court set a tough standard for Davis to exonerate himself, ruling that his attorneys must “clearly establish” Davis’ innocence – a higher bar to meet than prosecutors having to prove guilt. After the hearing judge ruled in prosecutors’ favor, the justices didn’t take up the case.
The execution drew widespread criticism in Europe, where politicians and activists made last-minute pleas for a stay.
Spencer Lawton, the district attorney who secured Davis’ conviction in 1991, said he was embarrassed for the judicial system – not because of the execution, but because it took so long to carry out.
“What we have had is a manufactured appearance of doubt which has taken on the quality of legitimate doubt itself. And all of it is exquisitely unfair,” said Lawton, who retired as Chatham County’s head prosecutor in 2008. “The good news is we live in a civilized society where questions like this are decided based on fact in open and transparent courts of law, and not on street corners.”
"Troy Anthony Davis and Lawrence Russell Brewer: A Tale of Two Executions; The dual executions of Troy Anthony Davis and Lawrence Russell Brewer on Wednesday night raise pressing questions about why Black death row inmates face greater disparities in capital punishment," by Britt Middleton. (09/22/2011)
Wednesday night will be remembered, by many, not as simply the night of Sept. 21, but also as the night of two high-profile executions.
The first execution was of Lawrence Russell Brewer, a white supremacist gang member sentenced to death for the 1998 murder of James Byrd Jr., a black man from East Texas. Byrd, 49, was chained to the back of a pickup truck and violently dragged to his death along a bumpy asphalt road in Jasper, Texas. It would be known as one of the most grisly hate crimes in modern history. Brewer gave no final statement as he was executed on Wednesday night.
The second was of Troy Anthony Davis, who was executed for the 1989 murder of off-duty police officer Mark MacPhail in Savannah, Georgia. The case was contentious and widely reported, as Davis’s defense said that there was too much doubt over whether Davis actually committed the crime. Several witnesses who placed Davis at the crime scene and identified him as the shooter have recanted their accounts and some jurors have said they've changed their minds about his guilt. Others have claimed a man who was with Davis that night has since told people that he actually shot the officer. Davis, who maintained his innocence until the end, had garnered support from private citizens, celebrities and human rights agencies from around the world.
Two death row inmates, executed on the same night — that is where the similarities end. Where the cases diverge is in a new set of questions, revealed by the comparative examination of those cases, that beg to be answered, about the role of race in capital punishment.
According to a 2007 study from Ohio State University, Blacks who kill whites are not only more likely to be sentenced to death row, but are also more likely to be executed.
"There is more than a two-fold greater risk that an African-American who killed a white person will be executed than there is for a white person who killed a non-white victim," writes the study.
“The fact that blacks who kill non-whites actually are less likely to be executed than blacks who kill whites shows there is a strong racial bias here,” said David Jacobs, co-author of the study, in the report. “Blacks are most likely to pay the ultimate price when their victims are white.”
A 2003 report from the American Civil Liberties Union echoes those findings: “The color of a defendant and victim's skin plays a crucial and unacceptable role in deciding who receives the death penalty in America. People of color have accounted for a disproportionate 43% of total executions since 1976 and 55% of those currently awaiting execution. A moratorium of the death penalty is necessary to address the blatant prejudice in our application of the death penalty.”
Presenting another facet to the debate are the contrasting reactions from family members in both cases.
The family of James Byrd, a Black man, took a decidedly gentler stance, saying that they didn’t seek capital punishment for Byrd’s violent death.
“You can't fight murder with murder," Ross Byrd, 32, the son of James Byrd Jr., told Reuters late Tuesday. "Life in prison would have been fine. I know he can't hurt my daddy anymore. I wish the state would take in mind that this isn't what we want."
As the family of Troy Davis prayed for a miracle outside the jail in Jackson, Georgia, the family of Mark MacPhail, the white off-duty officer Davis he was convicted of killing 22 years ago, expressed contentment that they had finally found justice.
"He had all the chances in the world," his mother, Anneliese MacPhail, said of Davis in a telephone interview to the Associated Press. "It has got to come to an end."
Davis' execution had been stopped three times since 2007.
Anneliese MacPhail told the AP that the feelings of relief and peace she has been waiting for all these years will come later. She said she was numb as of Wednesday night.
MacPhail's widow, Joan MacPhail-Harris, said that it's now a time for healing for all families. She says she will grieve for the Davis family.
As all parties move toward the healing process, it is uncertain if and how American lawmakers will interpret what these landmark convictions mean for Blacks on death row.
Davis fled and, when Officer MacPhail, wearing his full police uniform, ordered him to stop, Davis turned and shot the officer in the right thigh and chest. Although Mark MacPhail was wearing a bullet-proof vest, his sides were not protected and the bullet entered the left side of his chest, penetrating his left lung and his aorta, stopping at the back of his chest cavity. Davis, smiling, walked up to the stricken officer and shot him in the face as he lay dying in the parking lot. The officer's gun was still strapped in his holster and his baton was still on his belt.
Davis fled to Atlanta and a massive manhunt ensued. The next afternoon, Davis told a friend that he had been involved in an argument at the restaurant the previous evening and struck someone with a gun. He told the friend that when a police officer ran up, Davis shot him and that he went to the officer and "finished the job" because he knew the officer got a good look at his face when he shot him the first time.
After his arrest, Davis told a cellmate a similar story. He was arrested after surrendering a few days after the murder. Trial began exactly two years to the day of Officer MacPhail's murder. This resulted in Davis' conviction for murder after less than two hours of deliberation by the jury, and in the imposition of a death sentence after seven hours of deliberation. He was also convicted of obstruction of a law enforcement officer, aggravated assault and possession of a firearm during the commission of a felony.
One of the two counts of aggravated assault arose from an incident where Davis shot into a car that was leaving a party an hour before the murder of Officer MacPhail. Michael Cooper was struck in the head by a bullet, severely injuring him and leaving the bullet lodged in his jaw. Ballistics tests matched the shells from the murder of the police officer to shells found at a party earlier in the evening where Michael Cooper had been shot. Cooper identified Davis as the shooter.
Even though the US Supreme Court rejected his final appeal without dissent in June of 2007, Davis received a 90-day stay from the state pardons and parole board just one day before his July 17, 2007 execution date. The stay was granted to examine claims by witnesses that they had given erroneous testimony or were no longer certain about their identification of Davis.
Mark MacPhail's son, 18-year-old Mark Allen MacPhail Jr. spoke against the 2007 stay to members of the Board of Pardons and Parole. "I told them how it felt having him ripped away from me at such an early age. Picture having Father's Day and having no one to give anything to," MacPhail said he told the board. Anneliese MacPhail, mother of the slain officer, commented to a reporter after learning that Davis's request for a new trial was denied in March 2008. "I wonder, what do all those witnesses remember after 18 years? There is no new evidence. No mother should go through what I have been through." Mark's wife Joan MacPhail said she has lost her best friend, the father of her two children and now her peace of mind as appeals for Davis have drawn on for almost two decades. "It's like another punch in the stomach," she said. "You have to relive that night over and over. That's so wrong. Why shouldn't we have peace in our lives?"
About the changing witnesses, the Georgia Supreme Court stated that most of the witnesses who recanted "have merely stated they now do not feel able to identify the shooter." The majority could not ignore the trial testimony, "and, in fact, we favor that original testimony over the new."
The son of a U.S. Army Ranger, Mark MacPhail was a graduate of Columbus High School in Georgia. His mother, Anne, still lives in Columbus, Georgia. Davis received another stay of execution before his September 23, 2008 execution date.
PRESS ADVISORY
Execution Set for Troy Anthony Davis, Convicted of 1989 Murder of Savannah Police Officer
Georgia Attorney General Sam Olens offers the following information in the case against Troy Anthony Davis, who is currently scheduled to be executed on September 21, 2011 at 7:00 p.m.
Scheduled Execution
On September 6, 2011, the Superior Court of Chatham County filed an order, setting the seven-day window in which the execution of Troy Anthony Davis may occur to begin at noon on September 21, 2011, and ending seven days later at noon on September 28, 2011. The Commissioner of the Department of Corrections then set the specific date and time for the execution as 7:00 pm on September 21, 2011. Davis has concluded his direct appeal proceedings and his state and federal habeas corpus proceedings.
Davis’ Crimes
At approximately 1:00 a.m. on Saturday, August 19, 1989, officers of the Savannah Police Department responded to a call of “an officer down” at the Greyhound bus station. (T. 759)[1]. Officers found Mark MacPhail, a 27 year-old Savannah police officer, lying face down in the parking lot of the Burger King restaurant next to the bus station. (T. 759). Officer MacPhail’s mouth was filled with blood and bits of his teeth were on the sidewalk. As he began administering CPR to the victim, Officer Owens noticed that the victim’s firearm was still snapped into his holster. (T. 761).
Larry Young, who was present at the scene, told police that between midnight and 1:00 a.m. he had walked from the Burger King parking lot to the convenience store down the block to purchase beer. (T. 797-798). Sylvester “Red” Coles saw Young leave the pool hall next door and began following Young demanding a beer. (T. 798). Coles continued to harass Mr. Young all the way back to the Burger King. (T. 799). When Young arrived at the parking lot, Harriet Murray was sitting on a low wall by the restaurant. Davis and Daryl Collins, who had taken a shortcut to the parking lot, came out from behind the bank and surrounded Mr. Young. (T. 799). Mr. Coles, who was facing Mr. Young, told him not to walk away “cause you don’t know me, I’ll shoot you,” and began digging in his pants. (T. 845). Ms. Murray ran to the back door of the Burger King, which was locked. (T. 799). Davis, who was behind Young and to his right, blind-sided him, striking him on the side of the face with a snub-nosed pistol, inflicting a severe head injury. Mr. Young began to bleed profusely, and he stumbled to a van parked in front of the Burger King drive-in window, asking the occupants for help. (T. 803). When the driver did not respond, he went to the drive-in window, but the manager shut it in his face. (T. 803, 915).
In response to the disturbance in the parking lot, Officer MacPhail, who was working as a security guard at the restaurant, walked rapidly from behind the bus station, with his nightstick in his hand and ordered the three men to halt. (T. 849). Mr. Collins and Davis fled, and Officer MacPhail ran past Sylvester Coles in pursuit of Davis. (T. 851). Davis looked over his shoulder, and when the officer was five to six feet away, shot him. Officer MacPhail fell to the ground, and Davis walked towards him and shot him again while he was on the ground. (T. 850). One eyewitness testified that Davis was smiling at the time. (T. 851). The victim died of gunshot wounds before help arrived.
Davis fled to Atlanta the following day and surrendered to authorities on August 23, 1989.
Pursuant to an investigation, police learned that on the night of the killing, Davis had attended a party on Cloverdale Drive in a subdivision near Savannah. (T. 1115-1116). During the party, Davis, annoyed that some girls ignored him, told several of his friends something about “burning them.” (T. 146). Davis then walked around saying, “I feel like doing something, anything.” (T. 1464). When Michael Cooper and his friends were leaving the party, Davis was standing out front. (T. 1120). Michael Cooper was in the front passenger seat, and as the car pulled away, several of the men in the car leaned out the window shouting and throwing things. (T. 1120, 1186). Davis shot at the car from a couple of hundred feet away and the bullet shattered the back windshield and lodged in Michael Cooper’s right jaw. (T. 1186). Cooper was treated at the hospital and released and Cooper’s injury formed the basis for Count IV of Davis’ indictment. The shooting incident took place approximately one hour before Officer MacPhail was shot.
Shortly after Michael Cooper was shot, Eric Ellison and D.D. Collins picked up Davis in Cloverdale and took him to Brown’s Pool Hall in Savannah. Red Coles, wearing a yellow t-shirt, was already at the pool hall.
A ballistics expert testified that the bullet recovered from MacPhail’s body was of the same type and was possibly fired from the same weapon as used in the Cooper shooting. (T. 1292). Four .38 special casings recovered at Cloverdale, where Michael Cooper was wounded, were fired from the same gun as casings found at the scene of Officer MacPhail’s murder. (T. 1292).
At trial, Kevin McQueen, who was at the Chatham City Jail with Davis, testified that Davis told him there had been a party in Cloverdale on the night of the victim’s murder; Davis had argued with some men and there was an exchange of gunfire. (T. 1230-1231). Davis told McQueen he did some of the shooting. (T. 1231). After the party, Davis went to a girlfriend’s house and intended to eat breakfast at Burger King. Davis stated that he was with a friend and they ran into a guy who “owed money to buy dope.” (T. 1231). There was a fight, Officer MacPhail appeared, and Davis shot him in the face. As Officer MacPhail attempted to get up, Davis shot him again, because he was afraid MacPhail had seen him that night at Cloverdale. (T. 1232). Davis also told McQueen that he was on his way out of town to Atlanta. (T. 1232).
Jeffrey Lapp testified that Davis told him he did the shooting at Burger King, but that it was self-defense. (T. 1249-1252). Mr. Lapp noted that Davis’ street name was RAH, standing for “Rough As Hell.” (T. 1257).
Red Coles identified Davis as the perpetrator of Officer MacPhail’s murder, as did numerous other eyewitnesses, including Harriet Murray, Dorothy Ferrell, Daryl Collins, Antoine Williams, Steven Sanders and Larry Young.
Davis testified at trial. Davis admitted that he was present at the scene of the shooting on the night in question, but denied that he was involved in the shooting of Cooper or the victim or the assault on Larry Young.
The Trial (1989-1991)
Davis was found Davis guilty of one count of malice murder, one count of obstruction of a law enforcement officer, two counts of aggravated assault and one count of possession of firearm during the commission of a felony. The jury’s recommendation of a death sentence was returned on August 30, 1991. The Georgia Supreme Court unanimously affirmed Davis’ convictions and death sentence on February 26, 1993. Davis v. State, 263 Ga. 5, 426 S.E.2d 844 (1993). The Georgia Supreme Court specifically found that the evidence presented at Davis’ trial was sufficient to support the jury’s verdict, by stating that, “The evidence supports the conviction on all counts.” Davis v. State, 263 Ga. 5, 7 (1993).
State Habeas Corpus Petition (1994-2001)
Davis, represented by the Georgia Resource Center, filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia on March 15, 1994. An evidentiary hearing was held on December 16, 1996.
On September 9, 1997, the state habeas corpus court denied Davis state habeas corpus relief, including his claim that he was not the shooter. (State habeas corpus order of September 5, 1997, denying relief, page 41). The Georgia Supreme Court affirmed the denial of state habeas corpus relief on November 13, 2000. Davis v. Turpin, 273 Ga. 244, 539 S.E.2d 129 (2000).
Davis then filed a petition for writ of certiorari in the United States Supreme Court, which was denied on October 1, 2001. Davis v. Turpin, 534 U.S. 842, 122 S.Ct. 100 (2001).
Federal Habeas Corpus Petition (2001-2004)
Davis, represented by Thomas Dunn, filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Georgia, Savannah Division, on December 14, 2001. On May 13, 2004, the district court denied Davis federal habeas corpus relief. In its order denying relief, the federal habeas corpus court denied Davis a federal evidentiary hearing stating that, “this Court finds that because the submitted affidavits are insufficient to raise doubts as to the constitutionality of the result at trial, there is no danger of a miscarriage of justice in declining to consider the claim.” (Federal habeas corpus order of 5/13/04, p. 25.).
11th Circuit Court of Appeals (2004-2006)
The case was orally argued before the Eleventh Circuit on September 7, 2005. On September 26, 2006, the Eleventh Circuit issued an opinion which affirmed the denial of federal habeas corpus relief to Davis. Davis v. Terry, 465 F.3d 1249 (11th Cir. 2006). In the Eleventh Circuit’s opinion, the Court noted, “In this case, Davis does not make a substantive claim of actual innocence. Rather, he argues that his constitutional claims of an unfair trial must be considered, even though they are otherwise procedurally defaulted, because he has made the requisite showing of actual innocence under Schlup.” Davis v. Terry, 465 F.3d 1249, 1251 (11th Cir. 2006). Reviewing each of Davis’s claims, the Eleventh Circuit affirmed the denial of federal habeas corpus relief by stating the following, “Having very carefully considered this record, we cannot say that the district court erred in concluding that Davis has not borne his burden to establish a viable claim that his trial was constitutionally unfair.” Davis v. Terry, 465 F.3d 1249, 1256 (11th Cir. 2006). Davis filed a petition for writ of certiorari in the United States Supreme Court on April 11, 2007, which was denied on June 25, 2007.
Original Execution Date Set (July 17, 2007)
On June 29, 2007, Chief Judge Perry Brannen, Jr. of the Superior Court of Chatham County filed an order setting the execution of Troy Anthony Davis for July 17, 2007. Davis filed a motion for stay of execution and an extraordinary motion for new trial. The trial court granted a stay, and then “exhaustively reviewed” each submitted affidavit “and considered in great detail the relevant trial testimony, if any, corresponding to each.” In denying the extraordinary motion for new trial, the trial court concluded that, “Defendant has failed to carry the burden on each and every submitted affidavit.”
On appeal, the Georgia Supreme Court extensively reviewed each category of “affidavit testimony” on which Petitioner’s extraordinary motion relied, including: “recantations by trial witnesses,” “statements recounting alleged admissions of guilt by Coles,” “statements that Coles disposed of a handgun following the murder” and “alleged eyewitness accounts.” Davis v. State, 283 Ga. 438, 441-447, 660 S.E.2d 354 (2008). The Georgia Supreme Court held that, “Upon our careful review of Davis’s extraordinary motion for new trial and the trial record, we find that Davis failed to present such facts in his motion and, therefore, that the trial court did not abuse its discretion in denying that motion without a hearing.” Davis v. State, 283 Ga. at 448.
New Execution Date Set (September 23, 2008)
A new execution date was set for Troy Anthony Davis for September 23, 2008. On September 12, 2008, the Board of Pardons and Paroles denied commutation of death sentence and issued the following statement:
The Parole Board does not generally comment on death penalty cases it has considered for clemency. However, the Troy Davis case has received such extensive publicity that the Board has decided to make an exception.
Davis’ attorneys have argued that the Board should grant him clemency because a number of witnesses against Davis changed their earlier statements to the police and their testimony at the trial. Moreover, the attorneys have brought forward other people who now claim to have information that raises doubt as to the guilt of Davis.
Because of these claims, the Parole Board stopped Davis’ execution last year. The Board has now spent more than a year studying and considering this case.
As a part of its proceedings, the Board gave Davis’ attorneys an opportunity to present every witness they desired to support their allegation that there is doubt as to Davis’ guilt. The Board heard each of these witnesses and questioned them closely.
In addition, the Board has studied the voluminous trial transcript, the police investigation report and the initial statements of the witnesses. The Board has also had certain physical evidence retested and Davis interviewed.
After an exhaustive review of all available information regarding the Troy Davis case and after considering all possible reasons for granting clemency, the Board has determined that clemency is not warranted.
On September 23, 2008, the United States Supreme Court entered an order staying the execution pending disposition of Davis’s petition for writ of certiorari that had been previously filed on July 14, 2008. On October 14, 2008, the United States Supreme Court denied Davis’s petition for writ of certiorari, thus terminating the stay of execution. Davis v. Georgia, ___ U.S. ___, 129 S.Ct. 397 (2008).
New Execution Date Set (October 27, 2008)
On October 22, 2008, Davis filed an application for leave to file a second or successive habeas corpus petition. Respondent filed a response in opposition on October 23, 2008. On October 24, 2008, the Eleventh Circuit granted a conditional stay of execution and directed both parties to submit briefs addressing specific issues. Both parties submitted briefs, and an oral argument before the Eleventh Circuit was held on December 9, 2008. On April 16, 2009, the Eleventh Circuit denied Davis’s application for leave to file a second or successive habeas corpus petition. In re: Davis, 565 F.3d 810 (11th Cir. 2009). The Eleventh Circuit held:
In short, we are constrained by the statutory requirements found in § 2244(b)(2)(B) to conclude that Davis has not even come close to making a prima facie showing that his Herrera claim relies on (i) facts that could not have been discovered previously through the exercise of due diligence, and that (ii), if proven, would “establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B) (2006). He, therefore, cannot file a successive petition.
In re Davis, 565 F.3d at 824.
Davis subsequently filed an original writ in the United States Supreme Court on May 19, 2009. On August 17, 2009, the United States Supreme Court transferred the case to the district court for that court to “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of the trial establishes petitioner’s innocence.” In re Davis, ___ U.S. ___, 130 S.Ct. 1 (2009).
Following briefing and discovery, a federal evidentiary hearing was conducted in the United States District Court for the Southern District of Georgia, Savannah Division, on June 23-24, 2010. On August 24, 2010, the United States District Court entered an order denying Davis’s petition for a writ of habeas corpus. In denying relief, the district court held:
Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors. The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value. After careful consideration, the Court finds that Mr. Davis has failed to make a showing of actual innocence that would entitle him to habeas relief in federal court.
In re: Davis, Case No. CV409-130.
Thereafter, Davis filed a petition for writ of certiorari in the United States Supreme Court on January 21, 2011, which was denied on March 28, 2011.
Troy Anthony Davis (October 9, 1968 – September 21, 2011)[1][2] was an American convicted of and executed for the August 19, 1989 murder of police officer Mark MacPhail in Savannah, Georgia. MacPhail was working as a security guard at a Burger King restaurant when he intervened to defend a man being assaulted in a nearby parking lot. During Davis’s 1991 trial, several witnesses testified they had seen Davis shoot MacPhail, and two others testified that Davis had confessed to them. Although the murder weapon was not recovered, ballistic evidence presented at trial linked bullets recovered at or near the scene to those at another shooting in which Davis was also charged. After a trial before a jury of seven blacks and five whites, in which 34 witnesses were called for the prosecution and six for the defense (including Davis), he was convicted of murder and various lesser charges, including the earlier shooting, and was sentenced to death in August 1991.
Davis pleaded not guilty at his trial and maintained his innocence until his execution. In the twenty years between his conviction and execution, Davis and his defenders secured support from the public, from celebrities, and human rights groups. Amnesty International and other groups such as National Association for the Advancement of Colored People took up Davis' cause. Prominent politicians and leaders, including former President Jimmy Carter, Al Sharpton, Pope Benedict XVI, Archbishop Desmond Tutu, former U.S. Congressman and one-time presidential candidate Bob Barr, and former FBI Director and judge William S. Sessions called upon the courts to grant Davis a new trial or evidentiary hearing.
Following the original trial, seven witnesses changed or recanted all or part of their testimony; others, including an Air Force enlisted man who identified Davis as the killer, did not. Davis and his lawyers argued that the racial composition of the jury and poor advocacy from his lawyers had affected his right to a fair trial. The limited ability to appeal his conviction, due in part to the Antiterrorism and Effective Death Penalty Act of 1996, was one reason cited for the international attention to the case.[3][4] In July 2007, September 2008, and October 2008, execution dates were scheduled, but each execution was stayed shortly before it was to take place.
In 2009, the Supreme Court of the United States, voting 7 to 2, ordered the U.S. District Court for the Southern District of Georgia to consider whether new evidence "that could not have been obtained at the time of trial clearly establishes [Davis'] innocence". The evidentiary hearing was held in June 2010, during which affidavits from several prosecution witnesses from the trial changing or recanting their previous testimony were presented. Some of the affidavits implicated one of the original prosecution witnesses, Sylvester "Redd" Coles, in the crime, and other affiants asserted they had been coerced by police. The State presented witnesses, including the police investigators and original prosecutors, denying coercion. Evidence that Coles had confessed to the killing was excluded as hearsay because Coles was not subpoenaed by the defense to rebut it. In an August 2010 decision, the conviction was upheld, and the court described defense efforts to upset the conviction as "largely smoke and mirrors". Subsequent appeals, including to the Supreme Court, were rejected, and a fourth execution date was set for September 21, 2011. Nearly one million people signed petitions urging the Georgia Board of Pardons and Paroles to grant clemency.[5] The Board denied the petition[6] and, on September 21, it refused to reconsider its decision.[7] After a last minute appeal to the United States Supreme Court was denied, the sentence was carried out on September 21, 2011 at 11:08 p.m. Eastern Time.[8]
Early life
Davis was the eldest child of Korean War veteran Joseph Davis and hospital worker Virginia Davis.[9][10] The couple divorced when Davis was very young,[10] and Davis grew up with four siblings in the predominantly black, middle-class neighborhood of Cloverdale, Savannah.[10] He attended Windsor Forest High School, where one teacher described him as a poor student.[10] He dropped out in his junior year so he could drive his disabled younger sister to her rehabilitation.[9] Davis obtained his high-school equivalency diploma from Richard Arnold Education Center in 1987. A teacher noted that he attended school regularly but seemed to lack discipline.[9] Davis's nickname at the time was "Rah," or "Rough as Hell" , but some neighbors reported that it did not reflect his behavior; they described him as a "straight up fellow" who acted as a big brother to local children.[10] In July 1988, Davis pled guilty to carrying a concealed weapon; he was fined $250 as part of a plea agreement in which a charge of possession of a gun with altered serial numbers was dropped.[11]
In August 1988, Davis began work as a drill technician at a plant manufacturing railroad crossing gates. His boss once commented that while Davis was a likable and good worker who appeared to have positive life goals, his job attendance was poor and by Christmas 1988 he had stopped coming to work.[9] Davis returned to the job twice in the following months but neither time remained for long.[9]
Davis was a coach in the Savannah Police Athletic League and had signed up for service in the United States Marine Corps.[3]
Shootings and arrest
On the evening of August 18, 1989, Davis briefly attended a pool party hosted by a friend in the Cloverdale neighborhood of Savannah, Georgia. As he left with his friend Darrell Collins, the occupants of a passing car yelled obscenities at them. A bullet was fired into the car and [12] Michael Cooper, a passenger in the other car, was shot in the face, allegedly by Davis.[13] Davis and Collins continued on, and later met Sylvester "Redd" Coles, who was arguing with a homeless man, Larry Young, over a beer near a Burger King restaurant in the nearby Yamacraw neighborhood.[12][14] Off-duty policeman Mark MacPhail was working as a security guard there and was shot when he attempted to intervene in the pistol whipping of Mr. Young.[15]
MacPhail, age 27, the son of a U.S. Army colonel, was married and father to a 2-year old daughter and an infant son. He had joined the Savannah Police Department in 1986 following six years of military service as an Army Ranger. MacPhail had worked for three years as a regular patrol officer and in the summer of 1989 had applied to train as a mounted policeman.[16] At about 1:15 am, seeking to help Young who was being attacked in a nearby parking lot, MacPhail was killed. He had been shot twice, once through the heart and once in the face, without drawing his gun.[12][14][17][18] No physical evidence from the crime was retrieved, apart from the bullets and shell casings, which were determined to have come from a .38-caliber pistol. Witnesses to the shooting agreed that a man in a white shirt had struck Young and then shot MacPhail.[12]
On the evening of August 19, Redd Coles went to the police. He told them that he had seen Davis with a .38-caliber gun, and that Davis had assaulted Young.[12][19] The same evening, Davis drove to Atlanta with his sister.[12][19] In the early morning of August 20, 1989, the Savannah police, suspecting Davis and seeking a murder weapon, converged on the Davis home. Having sealed off the area, the police searched the house, and a pair of shorts belonging to Davis were found in a dryer and confiscated.[20] Police issued a reward for information leading to Davis's arrest.[21] Davis's family began negotiating with police, motivated by concerns about his safety; local drug dealers were making death threats because the police dragnet seeking Davis had interrupted their business.[19][22] On August 23, 1989, Davis was driven back to Savannah by members of his family, where he surrendered to police, and he was charged with MacPhail's murder.[19] Hundreds of mourners, including county, state and federal law enforcement officials, had attended MacPhail's funeral at Trinity Lutheran Church in Savannah the day before.[23]
Trial and conviction
On November 15, 1989, a grand jury indicted Davis for murder, assaulting Larry Young with a pistol, shooting Michael Cooper, obstructing MacPhail in performance of his duty and possession of a firearm during the commission of a crime.[24] Davis pled not guilty in April 1990.[18] In a hearing in November 1990, the judge barred forensic evidence from the shorts that had been retrieved during the police search of the Davis home. The judge ruled that Davis's mother did "not freely and voluntarily grant the police the right to search her home".[20] She had testified that police officers had threatened to break down her door unless she let them into her home. The Georgia Supreme Court upheld the exclusion of the evidence in May 1991, saying that the police should have obtained a search warrant.[24]
At the trial in August 1991, the district attorney sought the death penalty. According to the prosecution, Davis had shot Michael Cooper, then met up with Redd Coles at a pool hall, pistol-whipped the homeless man Larry Young, and then killed Mark MacPhail.[13] Trial witnesses Harriet Murray, Redd Coles, Dorothy Ferrell and Antoine Williams testified that Davis, wearing a white shirt, had struck Young and then shot MacPhail.[25][26][27] Coles admitted arguing with Young but stated that Davis had hit him with a pistol.[28]
On cross-examination, Coles admitted that he also had a .38 pistol, but stated that he had given it to another man earlier that night.[25] A neighbor of the Davis family, Jeffrey Sapp, testified that soon after the murder Davis had confessed to him.[28] Kevin McQueen, a former fellow prisoner, testified that Davis had confessed to shooting MacPhail as he feared that the officer would connect him to the shooting of Cooper earlier in the evening.[29] Cooper testified that he was inebriated when shot and said that although Davis was one of the people he had quarrelled with, he "don't know me well enough to shoot me".[27] A friend of Cooper, Benjamin Gordon, stated that the man who shot Cooper was wearing a white T-shirt and blue shorts, though on cross-examination he stated he did not know Davis and had not seen the person who shot Cooper.[27] Harriet Murray, a friend of Larry Young who was with him on the night of the crime, told jurors at the trial that after shooting MacPhail once, "the guy (Davis) took about two or three steps and shot him on the ground."[30] Dorothy Ferrell saw MacPhail's shooting, and also described seeing MacPhail shot by Davis even after the police officer fell to the ground wounded.[27] Darrell Collins, who had made an August 1989 police statement that he had seen Davis shoot at people in a car in Cloverdale and approaching MacPhail, recanted his statement under cross-examination by the defense, saying that he made the statement after threats by police with prison if he did not cooperate. He said in court that he had not seen Davis in possession of a gun or fire one.[27] No murder weapon – neither the gun owned by Cole nor that said to be owned by Davis – was ever recovered.[28] A ballistics expert testified that the .38 caliber bullet that killed MacPhail could have been fired from the same gun that wounded Cooper at the Cloverdale pool party, though he admitted doubt about this. However, he stated he was confident that .38 casings found at Cloverdale matched one allegedly later found by a homeless man near the scene of MacPhail's shooting.[31][32][33]
For the defense, Davis's mother testified that Davis was at their Cloverdale home on August 19, 1989, until he left for Atlanta with his sister at about 9 pm.[34] Davis denied shooting MacPhail, saying he had observed Coles striking Young after a quarrel about beer, but that he had fled before any shots were fired and did not know who had shot the officer. He denied shooting Cooper.[34][35]
On August 28, 1991, the jury, composed of seven black and five white members, took under two hours to find Davis guilty on one count of murder and the other offenses.[17] Davis and three of his family members testified during the sentencing phase. In a final address to the jury, Davis pleaded, "Spare my life. Just give me a second chance. That's all I ask." He told jurors he was convicted for "offenses I didn't commit." As the death penalty was being requested by the prosecutors, MacPhail's family members and friends were not allowed to testify.[36][37] On August 30, 1991, after seven hours of deliberation, the jury recommended the death penalty and Davis was sentenced to death.[9]
State proceedings
Since the death penalty was imposed, both the conviction and sentence were automatically appealed to the Georgia Supreme Court.[38] Davis and his lawyers requested a new trial, citing problems with the selection of the trial site and the jury, as well as a failure of defense lawyers to provide effective counsel.[39] The request was denied in March 1992.[40] In March 1993, the Georgia Supreme Court also upheld Davis's conviction and sentence, ruling that the judge had correctly refused to change trial site and that the racial composition of the jury did not deny his rights.[41][42] The U.S. Supreme Court declined to hear an appeal in November 1993,[43] Direct appeals having been exhausted, in March 1994 an order was signed for Davis's execution.[44]
In 1994, Davis began habeas corpus proceedings, filing a petition in state court alleging that he had been wrongfully convicted and that his death sentence was a miscarriage of justice.[31] The following year, the federal funding of the Georgia Resource Center, which helped represent Davis, was cut by 70%, leading to the departures of most of the center's lawyers and investigators. According to a later affidavit by the Executive Director the "work conducted on Mr. Davis's case was akin to triage... There were numerous witnesses that we knew should have been interviewed, but lacked the resources to do so."[45] The appeal stated that the testimony of the prosecution witnesses had been coerced by law enforcement personnel. The petition was denied in September 1997, with the court ruling that claims of improper law enforcement approaches should have been raised earlier in the appeal process, and the court could not usurp the jury's role to evaluate the evidence offered during the trial.[46] The Georgia Supreme Court affirmed the denial of state habeas corpus relief on November 13, 2000.[47]
In 2000 Davis challenged his conviction in state court. He alleged that the use of the electric chair during executions in Georgia constituted cruel and unusual punishment.[48][49] By a 4-3 margin the Georgia Supreme Court rejected the challenge, stating once again that Davis should have raised the issue earlier in the appeal process.[50]
Federal appeals
In December 2001, Davis filed a habeas corpus petition in the United States District Court.[49] From 1996 onwards, seven prosecution witnesses changed all or part of their trial testimony.[51][52] Dorothy Ferrell, for example, stated in a 2000 affidavit that she felt under pressure from police to identify Davis as the shooter because she was on parole for a shoplifting conviction.[52] In a 2002 affidavit, Darrell Collins wrote that the police had scared him into falsely testifying by threatening to charge him as an accessory to the crime, and alleged that he had not seen Davis do anything to Young.[53] Antoine Williams, Larry Young and Monty Holmes also stated in affidavits that their earlier testimony implicating Davis had been coerced by strong-arm police tactics.[31] In addition, three witnesses signed affidavits stating that Redd Coles had confessed to the murder to them.[28] The State of Georgia argued that the evidence had been procedurally defaulted since it should have been introduced earlier. Davis's petition was denied in May 2004; the judge stated in an opinion that the "submitted affidavits are insufficient to raise doubts as to the constitutionality of the result at trial, there is no danger of a miscarriage of justice in declining to consider the claim."[49] He also rejected other defense contentions about unfair jury selection, ineffective defense counsel and prosecutorial misconduct. The decision was appealed to the 11th Circuit Court, which heard oral arguments in the case in September 2005. On September 26, 2006, the court affirmed the denial of federal habeas corpus relief, and determined that Davis had not made "a substantive claim of actual innocence"[49] or shown that his trial was constitutionally unfair; the circuit court found that neither prosecutors nor defense counsel had acted improperly or incompetently at trial.[54][55] A petition for panel rehearing was denied in December 2006.[49]
Legal experts argued that a major obstacle to granting Davis a new trial was the Antiterrorism and Effective Death Penalty Act of 1996, passed after the Oklahoma City bombing, which bars death row inmates from later presenting evidence they could have presented at trial. Members of the legal community have criticized the restricting effect of the 1996 Act on the ability of wrongfully convicted persons to prove their innocence.[45][53]
First execution date
On June 25, 2007, Davis's first Certiorari petition to the U.S. Supreme Court was denied,[49][56] and his execution was then set for July 17, 2007.[45]
Davis's case gained increasing public exposure and support from organizations and prominent individuals. Nobel Peace Prize winner Archbishop Desmond Tutu urged the courts to agree to hear the evidence of police coercion and recanted testimony.[57][58] An appeal to Governor of Georgia Sonny Perdue urging him to spare Davis's life was sent on behalf of Pope Benedict XVI.[59] Similar appeals were sent by singer Harry Belafonte,[60] Sister Helen Prejean, author of Dead Man Walking,[61] and actor Mike Farrell.[62] Amnesty International published a report about Davis's case characterizing it as a miscarriage of justice and a "catastrophic flaw in the U.S. death penalty machine."[63] The human rights group initiated a letter-writing campaign and delivered 4,000 letters to the clemency board.[64] William S. Sessions, former FBI Director and federal judge, called on authorities to halt the execution process, writing that "[i]t would be intolerable to execute a man without his claims of innocence ever being considered by the courts or by the executive".[58] Politicians and others such as Jesse Jackson, Jr. and Sheila Jackson Lee, and former Texas District Attorney Sam D. Millsap, Jr., and the organization Murder Victims Families for Reconciliation requested that the courts grant Davis a new trial.[65] U.S. Congressman John Lewis spoke to the Georgia State Board of Pardons and Paroles, suggesting that Coles – one of the witnesses who had not recanted – was the real killer.[66] Representatives from the Council of Europe and European Parliament also spoke out on Davis's case, asking U.S. authorities to halt the planned execution and calling for a new trial.[67]
On July 16, 2007, the Georgia State Board of Pardons and Paroles granted a ninety-day stay of execution in order to allow the evaluation of evidence presented, including the doubts about Davis's guilt.[68][69] The stay was superseded by the August 2007 decision of the Georgia Supreme Court to grant Davis’ application for discretionary appeal from the denial of his Extraordinary Motion for a New Trial.[70] Defense lawyers requested a new trial based on statements of mistaken identity.[71] On March 17, 2008, the Georgia Supreme Court denied the appeal by a 4–3 majority. The majority wrote that the recanting witnesses "have merely stated they now do not feel able to identify the shooter", that the trial testimony could not be ignored, and that they "in fact, favor[ed] that original testimony over the new."[72][73] In dissent, the Chief Justice wrote that "if recantation testimony, either alone or supported by other evidence, shows convincingly that prior trial testimony was false, it simply defies all logic and morality to hold that it must be disregarded categorically".[73]
Second execution date
In July 2008, Davis's lawyers filed a petition for a writ of certiorari in the U.S. Supreme Court, seeking review of the Georgia Supreme Court decision and arguing that the Eighth Amendment creates a substantive right of the innocent not to be executed.[74][75] However, an execution date was scheduled for September 23, 2008, before the United States Supreme Court decided whether to take up Davis's case.[76] The Georgia Supreme Court refused to grant a stay of execution and the Board of Pardons and Paroles denied clemency.[77][78]
Demonstration in support of Troy Davis, Paris, July 2008
Amnesty International condemned the decision to deny clemency,[79] and the executive director of Amnesty International USA, added: "The U.S. Supreme Court must intervene immediately and unequivocally to prevent this perversion of justice."[77] Former President (and Georgia Governor) Jimmy Carter released a public letter in which he stated "Executing Troy Davis without a real examination of potentially exonerating evidence risks taking the life of an innocent man and would be a grave miscarriage of justice."[80][81] Reverend Al Sharpton also called for clemency after he met and prayed with Davis on death row.[82] A stay of execution was also supported by the NAACP; the president of the Georgia state conference said "This is a modern-day lynching if it's allowed to go forward."[78] Former Republican Congressman and Libertarian presidential candidate Bob Barr wrote that he is "a strong believer in the death penalty as an appropriate and just punishment," but that the proper level of fairness and accuracy required for the ultimate punishment has not been met in Davis's case.[83]
A last minute emergency stay, issued by the Supreme Court less than two hours before Davis was scheduled to be put to death, halted the execution.[84][85] Lawyers for Davis argued that lower courts had failed to permit a hearing to carefully examine the recanted testimony and four witnesses who implicated Coles. Lawyers for the Georgia attorney general's office argued that most of the affidavits had already been presented and reviewed, and that questions about the quality and credibility of the witnesses were raised at the initial trial.[86]
On October 14, 2008, the Supreme Court declined to hear Davis's petition,[75][87] and a new execution date was set for October 27, 2008.[88]
Third execution date
On October 21, 2008, Davis's lawyers requested an emergency stay of the pending execution, and three days later the 11th Circuit Court of Appeals issued a stay of execution to consider a newly-filed federal habeas petition.[89][90] Davis's supporters continued their appeals and actions; these included rallies held worldwide,[91] a petition with 140,000 signatures presented to the state Board of Pardons and Paroles,[89] and an appeal from the European Union calling for the death sentence to be commuted.[90] In contrast, the Chatham County prosecutors asserted that Davis was guilty and deserved the death penalty.[89]
Oral arguments were heard by a three-judge panel on December 9 in Atlanta. Davis's lawyers again argued that exculpatory affidavits proving Davis innocent had not been examined in a court of law; they noted the witnesses who had implicated Coles, and that his photo was not included among those shown to witnesses in the case.[92][93] The Senior Assistant Attorney General argued that, in extraordinary cases, evidence of wrongful conviction could be heard at this stage of the appeals process, but that in this case the recantation evidence was untrustworthy, and are generally regarded with the "highest suspicion."[92] Multiple courts and boards had also previously declined appeals.[92] During the hearing, judge Joel Dubina commented: "As bad as it would be to execute an innocent man, it's also possible the real guilty person who shot Officer MacPhail is not being prosecuted."[92] Another judge, Stanley Marcus, noted that two of the witnesses had not changed their recollections,[93] and that no DNA was available to categorically clear Davis.[92] After the hearing, Davis's sister, Martina Correia, an active campaigner for her brother stated "This is not family against family. We have no ill will against the MacPhail family. When justice is found for Troy, there will be justice for Officer MacPhail."[94]
On April 16, 2009, the panel denied Davis's application by a 2–1 majority. Judges Dubina and Marcus rejected the petition stating that Davis's claims having been reviewed and rejected in the past, and that the recantations were not persuasive.[95][96] Judge Rosemary Barkett, in dissent, expressed her belief that as Davis might prove his innocence, it would be wrong to execute him.[95] In an interview, Mark MacPhail Jr. said of his father, "He gave his life for the community and now I'm trying to help out his name and help him in some way." Of the appeals process, he says, "The past two years we've had countless appeals and it just keeps on getting drug out." Of Davis, MacPhail said, "He decided to break the law. And our law says, you kill an officer of the law, who tries to uphold it, you must be punished."[97] The 11th Circuit issued an order extending the stay of execution for 30 days to allow Davis the opportunity to file a habeas corpus petition with the U.S. Supreme Court.[95] Davis filed a petition for habeas corpus with the U.S. Supreme Court on May 19, 2009.[98]
On August 17, 2009, the Supreme Court ordered the Savannah federal district court to "receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis'] innocence."[99][100] Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg and Stephen Breyer, wrote that "[t]he substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing." Justice Antonin Scalia dissented, stating that a new hearing would be "a fool's errand" because Davis's claim of innocence was "a sure loser." He was joined by Justice Clarence Thomas.[101]
Federal hearing
In response to the Supreme Court order, a two-day hearing was held in June 2010 in a federal district court in Savannah in front of Judge William Moore.[101][102] Former prosecution witness Antoine Williams stated he did not know who had shot MacPhail, and that because he was illiterate he could not read the police statements he had signed in 1989.[103] Other prosecution witnesses Jeffrey Sapp and Kevin MacQueen testified that Davis had not confessed to them as they had stated at the initial trial.[104] Darrell Collins also recanted his previous evidence that he had seen Davis shoot Cooper and MacPhail.[103] The witnesses variously described their previous testimony against Davis as being the result of feeling scared, of feeling frightened and pressured by police or to get revenge in a conflict with Davis.[103][104] Anthony Hargrove testified that Redd Coles had admitted the killing to him. The state's lawyers described Hargrove's testimony as hearsay evidence; Judge William T. Moore permitted the evidence but stated that unless Coles appeared, he might give the evidence "no weight whatsoever."[103][104] Another witness making a similar statement was heard, but a third was rejected by Judge Moore as the claims were inadmissible hearsay because Coles was not called as a witness and given the opportunity for rebuttal.[102][105] Moore criticized the decision not to call Coles, saying that he was "one of the most critical witnesses to Davis's defense". One of Davis's lawyers stated that the day before they had been unsuccessful in serving a subpoena on Coles; Moore responded that the attempt had been made too late, given that the hearing had been set for months.[102] State attorneys called current and former police officers and the two lead prosecutors, who testified that the investigation had been careful, and that no witnesses had been coerced or threatened.[102] The lead detective testified that his investigation was "very meticulous and careful .... I was in no rush just to pick the first guy we got our hands on. I wanted the right guy."[104] He stated that witnesses gave "strikingly similar descriptions on how the shooter was dressed," mostly describing the shooter as wearing a white T-shirt and dark pants, which other witnesses said Davis was wearing that evening.[104] A state attorney asserted that the testimony of at least five prosecution witnesses remained unchallenged, and the evidence of Davis's guilt was overwhelming.[102] In July 2010, Davis's lawyers filed a motion asking Moore to reconsider his decision to exclude testimony from a witness to a confession by Coles,[105] but in August 2010, Moore stood by his initial decision, stating that in not calling Coles, Davis's lawyers were seeking to implicate Coles without desiring his rebuttal.[106]
Moore ruled that executing an innocent person would violate the Eighth Amendment. "However, Mr. Davis is not innocent."[100] In his decision, Moore wrote: "while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors."[100] Of the seven recantations, Moore found that only one was wholly credible and two who were partly credible.[100][107] He did not consider Coles' alleged confessions because of the failure of Davis's lawyers to subpoena Coles, and suggested that Davis should appeal directly to the Supreme Court.[107] In November 2010, the federal appeals panel dismissed an appeal on the case, without ruling on its merits. They stated that Davis should appeal the case directly to the U.S. Supreme Court "because he had exhausted his other avenues of relief."[108] Rosemary Barkett, one of the panel judges, later released a statement saying that although she agreed with the decision, she still believed that Davis should be given a new trial.[109]
Renewed U.S. Supreme Court petition
A man protesting the September 21 execution date at the September 17 Occupy Wall Street rally
In January 2011, Davis' legal team filed a new petition with the United States Supreme Court, alleging that the 11th Circuit panel had "evinced a clear hostility" during his August 2010 appeal, and again asking for a new trial.[110] The petition was rejected without comment by the Supreme Court in March 2011, allowing a new execution date.[111][112]
In May 2011, Amnesty International and People of Faith Against the Death Penalty asked religious leaders to sign a petition to the Georgia Board of Pardons and Paroles calling for the commutation of Davis's death sentence. By September 17, 2011, over 660,000 people[113] had signed the petition for clemency including Pope Benedict XVI, Archbishop of Atlanta Wilton Gregory, William Sessions (former head of the Federal Bureau of Investigation), President Jimmy Carter, representatives for the European Parliament, and Archbishop Desmond Tutu. [114]
Prosecutor rebuts publicity
On the evening of September 21, 2011, Spencer Lawton, the former Chatham County prosecutor who put Davis on trial, responded to what he called a "public relations campaign". Lawton was convinced of Davis' guilt. "We have consistently won the case as it has been presented in court. We have consistently lost the case as it has been presented in the public realm, on TV and elsewhere." Lawton called the witness recantations "suspect" because prosecutors never had the opportunity to cross-examine them. Lawton challenged the statements of former FBI Director William Sessions, former prosecutor Bob Barr and other Davis supporters. "Their credibility is hanging on a falsehood," Lawton said. "They would know differently if they looked at the record."[115]
Fourth execution date
On September 7, 2011, Georgia set Davis's execution date for September 21, 2011.[116] The Georgia Board of Pardons and Paroles set a hearing for Davis's second bid for clemency for September 19. The Board did not grant him clemency in September 2008, but the five-member Board had three new members.[117][118] On September 20, the Board denied him clemency.[119]
On the morning of September 21, 2011, the Butts County Superior Court denied Davis's request to halt his execution. The Georgia Supreme Court also denied his appeal. Davis was set to be executed at 7 pm EDT.[120] The same night, it was announced by Press Secretary Jay Carney that President Obama would not intervene in the case.[121]
Davis filed a request with the U.S. Supreme Court to stay his execution. Almost an hour after Davis's scheduled execution time, the Supreme Court announced they would review his petition, thereby postponing his scheduled execution.[122] The Supreme Court, however, denied Davis's petition, after deliberating for several hours.[123]
The execution began at 10:53 pm EDT.[124] He was declared dead at 11:08 pm EDT.[8] In his final words, Davis maintained his innocence.[125]
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My colleague E.D. Kain has been covering the case of Troy Anthony Davis, who was executed yesterday by the state of Georgia after being denied a stay of execution by the United States Supreme Court. You can read his coverage here, here and here.
I have tried to write about Mr. Davis before, but have not been able to find the heart for it. I called. I signed petitions. I did what little I could do for a man I firmly believe was not guilty of the crime of which he was accused.
I did not know Mr. Davis, but I hope that whatever gods may be grant him peace tonight.
What I do know, though, is that his death yesterday is emblematic of myriad problems with our system of criminal justice. In our ideals and our hopes, we want the Justice System to be a neutral arbiter – a way of sifting out the truth and ensuring that justice is done. Alas, it isn’t so.
We know that eyewitness testimony, especially in stressful situations, is unreliable. We know that, when under pressure by police to name someone as the guilty party, a witness will do so. Sometimes, under the stress and pressure, witnesses will even come to believe they saw something they didn’t see.
Seven of the witnesses against Mr. Davis have since recanted their testimony. Several have testified that the police applied intense pressure for them to name Mr. Davis as the killer of police officer Mark MacPhail. There was no forensic evidence linking him to the crime.
Although I know some are, I’m not angry at the police officers who applied pressure to get the name they wanted. One of their brothers had died. They wanted the killer brought to justice. They were convinced that Mr. Davis was the killer, so they did what they were trained to do. I do not believe they were motivated by malice. I believe they were motivated by grief, the camaraderie of the police force, and a personal and professional desire to bring the killer to justice. And they thought they’d found their man. I’m not even angry at the prosecutor. From what I can tell, I think he believes in his heart of hearts that he convicted the right man. People often don’t change their minds in the face of new facts, especially if a strong part of themselves is wrapped around an idea.
Here’s what I do take issue with: a system that rarely recognizes how these human issues can affect how the truth is found. The science of forensics has advanced significantly. The science of the psychology of how people behave, as witnesses, as police officers, as defendants has advanced significantly. But the system hasn’t caught up. It’s locked in old paradigms.
Eyewitness testimony in fast, stressful situations should be regarded as unreliable. If forensics don’t back that testimony, that should be prima facie reason to discard it unless there is good reason not to. Testimony from jailhouse informants who stand to gain something from their testimony should also be regarded as suspect. If a death penalty case is appealed, a new prosecutor who’ve never laid a hand on the case before should take it. Let that prosecutor look at the case with new eyes and decide if either contesting the appeal or dropping the charges leads to justice being done. Even confessions should be suspect, because people can and will confess to crimes they didn’t commit if they’re pressured or feel their cause is hopeless.
As we learn more about forensics and more about human psychology, we need to modify our law enforcement and judicial systems accordingly. It needs to have, as a primary goal, an ideal of impartial judgement, and consistently work to be more impartial every single day. The system needs to take the truth seriously.
Let me close with Troy Anthony Davis’ last words: “I’d like to address the MacPhail family. Let you know, despite the situation you are in, I’m not the one who personally killed your son, your father, your brother. I am innocent. The incident that happened that night is not my fault. I did not have a gun. All I can ask is that you look deeper into this case so that you really can finally see the truth. I ask my family and friends to continue to fight this fight. For those about to take my life, God have mercy on your souls. And may God bless your souls.”
Let us hope that an innocent man is never put to death again in this country.
Georgians for Alternatives to the Death Penalty
Jack Edward Alderman, 45, was sentenced to death in June 1975 by a Chatham County jury for killing his wife, Barbara Jean Alderman, 27, on Sept. 21, 1974. His sentence was overturned on a federal appeal in 1980, but in April 1984, he was again sentenced to death. A co-defendant, John Arthur Brown, pleaded guilty for a life sentence and told investigators Mr. Alderman wanted to kill his wife for the insurance money. Mr. Brown was paroled in 1987. The state appeal concerning the fairness of Mr. Alderman's second trial has been pending in Mr. Alderman's case since December 1994.
Stanley Edward Allen, 42, was sentenced to death in Elbert County in July 1981. Mr. Allen and an accomplice, Woodrow Davis, 18, were convicted in the Jan. 5, 1981, break-in of the home of Susie C. Rucker, 72. Both men raped the woman, and she was strangled to death. Mr. Davis was sentenced to life in prison. Mr. Allen's death sentence was overturned by the Georgia Supreme Court in January 1982, but he was resentenced to death in October 1984. Mr. Allen had previously been sentenced to 10 years in prison for rape in 1975. Since September 1991, Mr. Allen has been awaiting a new sentencing trial on the issue of mental retardation.
James Douglas Andrews, 28, was sentenced to death on Oct. 16, 1992, in Muscogee County for rape, robbery and murder. Investigators say that on July 23, 1990, he broke into the home of Viola Hick, 78. His first appeal to the state Supreme Court hasn't been filed.
Joseph Martin Barnes, 27, was sentenced to death in Newton County in June 1993 for the robbery and shooting death of Prestiss Lamar Wells, 57, on Feb. 13, 1992. Although Mr. Barnes was sentenced to death four years ago, his first appeal hasn't been filed yet.
Norman Darnell Baxter, 45, was sentenced to death in Henry County in November 1983 for the murder of Kathryn June "June Bug" Brooks, 22. Her nude body bound feet, wrists and neck was found a week after she was reported missing in July 1980. Mr. Baxter, who spent time in state mental hospitals, had prior criminal convictions. A new sentencing trial has been pending since February 1995.
Jack Alfred Bennett, 68, was sentenced to death in Douglas County for killing his 55-year-old wife four days after they were married on June 24, 1989. As she lay sleeping, Mr. Bennett stabbed her more than 100 times and caved in the left side of her head with a claw hammer. His state appeal challenging the fairness of his trial has been pending since December 1995.
Billy Sunday Birt, 60, and Bobby Gene Gaddis, 56, were sentenced to death in Jefferson County for the Dec. 22, 1973, torture and killing of Lois and Reed Oliver Fleming, ages 72 and 75. Three other men, including the man who arranged the robbery-killings, were granted immunity. A third man, Charles Reed, was sentenced to life in prison. Four years after Mr. Birt and Mr. Gaddis were sentenced to death for killing the white couple, their sentences were overturned by a state judge reviewing the fairness of their trials. Nothing has been done since and this year the Department of Corrections moved Mr. Birt and Mr. Gaddis off death row.
Joshua Daniel Bishop, 22, was sentenced to death in Baldwin County on Feb. 13, 1996, for the robbery and beating death of Leverett Lewis Morrison, 44, who refused to turn over his jeep keys. Mr. Bishop helped beat to death another man and that evidence was used against him in his capital murder trial. His first appeal is pending.
Roy Willard Blankenship, 41, was sentenced to death in April 1980 in Chatham County for beating, raping and killing Sara Bowen, 78, for whom he had done work in the past. Ms. Bowen actually died from a heart attack brought on by trauma including being bitten, scratched and stomped. Mr. Blankenship has been sentenced to death three times, the last time in June 1986, following the reversal of his sentence. A state appeal challenging the fairness of his trial has been pending since March 1994.
Kenneth Dan Bright, 36, was sentenced to death in Muscogee County for the Oct. 30, 1989, robbery and murder of his grandparents, R.C. Mitchell, 74, and Fannie Monroe Mitchell, 69, less than eight months after being released from a mental hospital. Mr. Bright was a crack addict on parole at the time of the killings. His sentence was overturned by the state Supreme Court in March 1995. He's still awaiting retrial.
Ward Anthony Brockman, 25, was sentenced to death March 12, 1994. He and three others killed a service station attendant during an attempted robbery on June 27, 1990. Mr. Brockman, who was the triggerman, and his accomplices had pulled a number of armed robberies, and he was arrested after a chase in Phenix City, Ala. His first appeal to the state Supreme Court hasn't been filed yet.
James Willie Brown, 48, was sentenced to death in Gwinnett County in July 1981 after he had been hospitalized for nearly six years. Mr. Brown, who had a history of mental illness and convictions for an attempted rape and robbery, killed Brenda Sue Watson, 19, on May 12, 1975, after the two went out for dinner and dancing. A federal court reversed Mr. Brown's death sentence in 1988. He was sentenced to death a second time in February 1990.
Raymond Burgess, 38, was sentenced to death on Feb. 25, 1992, in Douglas County. During a robbery spree with co-defendant Norris Young. Mr. Burgess shot and killed Liston Chunn, 44, eight months after he was paroled from a life sentence for another robbery-killing. Mr. Burgess was also convicted in 1977 of armed robbery and sexual assault. Mr. Young was sentenced to life in prison. Mr. Burgess' state appeal challenging the fairness of his trial has been pending since August 1995.
David Loomis Cargill, 38, was sentenced to death in Muscogee County in July 1985 for the robbery and murder of a couple with four children under age 10. Cheryl Williams, 29, and Danny Williams, 41, were at a service station when Mr. Cargill and his brother, Tommy, robbed it the night of Jan. 22, 1985. The couple was forced to lie on the floor where David Cargill shot both twice in the head. Tommy Cargill received a life sentence. David Cargill's federal appeal challenging the fairness of his trial is pending.
Timothy Don Carr, 26, was sentenced to die in Monroe County in October 1992. He and his girlfriend were partying the night of Oct. 8, 1992, with Keith Patrick Young, 18, whom Mr. Carr stabbed numerous times, slit his throat and bashed his head with a baseball bat. Mr. Carr, who was on probation, and his girlfriend stole Mr. Young's car and $120. The girlfriend was sentenced to life in prison plus 20 years. Mr. Carr's first appeal to the state Supreme Court was denied in February. Mr. Carr's execution was set in August. Since Mr. Carr had no attorneys, a deadline to appeal to the U.S. Supreme Court passed in May. The state Supreme Court and U.S. Supreme Court rejected the Attorney General's attempt to lift the stay of execution.
Roddy Elroy Childress, 49, was sentenced to death in May 1994 in Glynn County for the shooting deaths of his half-sister's husband, Patrick Kappus, 40, and her daughter, Emma Kappus, 15, on May 1, 1989. Mr. Childress' conviction and sentence were overturned in March 1996, however, because Mrs. Kappus violated the rules of sequestration during the trial by talking to other witnesses about testimony. Mr. Childress is awaiting a new trial.
Scott Lynn Christenson, 26, was sentenced to death in Harris County in March 1990 for the robbery and murder of Albert L. Oliver III, 31. Mr. Oliver gave Mr. Christenson a ride on July 6, 1989. His body, with five gunshot wounds, was found later that day. Mr. Christenson, then 18, had a juvenile record of burglaries and thefts and adult convictions for forgery, burglary and car thefts. His state appeal challenging the fairness of his trial has been pending since October 1995.
Michael Anthony Cohen, 40, was sentenced to death in Glynn County in December 1986. Mr. Cohen, who had a history of burglary convictions, had been out of prison about a month when he started burglarizing homes again, stealing a handgun Oct. 13, 1985. The next day, Auzzie Douglas Sr., 55, a disabled man, was shot to death inside his home. His case has been sent back to Glynn County on the issue of mental retardation.
Robert Lewis Collier, 49, was convicted in Catoosa County in August 1978 for shooting to death a sheriff's investigator, Baxter Shavers, 24. Investigator Shavers was investigating a robbery call April 14, 1978, when shot. Investigator Shavers, the youngest chief deputy in state history at the time, was married with one son. Jeremy Shavers followed in his father's footsteps and now is a sheriff's deputy in Catoosa County. Mr. Collier's second federal appeal challenging the fairness of his conviction is pending in the 11th U.S. Circuit Court of Appeals.
Roger Collins, 38, was sentenced to death in Houston County on Feb. 17, 1978, for the rape and murder of Deloris Luster, 17. On Aug. 6, 1977, he and a friend offered Ms. Luster a ride. The teen was raped, then Mr. Collins killed her with a car jack. William Durham was sentenced to life in prison. Mr. Collins' case was returned to the Houston County trial court in March 1991 on the issue of mental retardation.
Robert Dale Conklin, 36, was sentenced to death in June 1984 in Fulton County. Mr. Conklin was having an affair with attorney George Grant Crooks, 27, when the two got into an argument on March 28, 1984, and Mr. Conklin stabbed the other man in the ear with a screw driver. Mr. Conklin said he panicked afterward because he was on parole at the time. So he drained the blood from Mr. Crook's body and cut it up into nine pieces. Mr. Conklin's appeal is pending in federal court.
John Wayne Conner, 40, was sentenced to death in July 1982 in Telfair County. Six months before, Mr. Conner was drinking with his friend, James T. White, 29, when he became enraged and started beating Mr. White with his fist, a whiskey bottle and a stick. In the most recent appeal action, Mr. Conner's state appeal challenging the fairness of his trial was denied in December. That decision is being appealed to the state Supreme Court.
Eddie A. Crawford, 50, was sentenced to death in Spalding County in March 1984 for the kidnapping, rape and murder of his 29-month old niece, Leslie Michelle English, on Sept. 25, 1983. The toddler was strangled to death, bruised and raped. He told police he remembered the toddler had been in his car and remembered carrying her out of the car. He was sentenced to death twice. He was on probation when he killed the girl.
Samuel David Crowe, 36, was sentenced to death in Douglas County in November 1989. The former church deacon was convicted of the robbery and murder of his former boss, Joe Pala, 39. Mr. Pala was knocked to the floor of Wickes Lumber Co., shot, hit with a paint can and crowbar, and covered in paint the night of March 2, 1988. Mr. Crowe had no criminal record before the killing. His first appeal to the state Supreme Court was denied in June 1995, and the U.S. Supreme Court rejected hearing the case on appeal in March 1996.
George Bernard Davis Jr., 39, was sentenced to death in Elbert County in February 1985. He was convicted of robbing and shooting to death Richard L. Rice, 63. The garage owner was found dead in his tow truck Feb. 13, 1984. His wallet had been stolen along with more than $800. Mr. Davis had argued with Mr. Rice over payments for car repairs. Davis, who had no major felony convictions before the killing, has been awaiting a trial court decision on the issue of mental retardation since April 1990.
Troy Anthony Davis, 28, was sentenced to death in Chatham County in September 1991 for killing an off-duty police officer, Mark Allen MacPhail, 27. Officer MacPhail was trying to break up a fight between Mr. Davis and another man when Mr. Davis shot him. He was wearing a bullet-proof vest, but as Mr. Davis stood over the officer and shot him again, the bullet pierced his side. Mr. Davis' state appeal challenging the fairness of his trial has been pending since March 1994.
Andrew Grant DeYoung, 22, was sentenced to die in October 1995 in Cobb County. He and a friend, David Michael Haggerty, 28, stabbed to death his parents and little sister Gary Wayne, 42, Kathryn, 41, and Sarah, 14, on July 15, 1993. Mr. DeYoung had no prior criminal record. Mr. Haggerty was sentenced to life in prison in July 1996. An appeal hasn't been filed yet for Mr. DeYoung.
Wilbur Wiley Dobbs, 48, was sentenced to death in Walker County in May 1974 for the shotgun slaying of Roy L. Sizemore, 50. The grocery store owner was killed Dec. 14, 1973, when Mr. Dobbs and two others robbed the store. A salesman visiting the store was also shot but survived, as did a female customer who suffered a skull fracture after she was hit with a gun butt. Mr. Dobbs' co-defendants were sentenced to life in prison. In May, a federal judge ordered a new sentencing hearing for Mr. Dobbs, ruling his trial attorney was ineffective.
Leonard Maurice Drane, 37, was sentenced to death in Elbert County in September 1992 for killing Linda Renee Blackmon, 27, on June 13, 1990, while he was on probation for other crimes. The trial was moved from Spalding County to Elbert County. She had been raped and shot. Her throat was cut. Co-defendant David Robert Willis was sentenced to life in prison. Three years ago, the state Supreme Court sent Mr. Drane's case back to the trial court for a ruling on appeal issues.
Eric Lynn Ferrell, 34, was sentenced to death in September 1988 in DeKalb County for the robbery and murder of his 72-year-old grandmother and 15-year-old cousin. The bodies were found Dec. 30, 1987. Both had been shot twice in the head at close range. Mr. Ferrell was on probation at the time. At the time of his grandmother's and cousin's killings, two of his uncles had killed a man and police initially thought the double homicide was revenge for that homicide. When arrested, police found four spent .22-caliber casings in Mr. Ferrell's pockets, along with $600. The murder weapon was later found at his home. A state appeal challenging the fairness of his trial and sentence has been pending since July 1995.
Eddie William Finney Jr., 40, was sentenced to death in Jones County in November 1977 about three months after the bodies of Thelma Kalish, 69, and Ann Kaplan, 60, were found in their home. On Sept. 22, 1977, the women were robbed, raped and beaten to death. Mr. Finney and Johnny Mack Westbrook, who had both done yard work for the women, were convicted and sentenced to death. The Georgia Supreme Court reversed Mr. Westbrook's death sentence because the judge sent the jury back into the deliberation room when it first voted for life. Mr. Westbrook died of heart disease in prison in 1993. Mr. Finney's case was returned to the trial court in April 1991 for a decision on the issue of mental retardation.
Son Fleming, 66, was sentenced to death in January 1978 in Lanier County for the murder of Ray City Police Chief Ed Giddens, 29. The officer stopped a speeding car in February 1976, not knowing the men inside had just pulled an armed robbery. It was Chief Giddens' last day on the job he had intended to move to Florida. Mr. Fleming's brother was sentenced to life in prison. Henry Willis III, 36, was sentenced to death, too, and he was executed May 18, 1989. Mr. Fleming was the test case for the 1988 mental retardation exception for the death penalty. He was returned to Lanier County in March 1991 for a new sentencing trial.
Melbert Ray Ford Jr., 36, was sentenced to death in Newton County in October 1986. Seven months before, Mr. Ford shot to death his former girlfriend, Martha Chapman Matich, 31, and her 11-year-old niece, Lisa Renee Chapman. Although prosecutors contended Mr. Ford killed the woman and child in revenge for a romantic breakup, Mr. Ford also robbed the store where Ms. Matich was working that night. His attorneys are currently appealing the denial of his first appeal challenging the fairness of his trial and sentence.
Timothy Tyrone Foster, 29, was sentenced to death in Floyd County in May 1987. Mr. Foster confessed that on the night of Aug. 27, 1986, he broke into the home of Queen Madge White, 79. Her jaw was broken, she had gashes on the top of her head and she had been sexually assaulted and strangled. Mr. Foster had a juvenile record including armed robbery. In July 1991, his case was sent back to the trial court on the issue of mental retardation.
Wallace Marvin Fugate III, 47, was sentenced to death in Putnam County in April 1992 for killing his estranged wife, Pattie Fugate, 40. On May 4, 1991, he broke into his wife's home and waited for her. When she came in, he grabbed Ms. Fugate and dragged her outside to his vehicle, pistol whipped her about 50 times and then shot her in the forehead. Their son, who witnessed the killing and testified against his father, was the victim of a homicide the next year. One of the men who beat his son to death is now on Death Row too. Mr. Fugate's attorney has appealed the denial of his first appeal, challenging the fairness of his trial and sentence in October 1996.
Kenneth E. Fults, 28, was sentenced to death in May in Spalding County for killing a neighbor, 19-year-old Cathy Bonds, after breaking into her home on Jan. 30, 1996. Mr. Fults smothered her with a pillow and then shot her before stealing her car. Mr. Fults had a history of mental illness but no prior felony convictions. A direct appeal hasn't been filed yet.
Carlton Gary, 46, was sentenced to death in Muscogee County in August 1986. Between Sept. 11, 1977, and April 19, 1978, eight elderly women in Columbus were raped and strangled in their homes. One survived. In 1984, a gun stolen in the same neighborhood as the killing spree was found in Michigan in the possession of Mr. Gary's cousin. Mr. Gary's fingerprints were then matched to some left in the homes of four of the homicide victims. He was convicted of murdering three women. Mr. Gary had been accused of the rape and murder of an 89-year-old New York woman in 1970 and an additional rape, but he blamed another man who was tried and acquitted. Mr. Gary's second state appeal challenging the fairness of his trial and sentence was denied in December 1995. On May 27, the U.S. Supreme Court rejected an appeal on the same grounds.
Johnny Lee Gates, 41, was sentenced to death in Muscogee County in September 1977. On Nov. 30, 1976, Mr. Gates posed as a gas company employee to get into the home of 19-year-old Katharina Wright, whom he robbed, raped and then shot in the head. Mr. Gates was on parole at the time. He was arrested on unrelated charges Jan. 31, 1977, and confessed. Between Mrs. Wright's killing and his arrest, Mr. Gates also committed two other armed robberies and voluntary manslaughter. In 1992, Mr. Gates' case was sent back to Muscogee County for a new sentencing trial on the question of mental retardation.
Exzavious Lee Gibson, 25, was sentenced to death in Dodge County in June 1990. He was convicted of robbing and stabbing to death 46-year-old Douglas Coley at the Eastman convenience store where Mr. Coley was working Feb. 2, 1990. Mr. Gibson, who was covered in Mr. Coley's blood when arrested shortly after the robbery-slaying, was convicted four months later. This year, Augusta Judicial District Superior Court Judge J. Carlisle Overstreet denied Mr. Gibson's state appeal challenging the fairness of his trial, although Mr. Gibson had no legal counsel.
Fred Marion Gilreath Jr., 59, was sentenced to death in Cobb County in March 1980 for the killing of his estranged wife and her father. On May 11, 1979, Linda Gilreath, 28, and Gerrit W. VanLeevwen, 57, were shot to death she had been shot five times with a rifle, and then shot in the face at close range with a 12-gauge shotgun, he was shot with a rifle, shotgun and handgun. Mr. Gilreath's federal appeal challenging the fairness of his trial was denied in April 1996.
Daniel Greene, 30, was sentenced to death in December 1992 in Clayton County where the venue was changed from Taylor County. He committed a violent crime spree the night of Sept. 27, 1991, when he walked into a Reynolds convenience store and pulled a clerk into the back room, demanded money and stabbed her. He then stabbed customer Bernard Walker, 20, in the heart, killing him. A short time later, he forced his way into the home of an elderly couple he knew and stabbed both and stole their car. He then went to a convenience store in Warner Robins where he robbed and stabbed the clerk. In May, the state Supreme Court let the conviction and sentence stand.
Dennis Charles Hall, 41, was sentenced to death in August 1990 in Barrow County for the shotgun killing of his 10-year-old son, Adrian Hall. Police had been called to the Hall home numerous times before Jan. 7, 1990, when they found a drunken Hall and the dead child. His wife and two daughters told police Mr. Hall became enraged at Adrian for being noisy. The girls tried to hide Mr. Hall's gun, but he found it and shot the boy. He told a neighbor afterward, " I couldn't learn him nothing by beating him with a belt. So I guess I learned him something this time." His state appeal challenging the fairness of his trial has been pending since December 1995.
Willie James "Bo" Hall, 40, was sentenced to death in DeKalb County in February 1989 for killing his estranged wife, Thelma Hall, 23, who moved out of the family home just six days before her murder. On July 11, 1988, Ms. Hall made a frantic call to 911, and the dispatcher heard the sound of breaking glass and screams. Police arrived in minutes but, Mr. Hall had stabbed her 17 times. The day before, Mr. Hall told his sister-in-law that he would kill his wife and wouldn't get more than 10 years in prison for it. His state appeal was denied.
Emanuel Fitzgerald "Demon" Hammond, 30, was sentenced to die in Fulton County in March 1990 for the kidnapping, robbery, rape and murder of 27-year-old Julie Love. She was last seen by her boyfriend the night of July 11-12, 1988, when she left his apartment for home. A year later, in August 1989, Janice Weldon filed assault charges against Mr. Hammond after he tried to strangle her. Ms. Weldon told police that he and his cousin Maurice Porter killed Ms. Love. Mr. Porter confessed and took police to Ms. Love's remains near a trash pile. Ms. Love was kidnapped at gunpoint, Mr. Porter told police. Ms. Love was raped by Mr. Porter and beaten. Then the men tried to strangle her by wrapping a coat hanger around her neck and pulling the opposite ends. When that didn't work, Mr. Hammond shot her. Mr. Hammond had carjacked three other women stabbing one and leaving her to die on a trash pile, and he also broke into a woman's home and raped her. As a juvenile, he raped, robbed and kidnapped a woman and slit her throat, and he raped and sodomized another. While awaiting trial, he bragged to a deputy that he also had raped Ms. Love. His state appeal challenging the fairness of his trial was filed in December 1995.
George Russell Henry, 28, was sentenced to death in Cobb County in November 1994 for shooting to death a police officer. Officer Robert Ingram, a two-year police veteran, was shot in the face and behind his left ear while he was investigating a report of a suspicious person. Mr. Henry had previously been convicted of burglaries and forgery and was on probation at the time of the murder. His first appeal to the state Supreme Court hasn't been filed yet.
Robert Karl Hicks, 40, was sentenced to death in January 1986 in Spalding County for the kidnapping, rape and murder of 28-year-old Toni Strickland Rivers. On July 13, 1985, Ms. Rivers was waiting for a friend at a public park when she disappeared. That night, two men driving down a country road heard a scream and saw a man making stabbing motions. Ms. Rivers bled to death. Mr. Hicks had previously been convicted of rape. At his trial, doctors testified yes and no that Mr. Hicks was mentally ill. The denial of his state appeal challenging the fairness of his trial was upheld by the state Supreme Court in November 1995.
Jose Martinez High, 38, was sentenced to death in December 1978 in Tallaferro County for the kidnap and murder of 11-year-old Bonnie Bulloch who was kidnapped along with his father in July 1976. Judson Ruffin and Nathan Brown also were convicted and sentenced to death for Bonnie's murder, but their cases were reversed on appeal. They were resentenced to life in prison. A fourth man with the gang when Bonnie and his father were kidnapped and shot, Alphonso Morgan, was convicted and sentenced to die in Richmond County for another abduction and murder in the gang's crime spree. His sentence, however, also was overturned and he's now serving a life sentence. A second federal appeal challenging the fairness of Mr. High's trial is pending.
John W. Hightower, 53, was sentenced to death in Morgan County in May 1988 for killing his wife and two stepdaughters. Mr. Hightower's trial was moved from Baldwin County, where on July 12, 1987, the bodies of Dorothy Hightower, 42, Sandra Reaves, 22, and Evelyn Reaves, 19, were found at their home. Each had been shot. Mr. Hightower was arrested hours later in his wife's car, a bloody handgun inside. He bought the murder weapon the day before the slayings. A federal appeal challenging the fairness of his trial has been pending since November.
Floyd Ernest Hill, 60, was sentenced to death in July 1981 in Cobb County for shooting to death Austell Police Officer Gregory Mullinax. On Feb. 8, 1981, Officer Mullinax was sent to a trailer park on a domestic disturbance call. Officer Mullinax became the target of the battling couple when Mr. Hill got into the fray and shot the officer, and the officer shot and killed another person in the fight. Mr. Hill's death sentence was overturned on federal appeal in December.
Warren Lee Hill, 36, was sentenced to death in September 1991 in Lee County for beating to death fellow inmate Joseph Handspike, 34, with a nail-embedded board on Aug. 17, 1990. At the time, Mr. Hill was serving time for a 1985 murder. Mr. Hill's state appeal challenging the fairness of his trial has been pending since April 1994.
Travis Clinton Hittson, 26, was sentenced to death in Houston County in March 1993 for killing 20-year-old Conway U. Herbeck, a fellow sailor. On April 3, 1993, Mr. Hittson, Edward Vollmer and the victim left Pensacola, Fla., where they were stationed, and drove to Mr. Vollmer's parent's home in Warner Robins. Mr. Vollmer wanted to kill Mr. Herbeck and gave Mr. Hittson a baseball bat to use on April 5, 1992. Mr. Hittson hit the victim in the head several times with the bat and then shot him. They cut up Mr. Herbeck's body, buried the torso in Houston County and the rest in Pensacola. Mr. Vollmer was sentenced to life in prison. Mr. Hittson had never been convicted of a felony before the killing. A state appeal challenging the fairness of his trial has been pending since December 1995.
Dallas Bernard Holiday, 34, was sentenced to death in November 1986 in Jefferson County for killing 66-year-old Leon Johnson Williams on March 11, 1986. Mr. Williams went on his usual early morning walk when Mr. Holiday attacked him, hitting him in the head at least seven times and shooting him. Mr. Holiday had broken into a home the night before and stolen the murder weapon. Mr. Holiday had prior felony convictions. His case was returned to the trial court on the issue of mental retardation in June 1990.
Robert Wayne Holsey, 31, was sentenced to death on Feb. 13, 1997, in Morgan County where his trial was moved. In December 1995, he shot to death Baldwin County Sheriff's Deputy Will Robinson, 26. The officer had stopped Mr. Holsey's vehicle after an armed robbery. At the time, Mr. Holsey had been out on parole less than a year following convictions for assault and armed robbery.
Tracy Lee Housel, 38, was sentenced to death in February 1986 in Gwinnett County for the rape and murder of 46-year-old Jean D. Drew. Ms. Drew was in the habit of stopping at a truck stop for a snack after her ballroom dancing lessons. On the night of April 7, 1985, she met Mr. Housel at the restaurant. Her body was found the next day, and he was arrested about a week later in Daytona Beach, Fla., after using her credit cards. He confessed to killing Ms. Drew, killing a man in Texas, and trying to kill two others in Illinois and Texas. He also confessed to murders in California and Tennessee. A decision is pending from the 11th Circuit Court of Appeals on Mr. Housel's federal appeal challenging the fairness of his trial.
Carl J. Isaacs, 43, was sentenced to death in Seminole County in 1974 and again in Houston County at a retrial in 1988. In May 1973 when he was 19 years old, he escaped from a Maryland prison and took off for Florida with his brother Billy, half brother Wayne Coleman and friend George Dungee. On May 14, 1973, they ran out of gas in Seminole County and stopped to burglarize a trailer. Within hours, they had shot to death Jerry Alday, Ned Alday, Jimmy Alday, Chester Alday and Aubrey Alday in addition to raping Mary Alday and then killing her. They were arrested in West Virginia with the murder weapons and items belonging to the Alday family. Billy Isaacs, 15 years old at the time of the killings, received a 40-year sentence. He was taken to Maryland in 1993 to serve a life sentence there for murder. At the 1988 retrial, Mr. Coleman and Mr. Dungee received life sentences.
Jonathen Jarrells, 40, was sentenced to death in March 1988 in Walker County for the robbery and murder of Gertie E. Elrod, a 77-year-old woman. On Aug. 24, 1987, Ms. Elrod and her sister, Lorraine Elrod, were attacked in their home by Mr. Jarrells. He stabbed both with scissors, tied their hands and feet and beat them with an iron. Lorriane survived the attack although she lost the sight in one eye and her hearing in one ear. When arrested in Hazard, Ky., he had items belonging to the Elrod sisters in his possession. In May 1991, Mr. Jarrell's case was sent back to the trial court on the issue of mental retardation.
Lawrence Joseph Jefferson, 42, was sentenced to death in March 1986 in Cobb County for the robbery and killing of his construction job supervisor Edward Taulbee, 37. On May 1, 1985, they went fishing at Lake Allatoona. Later, Mr. Jefferson arrived home in the victim's vehicle and told a neighbor, "My fat little buddy is dead." Mr. Taulbee's body was found the next day; he had been beaten with a stick and then his skull was crushed with a 40-pound tree trunk. In 1979, Mr. Jefferson had pleaded guilty in Louisville to armed robbery and burglary. His first appeal to the state Supreme Court and next state appeal challenging the fairness of his trial have been denied.
Larry L. Jenkins Jr., 21, was sentenced to death in Wayne County for the robbery and killing of the owner of a laundry and her 15-year-old son. Mr. Jenkins accosted Terry Ralston, 37, and her son Michael on Jan. 8, 1993. He kidnapped the mother and son and shot them both to death in a rural area. Although sentenced to death in September 1995, his first appeal to the Georgia Supreme Court hasn't been filed yet.
Ashley Lyndol Jones, 23, was sentenced to death in June 1995 in Coffee County. On March 31, 1993, in Ware County, Mr. Jones and co-defendant Allen Brunner were drinking and driving in a stolen vehicle when it developed car trouble. Mr. Jones knocked on the door at Carlton Keith Holland's home and asked for help. As Mr. Holland, 39, leaned over the engine and his wife watched through the window, Mr. Jones slammed a wrench and later a sledgehammer on Mr. Holland's head. Mr. Brunner was sentenced to life without parole. In March, the state Supreme Court affirmed Mr. Jones' conviction and death sentence.
Brandon Aston Jones, 54, was sentenced to death in October 1979 in Cobb County. On June 17, 1979, he and Van Roosevelt Solomon were arrested at a service station after an officer who just happened to drive up heard gunshots. In the storeroom, the officer found 29-year-old Roger Tackett, the station manager, who had been shot in the legs and arms and beaten before the fatal contact shot was fired behind his left ear. Mr. Solomon also was sentenced to death and he was executed on Feb. 20, 1985. In 1989, a U.S. District Court judge reversed Mr. Jones' sentence, ruling it was unfairly imposed considering the prosecutor's Bible quoting. Mr. Jones is still awaiting a new sentencing trial. In September 1996, the Department of Corrections transferred him off death row and into the general prison population.
Ronald Leroy Kinsman, 39, was sentenced to death April 18, 1987, in Muscogee County for the robbery and murder of a Hardee's manager. Bruce Keeter, 29, was found shot to death the morning of Sept. 14, 1984. About $400 was stolen from the restaurant safe, and Mr. Keeter's car was later found abandoned. Two years later, a friend of Mr. Kinsman's told police Mr. Kinsman had admitted to the murder. In 1976, Mr. Kinsman had been convicted of another robbery-murder and was paroled not long before Mr. Keeter was murdered. A state appeal challenging the fairness of his trial has been pending since December 1995.
J.W. Ledford Jr., 25, was sentenced to death in Murry County with a jury selected from Gordon County in November 1992 for the murder of a neighbor he had known all his life, Dr. Harry Johnston Jr., 73. On Jan. 31, 1992, Mr. Ledford went to the Johnston home and asked his wife, Antoinette, to speak to Mr. Johnston. He forced his way into the home at knife point, demanding money and guns. Mr. Johnston's body was found later, his head nearly cut off and a knife in his back. Mr. Ledford's state appeal challenging the fairness of his trial has been pending since December 1995.
James Allyson Lee, 22, was sentenced to death in June by a Charlton County Superior Court jury. On Nov. 17, 1996, he shot his 43-year-old stepmother, Sharon Varnadore Chancey, to death. Although Mr. Lee pleaded with the jury to spare him because he wasn't the same man who committed murder, when first questioned by police, Mr. Lee said killing was so easy it would be easy to do again.
Larry Lee, 36, was sentenced to death in November 1987 in Wayne County for the robbery and killing of a couple and their 14-year-old son. Clifford and Nina Murray Jones Sr., both 48, and Clifford Jones Jr. were killed April 26, 1988 all had been shot, stabbed and beaten. Mr. Lee's brother Bruce Lee was reportedly also involved in the triple homicide, but he died while committing a burglary two months after the Jones family killings. Mr. Lee's state appeal challenging the fairness of his trial was denied, but the judge was ordered to reconsider it in June 1995 because of new case law.
William Anthony Lipham, 33, was sentenced to death in Coweta County in February 1987 for the rape, robbery, burglary and murder of a 79-year-old woman, Kate Furlow. Mr. Lipham was seen in Ms. Furlow's home on Dec. 4, 1985. The next day, her nude body was found at home with a .25-caliber bullet wound in her head. Mr. Lipham confessed but said he had sex with the elderly woman after she was dead. A state appeal challenging the fairness of his trial has been pending since 1989.
William Earl Lynd, 42, was sentenced to death in February 1990 for killing his girlfriend three days before Christmas 1988. Mr. Lynd was living with 27-year-old Virginia "Ginger" Moore when they got into an argument and he shot her in the face and went outside. Ms. Moore followed him outside where he shot her again and put her in the trunk of his car. When he heard noise from the trunk, he stopped the car and shot her a third time. After burying her body, Mr. Lynd drove to Ohio where he shot and killed another woman. He returned to Georgia and surrendered to police on New Year's Eve. Mr. Lynd had numerous convictions for prior assaults on women. His state appeal challenging the fairness of his trial has been pending since December 1995.
James Mathis, 51, was sentenced to death in Douglas County in May 1991 for killing J.L. Washington and his wife Ruby Washington, both 69. On Thanksgiving Day 1980, Mr. Mathis was seen in the back seat of the Washington's vehicle as they drove through their apartment complex. Their bodies were found in a wooded area. Both had been beaten, stabbed and shot. In 1989, a U.S. District judge reversed Mr. Mathis' death sentence because of ineffective counsel, but in 1992 the 11th Circuit sent the case back to the federal judge to explain the ruling.
Mark Howard McClain, 30, was sentenced to death in Richmond County in September 1995 for the robbery and murder of a Domino's Pizza store manager. In November 1994, Mr. McClain, who had previously been convicted of armed robbery, forced his way into the closed Domino's store and robbed Kevin Brown, 28. As Mr. McClain turned to leave he shot and killed Mr. Brown, an eyewitness testified. The witness got the license tag number off the getaway car and police traced the vehicle to Mr. McClain's girlfriend. Earlier this year, the state Supreme Court affirmed Mr. McClain's conviction and sentence, and in June, the U.S. Supreme Court refused to consider an appeal of that decision.
James R. McDaniel, 23, was sentenced to death in June by a Butts County Superior Court jury. He was convicted of murdering his grandparents Erner and Eugene Barkley, ages 70 and 75, and his 10-year-old stepbrother, Justin Davis. Family members of the victims, also Mr. McDaniel's family, opposed the death penalty for the young man with a history of commitments to mental hospitals and crack addition. Police said Mr. McDaniel robbed his grandfather to buy crack.
Kim Anthony McMichen, 39, was sentenced to death in Douglas County in July 1993 for the shooting deaths of his estranged wife and her boyfriend. On Nov. 16, 1990, he shot Luan McMichen, 27, and Jeff Robinson, 27, and then walked his 8-year-old daughter past the bodies. Ms. McMichen's friends told police he had harassed her since she left him in January 1990 and that he had raped her. Mr. McMichen had no prior criminal convictions. His first appeal to the Georgia Supreme Court hasn't been filed.
Jimmy Fletcher Meders, 36, was sentenced to death in April 1989 in Glynn County for the robbery and murder of a convenience store clerk. Don Anderson, 47, was shot twice as he lay on the floor after being robbed of $38 the night of Oct. 14, 1987. Police say two men with Mr. Meders weren't involved in the killing and they weren't prosecuted. Mr. Meders' current attorneys claims just the opposite that the other two men did the robbery and killing while a drunken Mr. Meders was in the back of the store. All three men had prior felony convictions. Mr. Meders state appeal challenging the fairness of his trial has been pending since April 1993.
Michael Miller, 34, was sentenced to death in November 1988 in Walton County for the robbery and killing of 35-year-old Larry Judson Sneed. On Oct. 29, 1987, Mr. Sneed was driving along a Walton County road when shots were fired at his vehicle and he was forced off the road. Mr. Sneed got out and ran but he was shot in the back and bled to death. Two days before, Mr. Miller and another man had kidnapped a man during a burglary. In January 1995 his case was sent back to the trial court on the issue of mental retardation.
Terry Mincey, 37, was sentenced to death in August 1982 in Bibb County for the robbery and killing of a store clerk, the mother of two small children. On April 12, 1982, Paulette Riggs was working at a convenience store when Mr. Mincey and two others decided to rob it. After making Ms. Riggs hand over the money, he walked her outside where Russell Peterman was pumping gas into his car. Mr. Mincey shot Mr. Peterman in the chest and when he fell, Mr. Mincey shot him again in the face. Ms. Riggs tried to run away, but Mr. Mincey shot her and after she fell, he shot her in the face. Mr. Peterman survived but lost 40 percent of his vision in one eye and lives with a bullet lodged near his spine. Mr. Mincey, a preacher's son, had at least three prior armed robbed convictions in 1977. His two co-defendants in the 1989 killing received life sentences. In September 1996, his federal appeal challenging the fairness of his trial was filed.
Nelson Earl Mitchell, 34, was sentenced to death in January 1990 in Early County for killing Iron City Police Chief Robert Cunningham, 51, during a routine traffic stop. Mr. Mitchell, who had prior convictions for larceny and theft, testified that the white police chief used racial slurs and the gun went off during a struggle. One issue the defense may raise on appeal is an allegation that the jury foreman's husband was sitting in the courtroom and allegedly signaled his wife to vote for death by drawing his finger across his throat. Although it's been more than seven years since his conviction, the first appeal to the Georgia Supreme Court hasn't been filed.
William Mark Mize, 40, was sentenced to death in Oconee County in December 1995 after demanding the jury sentence him to death. The Klansman ordered the killing of William Eddie Tucker, 34, because he was angry Mr. Tucker had messed up an arson job on a crack house in October 1994. Mr. Mize had prior convictions for escape, theft, arson, and being a felon in possession of a firearm. Co-defendants Christopher Hattrup and Mark Allen received life sentences.
Stephen Anthony Mobley, 31, was sentenced to death in Hall County in February 1994. During a Feb. 17, 1991, robbery of a Domino's store, he shot and killed 24-year-old John Copeland Collins. Mr. Mobley had been convicted of burglary and forgery, but he didn't get into violent crimes until 1991 when he began a robbery spree that ended in Mr. Collins' death. While awaiting trial, Mr. Mobley raped his cellmate and had Domino's tattooed on his chest. His state appeal challenging the fairness of his trial has been pending since March 1996.
Larry Eugene Moon, 52, was sentenced to death in Catoosa County in January 1988 for killing 34-year-old Ricky Callahan who had driven to a convenience store to buy his wife some aspirin on Nov. 24, 1984. At the time Mr. Callahan was murdered, Mr. Moon was hiding out in Georgia after committing a Tennessee murder. After killing Mr. Callahan, Mr. Moon drove back to Chattanooga and on Dec. 1, 1984, he robbed an adult book store and kidnapped a female impersonator whom he raped. The next day, he killed another man in Gatlinburg, Tenn., and shot at a woman; then on Dec. 7, 1984 he robbed a Chattanooga convenience store. He was arrested Dec. 14, 1984 in Oneida, Tenn., in another stolen car containing a number of guns, including Mr. Callahan's murder weapon. Mr. Moon's prior record included seven burglaries, three aggravated assaults and escape. Mr. Moon's federal appeal challenging the fairness of his trial was filed in April 1996.
Carzell Moore, 45, was sentenced to death in January 1977 in Monroe County for the Dec. 12, 1976 rape, robbery and murder of 18-year-old Teresa Carol Allen, an honors college student. Mr. Moore met up with Roosevelt Greene the day before the killing. Mr. Greene had just escaped from prison. On Feb. 12, 1976, they robbed the store where Ms. Allen worked, taking her, $466 and her vehicle. Both men raped Ms. Allen and Mr. Moore shot her. Mr. Green was arrested in South Carolina driving Ms. Allen's car. He was sentenced to death and executed Jan. 9, 1985, at the age of 28. Mr. Moore's sentence was overturned once but he was resentenced to death. It was overturned a third time, and a new sentencing trial has been pending since August 1992. Mr. Moore, who has a Web site, was transferred to the general prison population last September.
Ernest Ulysses Morrison, 36, was sentenced to death in November 1987 by Richmond County Superior Court Judge Albert Pickett. Mr. Morrison pleaded guilty to the rape, robbery and murder of a family acquaintance, Mary Edna Griffin, 54, on Jan. 9, 1987. Mr. Morrison asked Judge Pickett to sentence him to death. At the time he killed Mrs. Griffin, he was an escapee from the Aiken jail where he was awaiting trial for rape and robbery. A new sentencing trial to include the issue of mental retardation has been pending in Richmond County Superior Court since June 1993.
Robert L. Newland, 54, was sentenced to death in August 1987 in Glynn County for killing Carol Beatty, a 27-year-old woman who lived across the street from Mr. Newland and his roommate. Mr. Newland used a pocket knife to cut Ms. Beatty, slashing her throat deep enough to cut her vocal cords and her stomach enough for her intestines to show. Ms. Beatty lived for 22 hours after the attack and with an investigator's help she was able to spell out the name of her attacker. Mr. Newland had previously been convicted of a similar assault, but that conviction was reversed on appeal. His state appeal challenging the fairness of his trial has been pending since January 1991.
Curtis Osborne, 27, was sentenced to death in Spalding County in August 1991 for shooting to death two acquaintances Linda Lisa Seaborne, 28, and Arthur Lee Jones, also 28. Mr. Osborne confessed that on Aug. 6, 1990, he shot both people as they sat in a car parked alongside a dirt road. His state appeal challenging the fairness of his trial and sentence has been pending since June 1994.
Lyndon Fitzgerald Pace, 32, was sentenced to death in March 1996 in Fulton County. Mr. Pace committed a series of rapes and murders, mainly preying on elderly women from August 1988 through February 1989. He was convicted of killing women ages 78, 86, 79, 78 and 42. He was also convicted of several burglaries during that time period His first appeal to the Georgia Supreme Court hasn't been filed yet.
Bryan Ashley Parker, 36, was sentenced to death in Douglas County in November 1984 for the sexual assault and murder of an 11-year-old girl June 1, 1984. When Christie Anne Griffith disappeared from her trailer park home, Mr. Parker was among the people police questioned. They later learned he had been convicted in Florida of a child molesting charge. Mr. Parker choked and tried to rape the girl while he left his 2-year-old son sitting a car parked nearby. His federal appeal challenging the fairness of his trial was filed in December.
David Aaron Perkins, 36, was sentenced to death in June in Clayton County for the Aug. 13, 1995, slaying of Herbert Ryals III, a 38-year-old man who lived in the same apartment complex. Prosecutors believe Mr. Perkins, who had a long history of criminal convictions for violence and theft, lured Mr. Ryals to his home to rob him. Mr. Ryals' body was found in the bathroom where he had fledtrying to defend himself from more than 11 stab wounds. During his trial when a Virginia police officer testified how Mr. Perkins had thrown a fellow officer through a window, Mr. Perkins taunted the courtroom by making boxing gestures.
Jack H. Potts, 52, was sentenced to death in March 1976 in two counties Forsyth and Cobb counties for the kidnapping and murder of a 24-year-old good Samaritan, Michael Priest. Mr. Priest agreed to help Mr. Potts, who told him there had been an accident May 8, 1975. His co-defendant pleaded guilty to aggravated assault in exchange for a 10-year sentence. Mr. Potts escaped from the Forsyth County Jail in September 1987 and was shot twice by officers. Mr. Potts' conviction was overturned in May 1984, but he was resentenced to death in 1988 and again 1990.
Virgil Delano Presnell Jr., 43, was sentenced to death in October 1976 in Cobb County. Five months earlier, on May 4, 1976, he kidnapped two school girls . Mr. Presnell lay in wait for the 10- and 8-year-old girls, he confessed. He raped and sodomized the older girl and when 8-year-old Lori Ann Smith tried to run away, he drowned her in a stream. His sentence was overturned in 1992 by a federal appeals court. Mr. Presnell is still awaiting a new sentencing trial.
Mark Anthony Pruitt, 32, was sentenced to death in September 1987 in Pulaski County for the Montgomery County killing of 5-year-old Charise Walker. The girl was found raped, sodomized and beaten Nov. 15, 1986, when she disappeared from home. Charise, who's skull was fractured and leg broken, died a short time later. Mr. Pruitt was seen coming out of the woods where Charise was found. He wasn't wearing any pants and had blood on him. Mr. Pruitt has been awaiting a new sentencing trial on the issue of mental retardation since September 1994.
Timothy Pruitt, 25, was sentenced to death in Lumpkin County in October 1996 for the stabbing and strangulation killing of a 10-year-old neighbor girl. Wendy Nicole Vincent was killed in her own home. Mr. Pruitt's first appeal to the Georgia Supreme Court has not been filed yet.
William Howard Putman, 54, was sentenced to death in September 1982 in Cook County. Mr. Putnam, who had no prior felony record, attacked and robbed people at a truck stop the night of July 10, 1980, killing William Gerald Hodges, 49, David N. Hardin, 22, and Katie Christine Back, 28. His state appeal challenging the fairness of his trial was denied, as was his appeal of that to the state Supreme Court in September 1995.
Willie James Pye, 29, was sentenced to death in Spalding County in July 1996. He was convicted of the November 1993 rape, sodomy and shooting death of a 21-year-old woman in a supposed drug deal gone bad. His co-defendant was sentenced to life in prison. Mr. Pye still claims he's innocent and a motion for a new trial is pending.
Billy Daniel Raulerson Jr., 27, was sentenced to death in March 1996 in Chatham County for a Memorial Day 1993 killing spree. Mr. Raulerson killed 18-year-old Charlye Dixon and her fiance, 19-year-old Jason Hampton, raping Ms. Dixon after her murder. Mr. Raulerson then broke into the home of Teresa Gail Taylor, 40, and killed her. His first possible appeal to the Georgia Supreme Court has not been filed yet.
James Randall Rogers, 36, was sentenced to death in May 1982 in Floyd County for the torture and killing of a 75-year-old woman. On May 21, 1980, Grace Perry died when a rake handle was forced up her vagina so hard it punctured a lung, causing massive hemorrhaging. At the time of the killing, Mr. Rogers was on parole for burglary. Mr. Rogers' case has been pending in the trial court since 1994 on the issue of mental retardation.
Larry Romine, 45, was sentenced to die in April 1982 in Pickens County for the shotgun slayings of his parents, Roy Lee, 48, and Aville R. Romine, 50. Police say robbery was the motive for the March 19, 1991, double homicide. Mr. Romine's death sentence was reversed by the Georgia Supreme Court in June 1983, but he was resentenced to death again in August 1985. His federal appeal challenging the fairness of his trial was filed in 1996.
William C. Sallie, 31, was sentenced to death in March 1991 in Bacon County for killing his 41-year-old ex-father-in-law. In a violent rampage against his ex-wife and her family on March 31, 1990, Mr. Sallie shot to death John Lee Moore and wounded Mr. Moore's wife. He then kidnapped his ex-wife and her sister and took them to Liberty County where he repeatedly raped both women. His first possible appeal to the Georgia Supreme Court has not been filed yet.
Demarcus Ali Sears, 25, was sentenced to death in September 1993 in Cobb County. He and Phillip Williams kidnapped Gloria Ann Wilbur, 59, on Oct. 7, 1990, and then robbed, raped, stabbed and beat her with brass knuckles over a four-hour period. Mr. Williams was sentenced to two life sentences in May 1991. Mr. Sears first appeal to the Georgia Supreme Court has not been filed yet.
David Phillip Smith, 20, was sentenced to death Jan. 24 in Clayton County. He was convicted of the shotgun slaying of 16-year-old Jeremy Javies, a friend and neighbor. Mr. Smith methodically shot Jeremy in the arms and legs before putting the barrel of a sawed-off shotgun in the teen-ager's mouth and firing a final time. The first appeal to the state Supreme Court hasn't been filed yet.
Norris Speed, 26, was sentenced to death in October 1993 in Fulton County for killing a police officer, 32-year-old Niles Johantgen, known on his beat as "Russian." Prosecutors contended Mr. Speed was angry with Officer Johantgen who had arrested a man selling drugs from Mr. Speed's home, and for stopping and patting down three friends on Dec. 12, 1991. Witnesses said Mr. Speed walked up behind Officer Johantgen and shot him in the head. Mr. Speed had prior felony convictions. His first possible appeal to the state Supreme Court hasn't been filed yet.
Ronald Keith Spivey, 57, was sentenced to death in August 1977 in Muscogee County for shooting to death Columbus Police Officer Billy Watson, 41. The officer was off-duty on Dec. 28, 1976, when Mr. Spivey was in the process of robbing a lounge. Officer Watson, a six-year veteran officer, was married with three children. A federal appeal challenging the fairness of his trial has been pending since November 1995.
William Kenny Stephens, 49, was sentenced to death in Richmond County in February 1980 and again in November 1989. The second jury heard evidence of Mr. Stephens' schizophrenia and mental retardation but found death was the appropriate punishment for the shooting death of Investigator Larry D. Stevens, 38. The state Supreme Court sent Mr. Stephens' case back to Richmond County Superior Court for an answer to a question nearly seven years ago. The case has been pending every since.
Alphonso Stripling, 39, was sentenced to death in July 1989 in Douglas County. Mr. Stripling, who served time for armed robberies in 1973, 1979 and 1980, was convicted of shooting four co-workers on Oct. 15, 1988, when he decided to rob the fast food restaurant. Two of the employees 19-year-old Anthony Evans and 34-year-old Gregory Bass died from gunshot wounds. A state appeal challenging the fairness of his trial has been pending since June 1995.
Keith Bryan Taylor, 43, was sentenced to death in October 1990 in Pierce County for killing his 29-year-old estranged wife the day he received a court order to stay away from her. When an officer went to check on Lorrie Taylor on Jan. 12, 1989, Mr. Taylor answered the door dripping blood. The jury rejected an insanity defense by Mr. Taylor, who had been hospitalized for paranoid schizophrenic in 1987 and 1988. His state appeal challenging the fairness of his trial has been pending since December 1995.
Bryan Keith Terrell, 29, was sentenced to death in January 1995 in Newton County for the robbery and murder of 70-year-old John Henry Watson. Mr. Terrell had been released on parole about two months before Mr. Watson's June 22, 1992, murder. Mr. Terrell had forged about $8,000 in checks on Mr. Watson's bank account before the killing. Mr. Watson was beaten in the head and shot four times. Mr. Terrell's first possible appeal to the state Supreme Court hasn't been filed yet.
Keith Leroy Tharpe, 39, was sentenced to death in January 1991 in Jones County for the shotgun slaying of his 29-year-old sister-in-law, Jacqueline Freeman. On Sept. 25, 1990, Mr. Tharpe, who had repeatedly threatened and harassed his estranged wife and her family, used his vehicle to force his wife's car off the road. After shooting Ms. Freeman twice, he kidnapped and raped his estranged wife. Mr. Tharpe's only prior arrests were for driving violations. The state Supreme Court ordered the trial court to reconsider Mr. Tharpe's sentence, and that has been pending since February 1993.
Gary Chad Thomason, 21, was sentenced to death in Floyd County in October 1996. Mr. Thomason was convicted of killing 34-year-old Jerry Self, who was shot in his truck in his own driveway when he interrupted a burglary. Mr. Thomason's defense attorney had him plead guilty and waive a jury trial, leaving a judge to determine his punishment. The Supreme Court affirmed his conviction and sentence in July.
Ronnie Thornton, 32, was sentenced to death in November 1992 in Douglas County for the beating death of his girlfriend's 2-year-old daughter, Artealia Lavant, on May 7, 1991. Doctors determined Artealia and her siblings had been repeatedly abused. The state Supreme Court reversed Mr. Thornton's convictions in May 1994 because the prosecutor used videotaped testimony instead of calling the children to testify. A retrial hasn't been held yet and Mr. Thornton was transferred off death row in September. Artealia's mother, Shirley Lavant, pleaded guilty to cruelty to children and received a four-year sentence.
William Lamar Todd, 40, was sentenced to death in May 1989 in Harris County. On July 12, 1988, a co-worker found the body of Randy Churchwell, 33, at his home. Mr. Churchwell had been hit at least 12 times with a hammer. Mr. Todd later told police that he and his girlfriend stole Mr. Churchwell's wallet and car and headed to Texas where they were arrested two weeks later. Mr. Todd's only prior conviction was for simple possession of marijuana in Florida. A state appeal challenging the fairness of his trial has been pending since December 1995.
Johnny Lamar Wade, 41, was sentenced to death in March 1987 in Newton County for the strangulation killing of 13-year-old Lance Barnes. The boy disappeared Aug. 8, 1986, after riding his bike to the store. Lance was seen leaving the store with Mr. Wade, his bike in the back of Mr. Wade's pickup truck. Lance's body was found the next day in the woods, his bike nearby. He had been beaten on the head and strangled. The Georgia Supreme Court reversed Mr. Wade's death sentence, but he was resentenced to death by another jury in April 1989. His state appeal challenging the fairness of his second trial has been pending since January 1994.
Tommy Lee Waldrip, 51, was sentenced to death in October 1994 in Dawson County for killing an eyewitness to a robbery that his son committed. Keith Evans, 23, was beaten and shot to death on April 13, 1991. Mr. Waldrip's son John Mark Waldrip and friend Howard Kelly Livingston were both sentenced to life in prison. In March the Georgia Supreme Court affirmed Mr. Waldrip's conviction and sentence. In July, the state Supreme Court overturned Mr. Livingston's conviction.
Jamie Ray Ward, 41, was sentenced to death in July 1991 in Walker County for killing a 23-year-old woman who was five months pregnant. Investigators believe Mr. Ward was a serial rapist whose crimes escalated to murder on Aug. 17, 1989, when he abducted Nikia Gilbreath from her home. Mr. Ward was arrested months later after he kidnapped and raped a woman in another county and police found items belong to Mrs. Gilbreath at his home. Mr. Ward's state appeal challenging the fairness of his trial has been pending since April 1993.
Eurus Kelly Waters, 52, was sentenced to death in January 1981 in Glynn County for killing a teen-age girl and a woman. On April 25, 1980, emergency workers found 35-year-old Kathryn Ann Culpepper bleeding from a chest wound. She described Mr. Waters and his car and told police that she and her friend, 16-year-old Anita Lynette Paseur, were fishing when accosted. Anita's body was found that night on a back road, and Ms. Culpepper died five days later. Mr. Waters, a Waycross cab driver, had been treated for mental illness since 1978. His case was sent back to the trial court on the issue of mental retardation in December 1995.
Marcus Wellons, 41, was sentenced to death June 1993 in Cobb County. In December, Mr. Wellons came within three hours of execution because an attorney who had just volunteered to file an appeal petition was denied time to study the case. A U.S. District judge stayed the execution. Mr. Wellons was convicted of the rape and murder of 15-year-old India Roberts who lived in the same apartment building as Mr. Wellons' girlfriend on the morning of Aug. 31, 1989.
Frederick R. Whatley, 23, was sentenced to die in Spalding County this year for the Nov. 3, 1993, robbery and beating death of a McDonald's restaurant employee. The 18-year-old victim, Mark Fugate, was a key witness against his own father, Wallace Marvin Fugate III, who killed his mother and is now on death row in Georgia. Mr. Whatley's co-defendant Jeffery Cross hasn't been tried yet. Mr. Whatley's first appeal to the Georgia Supreme Court hasn't been filed yet.
Alexander E. Williams, 29, was sentenced to death in Richmond County in August 1986 for the kidnapping, robbery, rape and murder of 16-year-old Aleta Carol Bunch. She disappeared March 4, 1986. Her body was found 11 days later after Mr. Williams' then attorney told police where to look. Mr. Williams had prior convictions for theft and entering an automobile. In August, U.S. District Judge Dudley H. Bowen Jr. denied Mr. Williams' federal appeal challenging the fairness of his trial.
Willie James Wilson Jr., 40, was sentenced to death in February 1982 in Pierce County for the shooting deaths of two men during an armed robbery. Alfred Boatwright, 64, and Morris Highsmith, 58, were shot to death June 22, 1981 at Mr. Boatright's handyman store. At the time, Mr. Wilson was a soldier who was AWOL from Fort Stewart. In March 1991, Mr. Wilson's case was sent back to the trial court on the issue of mental retardation.
Davis v. State, 263 Ga. 5, 426 S.E.2d 844 (Ga. 1993). (Direct Appeal)
Defendant was convicted in the Superior Court, Chatham County, James W. Head, J., of murder, obstruction of law enforcement officer, aggravated assault and possession of firearm during commission of felony. Defendant appealed. The Supreme Court, Hunt, P.J., held that: (1) denial of severance of two aggravated assault counts was not an abuse of discretion; (2) prosecutor raised neutral reasons for use of peremptory strikes against black prospective jurors; and (3) evidence supported statutory aggravating circumstances that murder was committed against police officer while engaged in performance of official duties and murder was outrageously or wantonly vile, horrible or inhuman. Affirmed.
HUNT, Presiding Justice.
Troy Anthony Davis was convicted by a jury in Chatham County of murder, obstruction of a law enforcement officer, two counts of aggravated assault and possession of a firearm during the commission of a felony. He was sentenced to death for the murder. He appeals. We affirm.FN1
FN1. The crime occurred on August 19, 1989. The trial began August 19, 1991 and ended August 30. Davis filed a motion for new trial. Soon thereafter, Davis' trial attorneys were appointed to represent him on appeal, while a new attorney was appointed to review the record for effective assistance of counsel. On March 16, 1992, the trial court denied the motion for new trial on all grounds, including the ineffective assistance of counsel claim raised by the new attorney. In case number S92P1187, Davis, represented by the new attorney, appeals from the denial of his motion for new trial as to the ineffectiveness claims. In case number S92P1186, Davis, represented by trial counsel, appeals from the denial of the motion for new trial on all other grounds. Since the two cases are essentially one appeal from the judgment below, they were consolidated for oral argument on October 13, 1992, and for decision.
1. At midnight on August 18, 1989, the victim, a police officer, reported for work as a security guard at the Greyhound bus station in Savannah, adjacent to a fast-food restaurant. As the restaurant was *6 closing, a fight broke out in which Davis struck a man with a pistol. The victim, wearing his police uniform-including badge, shoulder patches, gun belt, .38 revolver and nightstick-ran to the scene of the disturbance. Davis fled. When the victim ordered him to halt, Davis turned around and shot the victim. The victim fell to the ground. Davis, smiling, walked up to the stricken officer and shot him several more times. The officer's gun was still in his holster.
The victim wore a bullet-proof vest, but the vest did not cover his sides and the fatal bullet entered the left side of his chest, penetrated his left lung and aorta, and came to rest at the back of his chest cavity. The officer was also shot in the left cheek and the right leg.
The next afternoon, Davis told a friend that he had been involved in an argument at the restaurant the previous evening and struck someone with a gun. He told the friend that when a police officer ran up, Davis shot him and that he went to the officer and “finished the job” because he knew the officer got a good look at his face when he shot him the first time.
After his arrest, Davis told a cellmate a similar story.
2. There is no merit to the defendant's contention that he was not guilty of the felony offense of obstructing a law-enforcement officer “in the lawful discharge of his official duties” (OCGA § 16-10-24(b)) because the officer was “moonlighting” as a security guard when he was shot. Loumakis v. State, 179 Ga.App. 294(3), 346 S.E.2d 373 (1986); Carr v. State, 176 Ga.App. 113(1), 335 S.E.2d 622 (1985).
3. The defendant contends it was error to deny his motion to sever the two aggravated assault counts-one based upon the defendant's attack upon a customer at the restaurant which led to the victim's intervention and death, and the other based on a shooting less than two hours earlier in which the defendant, using the same gun involved in the murder and the other aggravated assault, shot another person with whom he was angry.
A denial of severance is reviewed under an abuse of discretion standard. Booker v. State, 231 Ga. 598, 203 S.E.2d 194 (1974). Offenses may be tried together when they are based on the same conduct or constitute a series of acts connected together (or when they constitute part of a single scheme or plan). Dingler v. State, 233 Ga. 462, 211 S.E.2d 752 (1975).
Here, all the offenses are connected: they occurred the same evening; the same gun was involved; the second assault was the reason the victim tried to arrest the defendant; and there was some evidence that one reason he shot the officer was because he was afraid he had been seen in the area where the first assault had occurred. The denial of severance was not an abuse of discretion. Stewart v. State, 239 Ga. 588(3), 238 S.E.2d 540 (1977).
4. The evidence supports the conviction on all counts. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
5. Only 20 per cent of the prospective jurors were excused for bias or prejudice arising from their knowledge of the case or of people involved in the case. The defendant has shown neither actual prejudice in the jury selection process nor the kind of extensive and inflammatory publicity that mandated a change of venue in our recent case of Tyree v. State, 262 Ga. 395, 418 S.E.2d 16 (1992).FN2 There was no error in the denial of the defendant's motion for change of venue. FN2. A significant factor in our disposition of the Tyree case was that the district attorney and various law enforcement officers were largely responsible for much of the inflammatory publicity. This case does not involve the “fanning of flames” by persons who ought to know better.
6. Death-penalty qualification of prospective jurors is not unconstitutional. Ford v. State, 257 Ga. 461(3), 360 S.E.2d 258 (1987).
7. The trial court did not err by restricting voir dire examination about parole. Isaacs v. State, 259 Ga. 717, 732(24), 386 S.E.2d 316 (1989).
8. As we held in Pope v. State, 256 Ga. 195, 202, 345 S.E.2d 831 (1986): “Any error regarding a prospective juror qualified 43rd or later on the panel is harmless, unless it becomes necessary to use an alternate juror.” Any issue as to the refusal to disqualify prospective juror Daniel is therefore moot.
9. The trial court's determination that jurors Smith and Truitt were qualified to serve as jurors is within the deference due the trial court's findings. Jefferson v. State, 256 Ga. 821, 824, 353 S.E.2d 468 (1987).
10. The jury which convicted Davis and sentenced him to death was comprised of seven blacks and five whites. Although intuitively it might be difficult to discern what a defendant has to complain about when he obtains a majority-black jury in a county that is 64% white, nevertheless the prosecutor did, as the defendant contends, exercise a disproportionate percentage of his strikes against African-Americans, using 8 out of his 10 allotted strikes against blacks (80%) in selecting from a venire that was 43% black (18 out of 42). Therefore, the trial court correctly sought the prosecutor's explanation for his exercise of strikes.FN3
FN3. Especially since the U.S. Supreme Court made it clear in Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), that defendants have no more right to discriminate racially in the exercise of their peremptory challenges than prosecutors, it is clear that the prosecutor would not be justified in striking disproportionately against one race to counter disproportionate strikes by the defendant against another race. The remedy against defense discrimination would be a Batson challenge by the state against the defendant, not race-based peremptories by the prosecutor. It follows, then, that where a prosecutor has disproportionately struck members of one race in the exercise of his peremptories, it is not sufficient rebuttal to rely on the composition of the jury as selected. The prosecutor must sufficiently justify his own strikes on neutral grounds, not imply that the defendant's strikes have been non-neutral.
In this case, the prosecutor offered the kind of “concrete, tangible, race-neutral and neutrally-applied reasons” that are sufficient to rebut a prima facie case under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Ford v. State, 262 Ga. 558, 560, 423 S.E.2d 245 (1992).
The prosecutor explained that he struck five of the eight because of their clear reluctance to impose a death sentence. As we have held:
A prospective juror's conscientious aversion to the imposition of a death sentence is an adequate reason to justify a peremptory strike in a death-penalty case. [Cit.] [ Tharpe v. State, 262 Ga. 110, 112(6), 416 S.E.2d 78 (1992) .]
Of course, a prosecutor would not be justified in assuming a sentencing bias from the race of a juror any more than the prosecutor could assume a bias against the prosecution generally. Batson v. Kentucky, supra, 476 U.S. at 97, 106 S.Ct. at 1723. However, the answers of these five prospective jurors amply support the prosecutor's suspicions about their willingness to impose a death sentence. FN4. One initially stated she would automatically vote for life. Although she withdrew from that position, she remained adamant that she preferred life and was “not really in favor of” the death penalty. Another testified that “as a Christian” he did not believe he could “choose” a death sentence. The remaining three gave similar answers.
We note that these five jurors represent a relatively small percentage of the total number of black prospective jurors.
Another juror was struck because he testified the defendant “lived out in the area where some of my relatives live” and because he referred to the defendant by his first name even though he denied knowing him personally. As we said in Hall v. State, 261 Ga. 778, 780(2)(a), 415 S.E.2d 158 (1991):
A reasonable suspicion about a prospective juror's impartiality that falls short of justifying an excusal for cause might well justify the exercise of a peremptory strike.
The trial court was authorized to conclude that such is the case here. That the juror, whose relatives lived in the same area as the defendant, referred to the defendant by his first name might mean nothing, but the prosecutor's suspicions were not unreasonable.
A seventh juror was struck because he testified he used to work with the defendant's mother and aunt, and he admitted that knowing them would affect his “ability to reach a fair decision in the case.” The last juror was struck because the police came to her house to arrest her son for burglary and because her daughter “got into a rash of shoplifting” and was receiving psychiatric treatment for her problem. The prosecutor had legitimate, neutral and non-racial reasons to strike these two jurors. Ibid.
The record supports the trial court's determination that the state successfully rebutted the prima facie case.
11. The state is under a duty to reveal any understanding or agreement with a witness concerning criminal charges pending against that witness. Patillo v. State, 258 Ga. 255(4), 368 S.E.2d 493 (1988); Jolley v. State, 254 Ga. 624(5), 331 S.E.2d 516 (1985). In this case, there was “no suppression of any understanding or agreement for prosecutorial leniency,” Isaacs v. State, 259 Ga., supra at 729(17), 386 S.E.2d 316 and no grounds for reversal.
12. There was no error in the admission of photographs of the victim. Love v. State, 259 Ga. 468(2), 383 S.E.2d 897 (1989); Scott v. State, 250 Ga. 195(2), 297 S.E.2d 18 (1982).
13. Our death penalty laws are not unconstitutional for any reason alleged.
14. There was no error in requiring defense mitigation witnesses to testify subject to cross-examination and not allowing the defense merely to introduce in evidence written letters from family members and neighbors. Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), does not, as the defendant contends, hold that hearsay evidence must be admitted at the sentencing phase of a death-penalty case. Isaacs v. State, 259 Ga., supra at 737(37), 386 S.E.2d 316.
15. Although at one point in its charge the court referred to finding statutory aggravating circumstances “beyond a reasonable doubt” without mentioning the additional requirement of unanimity, the court's charge contained numerous references to the unanimity requirement. The jury could not have been misled. FN5. The state argues that the poll of the jury shows that its verdict was unanimous. We do not decide whether the results of the jury poll could substitute adequately for an omission to charge the unanimity requirement.
16. The jury found two statutory aggravating circumstances:
(1) The offense of murder was committed against a peace officer while engaged in the performance of his official duties and (2) the murder was outrageously or wantonly vile, horrible or inhuman, in that it involved aggravated battery to the victim prior to the death of the victim. [Record, p. 2717].
See OCGA § 17-10-30(b)(7) and (b)(8). The evidence shows that the victim, wearing his official uniform, in the course of his official duties, ordered the defendant to halt as the latter fled after committing an aggravated assault. Instead of halting, the defendant shot the victim in the face, seriously disfiguring it. He then walked up to the victim as he lay on the ground and inflicted the fatal wound to the chest. The evidence supports the statutory aggravating circumstances found by the jury. OCGA § 17-10-35(c)(2); see OCGA § 16-5-24(a); Davis v. State, 255 Ga. 588, 593(3)(a), 340 S.E.2d 862 (1986).
17. Davis contends his trial counsel was ineffective for failing to object to certain evidence and charges, for not requesting certain jury charges, and for not recalling a witness for additional cross-examination. The record supports the trial court's determination that Davis has shown neither deficient attorney performance nor actual prejudice and, therefore, has failed to show he was denied effective assistance of counsel. Ferrell v. State, 261 Ga. 115(3), 401 S.E.2d 741 (1991).
18. We do not find that the sentence of death was imposed under the influence of passion, prejudice or other arbitrary factor. OCGA § 17-10-35(c)(1). The death sentence in this case is neither excessive nor disproportionate to penalties imposed in similar cases, considering both the crime and the defendant. OCGA § 17-10-35(c)(3). The similar cases listed in the Appendix support the imposition of a death sentence in this case.
Judgment affirmed.
Davis v. Turpin, 273 Ga. 244, 539 S.E.2d 129 (Ga. 2000). (State Habeas)
Habeas petitioner was convicted in the Superior Court, Chatham County, James W. Head, J., of murder, obstruction of law enforcement officer, aggravated assault, and possession of firearm during commission of felony. Petitioner appealed. The Supreme Court, Hunt, P.J., 263 Ga. 5, 426 S.E.2d 844, affirmed. Petitioner sought habeas corpus relief. The Superior Court, Butts County, John M. Ott, J., denied the petition. Petitioner appealed. The Supreme Court, Hunstein, J., held that: (1) it was irrelevant to proportionality review that some death sentences used for comparison ultimately resulted in reversal and re-sentencing to life imprisonment; (2) newly appointed attorney did not operate under a conflict of interest by having a friendly acquaintance with trial counsel whose effectiveness was being challenged; (3) the trial counsel did not operate under a conflict of interest while the newly appointed attorney was challenging his effectiveness; and (4) failure to raise constitutional claims on direct appeal barred them. Affirmed. Benham, C.J., filed a dissenting opinion in which Fletcher, P.J., and Sears, J., joined.
HUNSTEIN, Justice.
Troy Anthony Davis was tried, convicted and sentenced to death in August 1991 for the killing of a law enforcement officer and other crimes. He appealed in 1992; this Court affirmed his conviction and sentence in Davis v. State, 263 Ga. 5, 426 S.E.2d 844 (1993). Davis filed a petition for a writ of habeas corpus in the Superior Court of Butts County in March 1994. The habeas court conducted an evidentiary hearing in December 1996 and denied Davis's amended petition in an order filed on September 9, 1997. This Court granted Davis's application for a certificate of probable cause to appeal on February 24, 2000, and ordered the parties to address four issues. We affirm.
1. Davis argued in his habeas petition that execution by electrocution is cruel and unusual punishment. Although he raised other arguments on direct appeal in support of his contention that Georgia's death penalty laws constitute cruel and unusual punishment, the argument that the use of electrocution renders those laws unconstitutional was raised for the first time in his habeas petition. We agree with the habeas court that this issue was procedurally barred by not being raised and litigated at the first available opportunity. Black v. Hardin, 255 Ga. 239, 336 S.E.2d 754 (1985). The procedural bar to claims that are raised for the first time in a habeas proceeding exists to prevent litigants from reserving meritorious issues on direct appeal in an effort to interpose needless delay to the complete resolution of their cases. Id., 255 Ga. at 239-240(3), and (4). Accordingly, Georgia law directs habeas courts to “consider whether [a petitioner has] ... complied with Georgia procedural rules at trial and on appeal” and further provides that “absent a showing of cause for noncompliance with such requirement, and of actual prejudice, habeas corpus relief shall not be granted.” OCGA § 9-14-48(d), see Turpin v. Mobley, 269 Ga. 635, 637(2), 502 S.E.2d 458 (1998). We agree with the habeas court that Davis has not made the required showing of cause necessary to overcome the procedural bar to defaulted claims.
2. This Court reviewed Davis's death sentence on direct appeal and found that it was “neither excessive nor disproportionate to penalties imposed in similar cases, considering both the crime and the defendant.” Davis, supra, 263 Ga. at 10(18), 426 S.E.2d 844. We decline Davis's invitation to re-examine the proportionality of his sentence. Contrary to Davis's argument, the method by which this Court conducts its proportionality review satisfies Georgia statutory requirements and is not unconstitutional. Gissendaner v. State, 272 Ga. 704(16), 532 S.E.2d 677 (2000).
Davis also contends that this Court should reevaluate his death sentence in light of the fact that some of the death sentences to which his sentence was compared by this Court on direct appeal have ultimately resulted in reversal and re-sentencing to life imprisonment. We have said the following about our proportionality review of death sentences:
It is the reaction of the sentencer to the evidence before it which concerns this court and which defines the limits which sentencers in past cases have tolerated, whether before or after [ Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)]. When a reaction is substantially out of line with reactions of prior sentencers, then this court must set aside the death penalty as excessive. Ross v. State, 233 Ga. 361, 366-367(2), 211 S.E.2d 356 (1974). Because it is a jury's reaction to the evidence before it that concerns this Court in its proportionality review, it is irrelevant if the sentences in the cases used for comparison were already at the time, or later are, reversed for reasons unrelated to the juries' reactions to the evidence.
Finally, Davis contends that other defendants have received sentences less than death for crimes of similar gravity. In light of the severely aggravated nature of Davis's crime, we find no merit in his contention that the death penalty would be unlawfully disproportionate in his case, even if a new proportionality analysis were undertaken. See Gissendaner v. State, supra, 272 Ga. at 716(19)(a), 532 S.E.2d 677.
3. After Davis was convicted and sentenced to death, the trial court appointed additional counsel to represent Davis during the motion for a new trial and direct appeal regarding any claims of ineffective assistance of trial counsel. Davis's original trial counsel remained responsible for all other issues during that time. Davis argues that his new counsel and his trial counsel operated under a conflict of interest and that habeas corpus relief is required, even absent a showing of actual prejudice.
(a) Whether a conflict of interest served to deny Davis his right to effective counsel during his motion for new trial and direct appeal is a mixed question of law and fact, and we review the questions of law involved de novo. Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Turpin v. Lipham, 270 Ga. 208(3), 510 S.E.2d 32 (1998).
A conflict of interest would warrant reversal if it rendered counsel's assistance ineffective under constitutional standards. See Cuyler, supra, 446 U.S. at 335(IV), 100 S.Ct. 1708; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As with any claim of ineffective assistance of counsel, there must be a showing of constitutionally deficient performance by counsel and of resulting prejudice. However, Cuyler recognized that sufficient prejudice may be presumed in a post-conviction proceeding in certain limited circumstances, namely, where the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance. Id., 446 U.S. at 348(IV), (B, C), 100 S.Ct. 1708. While this more lenient standard of proof has traditionally been applied to cases where one attorney represented more than one defendant, Davis argues that this standard should also apply to his case where the alleged conflict of interest arose between Davis and his counsel. See United States v. Moree, 220 F.3d 65, 69 (2nd Cir.2000); Riggs v.. United States, 209 F.3d 828(II)(B) (6th Cir.2000); but see Beets v. Scott, 65 F.3d 1258(II) (5th Cir.1995).
We need not directly decide this disputed question at this time, however, because we find that Davis's claims fail even assuming, as we do below, the applicability of the more lenient Cuyler standard. Generally, “the possibility of a conflict [of interest] is insufficient to impugn a criminal conviction.” Cuyler, supra, 446 U.S. at 350(IV)(C), 100 S.Ct. 1708. While certain circumstances might so strongly suggest the likelihood of an actual conflict of interest that a trial court would be expected to conduct an inquiry sua sponte, we do not find that such circumstances existed in Davis's case. See id., 446 U.S. at 347, 100 S.Ct. 1708 (“[u]nless the trial court knows or reasonably should know that a particular conflict exists, the trial court need not initiate an inquiry”); Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981) (finding that “the possibility of a conflict of interest was sufficiently apparent at the time ... to impose upon the court a duty to inquire further”); Dawan v. Lockhart, 31 F.3d 718(II) (8th Cir.1994); United States v. Levy, 25 F.3d 146(I)(A)(3) (2nd Cir.1994); Wilson v. Morris, 724 F.2d 591(II), (III) (7th Cir.1984) (“[t]he record in this case is devoid of special circumstances requiring a judicial inquiry,” id. at 595(III)). Furthermore, Davis raised no objections before the trial court suggesting his attorneys' loyalties were potentially divided, which, had they been raised, might arguably affect his present burden to show an actual conflict of interest. Compare Wilson, supra, 724 F.2d at 593 (“[a] constitutional violation occurs, and proof of an actual conflict is not required, when a defendant's attorney objects to joint representation and the trial court overrules the objection without exploring the basis of the objection or the adequacy of the representation in the face of a potential conflict of interest”); see Cabello v. United States, 188 F.3d 871, 875(II) (7th Cir.1999) (“[t]he extent to which the defendant must demonstrate prejudice depends on whether and to what extent the conflict was brought to the attention of the trial judge”). Thus, Davis bears the burden to show that an actual conflict of interest adversely affected his attorneys' performance. See Smith v. Anderson, 689 F.2d 59, 65(III) (6th Cir.1982) (“[w]hen the defendant, individually or through his legal representative, fails to raise his concern for a conflict in a timely fashion, an ‘actual conflict of interest adversely affect(ing) his lawyer's performance’ must be established”).
(b) We first address Davis's contention that the new attorney appointed to raise claims of ineffective assistance during his motion for a new trial and direct appeal operated under a conflict of interest. The habeas court found that Davis's new counsel “zealously and competently represented Davis's interests in challenging the effectiveness of the primary defense team's assistance at trial” and that there was “no support” for the allegation that Davis's new counsel failed in his professional duties as a result of the friendly acquaintance he had with Davis's trial counsel. This mixed finding of law and fact is supported by the record. In context, counsel's statement that there was no “adversarial relationship” between himself and Davis's trial counsel shows merely that the two attorneys related to one another in a congenial and professional manner, not that ineffective assistance claims were not zealously prosecuted. Counsel prosecuting an ineffective assistance claim must be free to operate independently of the attorney whose performance is in question. See Ryan v. Thomas, 261 Ga. 661, 662, 409 S.E.2d 507 (1991); see also Kennebrew v. State, 267 Ga. 400, 401-402(2), 480 S.E.2d 1 (1996). In this case, the record supports the habeas court's finding that Davis's new counsel operated with appropriate independence and took adequate steps to examine trial counsel's performance by reviewing the record, by investigating matters outside the record, and by interviewing Davis both inside and outside the presence of his trial counsel.
Because nothing in the trial court or habeas court records suggests that Davis's supplemental appellate counsel had divided loyalties or allowed his actions to be in any way negatively affected by the simultaneous representation, we conclude that the habeas court did not err in finding that Davis's new counsel was not operating under an actual conflict of interest.
(c) Davis also contends that his original trial counsel began operating under a conflict of interest once new counsel was appointed to pursue ineffective assistance claims. Again, we conclude that he has failed to show that an actual conflict of interest existed.
Davis's original counsel was responsible for raising alleged trial court error during Davis's motion for new trial and direct appeal. Davis suggests that counsel's loyalties were divided between his duty to argue zealously meritorious issues on Davis's behalf and his own interest in defending himself against claims that he had rendered ineffective assistance during Davis's trial. However, nothing in the record suggests that Davis's original counsel withheld his best efforts or was distracted because his professional reputation was subjected to scrutiny. The record shows that Davis's original counsel encouraged Davis to speak freely and confidentially with his new counsel about any concerns Davis might have had concerning his representation at trial and even suggested several possible areas for examination to Davis's new counsel. Accordingly, we accept the habeas court's factual finding that Davis's original counsel continued to serve Davis's interests and took active steps to facilitate the efforts of Davis's new counsel to do the same. See Carter v. Armontrout, 929 F.2d 1294, 1300 (8th Cir.1991) (applying Cuyler and accepting state court's credibility and factual finding that attorney who was being sued by her client during criminal proceeding had not compromised her loyalty to her client); Iowa v. Thompson, 597 N.W.2d 779(II)(B)(2) (Iowa 1999) (finding no evidence that attorney's potential criminal charges against his client for assaulting him in court had created an actual conflict of interest).
As found by a Federal court of appeals in another case of alleged conflict of interest, we find that “any conflict that might have stemmed from [counsel's] interest in protecting his professional standing evaporated” when he took active, professionally-responsible steps to facilitate the litigation of Davis's claims of ineffective assistance. Fields v. Attorney General of State of Md., 956 F.2d 1290, 1298-1299(III) (4th Cir.1992). Accordingly, we conclude that the habeas court did not err in finding that Davis's original counsel did not operate under an actual conflict of interest during Davis's motion for new trial and direct appeal.
[12] 4. Davis claimed in the habeas court that his constitutional rights were denied by his alleged absence during critical stages of his trial proceedings. Davis also claimed that his appellate counsel rendered ineffective assistance in failing to raise the issue of his alleged absence on direct appeal. We hold that the habeas court correctly determined that this claim was procedurally defaulted because it was not raised on direct appeal and find that the procedural bar erected by the failure to raise this claim on direct appeal has not here been overcome by a showing of sufficient cause and prejudice. Turpin v. Todd, 268 Ga. 820(2)(a), 493 S.E.2d 900 (1997).
Judgment affirmed. All the Justices concur, except BENHAM, C.J., FLETCHER, P.J., and SEARS, J., who dissent.
BENHAM, Chief Justice, dissenting.
I respectfully disagree with the majority's decision to affirm the habeas court's ruling that Davis is procedurally barred from pursuing his habeas claim that electrocution is cruel and unusual punishment under the Georgia and United States constitutions. For the reasons that follow, I would vacate that portion of the habeas court's order denying Davis's petition for a writ of habeas corpus insofar as the order concluded that Davis was procedurally barred from pursuing his claim that execution by electrocution is cruel and unusual punishment, and remand the case for further proceedings.
It is in Davis's habeas petition that he raised for the first time the argument that the use of electrocution as the means of execution is cruel and unusual punishment. As the majority notes, the habeas court did not address the merits of Davis's contention because the court concluded that the failure to raise the “evolving standards of decency” argument at trial constituted a waiver under Black v. Hardin, 255 Ga. 239, 336 S.E.2d 754 (1985). I disagree with the imposition of the procedural bar without reference to whether Davis had or could have made a showing that the factual or legal basis of the claim was not available to Davis's counsel on direct appeal. See Turpin v. Todd, 268 Ga. 820, 825, 493 S.E.2d 900 (1997).
The procedural bar to claims that are raised for the first time in a habeas proceeding exists to prevent litigants from reserving meritorious issues on direct appeal in an effort to interpose needless delay to the complete resolution of their cases. See Black v. Hardin, 255 Ga. at 239-240(3) and (4), 336 S.E.2d 754 (holding that an available claim that is not raised on direct appeal is “waived” and that “there then exists a procedural bar to its consideration in habeas corpus proceedings”). Accordingly, Georgia law directs habeas courts to “consider whether [a petitioner has] ... complied with Georgia procedural rules at trial and on appeal” and further provides that “absent a showing of cause for noncompliance with such requirement, and of actual prejudice, habeas corpus relief shall not be granted.” OCGA § 9-14-48(d); see Turpin v. Mobley, 269 Ga. 635, 637(2), 502 S.E.2d 458 (1998).
The required showing of cause necessary to overcome the procedural bar to defaulted claims is not easily made. This Court has recognized ineffective assistance of appellate counsel as one of the few causes that can, in certain circumstances, satisfy the requirement. Turpin v. Todd, supra, 268 Ga. 820(2)(a), 493 S.E.2d 900 (“The procedural bar, however, may be overcome if the petitioner shows, first, an adequate cause for failing to raise the issue earlier and, second, actual prejudice resulting from the alleged error or errors.”). Our reasoning in Todd relied, in part, on persuasive holdings under federal law. Id. at 825, 493 S.E.2d 900. We also noted in Todd another showing of cause recognized under federal law, “a showing that the factual or legal basis for a claim was not reasonably available to counsel.” (Citations and puncuation omitted.) Id. (quoting McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)). I would now hold explicitly that the procedural bar to a claim that was not raised on direct appeal should be set aside upon a showing that the factual or legal basis for the claim was not reasonably available to counsel and that there is actual prejudice to the petitioner's constitutional rights. Indeed, this class of exceptions to the limitation of the review of defaulted claims is nothing more than a necessary, logical extension of the “cause and prejudice test” set forth in Black v. Hardin. Black, 255 Ga. at 240(4), 336 S.E.2d 754 (authorizing consideration of defaulted claims upon a “showing of adequate cause for failure to object or to pursue on appeal and a showing of actual prejudice to the accused.”); see Turpin v. Lipham, 270 Ga. 208, 209-210(2), 510 S.E.2d 32 (1998); Cherry v. Abbott, 258 Ga. 517, 517-518, 371 S.E.2d 852 (1988).
Turning to the question of whether the habeas court correctly rejected Davis's claim as procedurally barred because of Davis's failure to raise it at trial and on direct appeal, I note that at the evidentiary hearing, Davis proffered numerous affidavits in support of his contention that electrocution is cruel and unusual punishment. These affidavits purported to show that executions by electrocution have been plagued by shocking and grotesque errors,FN1 that there is a substantial risk that many if not all executions by electrocution result in the unnecessary infliction of pain and disfigurement,FN2 that societal mores surrounding execution by electrocution have undergone meaningful evolution since Davis's sentence was imposed at trial, and that legislative developments across the nation evidence a national abandonment of electrocution as a means of execution.FN3 Davis's post-hearing brief argued vigorously that electrocution has been steadily abandoned as an acceptable means of execution and that recent scientific inquiries into electrocution FN4 have cast serious doubt on its humaneness.
FN1. See Affidavit of Deborah W. Denno, December 5, 1996, ¶ 18 (outlining “botched” electrocutions, including two, one of which was in Georgia, since Davis's direct appeal).
FN2. Affidavit of Clive A. Stafford Smith, December 5, 1996 (describing a 1996 electrocution in Georgia); Affidavit of Paula B. Hutchinson, December 5, 1996 (describing a 1994 electrocution in Nebraska); Affidavit of Dale A. Baich, December 4, 1996 (describing a 1996 electrocution in Nebraska); Affidavit of John Charles Boger, December 5, 1996 (describing a September 1991 (shortly after Davis's trial) electrocution in Georgia).
FN3. See Affidavit of Deborah W. Denno, December 5, 1996, ¶ 12 (“Altogether, 20 states have switched from electrocution to another method of execution. Moreover, five of these states have switched in the last three years.”); Affidavit of Richard C. Dieter, December 5, 1996 (outlining national legislative abandonment of electrocution, including decrease in use of electrocution from 1991 to date of affidavit); see also La.Rev.Stat.Ann. § 15:569 (abolishing electrocution as of September 15, 1991); 1990 Pa. Laws 145 (abolishing electrocution, codified as 61 Pa.Code § 2121.1 until repealed by 61 Pa.Code § 3004 which also specifies lethal injection as method of execution); Ohio Rev.Code Ann. § 2949.22 (allowing lethal injection as an alternative to electrocution as of July 1, 1996); Va.Code Ann. § 53.1-234 (allowing lethal injection as an alternative to electrocution as of January 1, 1995); Conn.Gen.Stat. § 54-100 (abolishing electrocution as of October 1, 1995); Ind.Code § 35-38-6-1 (abolishing electrocution as of July 1, 1995); N.Y. Correct. Law § 658 (abolishing electrocution for crimes committed on or after September 1, 1995); S.C.Code Ann. § 24-3-540 (allowing lethal injection as an alternative to electrocution as of June 7, 1995); Ky.Rev.Stat.Ann. § 431.220 (abolishing electrocution where sentence is imposed after March 31, 1998, and providing lethal injection as an alternative for death sentences imposed before that date); Tenn.Code Ann. § 40-23-114 (abolishing electrocution for crimes committed on or after January 1, 1999, and providing lethal injection as an alternative for crimes committed before that date); Fla.Stat.Ann. § 922.105 (adopting lethal injection except in cases where electrocution is affirmatively elected, effective January 14, 2000); OCGA § 17-10-38 (providing for execution by lethal injection for crimes committed on or after May 1, 2000); 1999 Ga. Laws 734 (preserving execution by electrocution for persons sentenced to death for crimes committed before May 1, 2000).
FN4. See Affidavit of John G. Webster, Ph.D., December 4, 1996 (describing expert review of apparatus for electrocution in Louisiana and opining that a determination of the degree of pain inflicted by Georgia's apparatus would require similar expert review); Affidavit of Harold Hillman, Ph.D. (opining that electrocution is extremely painful, that a low percentage of electricity applied to the scalp penetrates the skull to reach the brain, and that death from electrocution is slow); Affidavit of Orrin Devinsky, M.D., December 5, 1996 (opining based, in part, on review of an execution in 1995 that “[e]lectrocution can be intensely painful” and that it is impossible to conclude that death is instantaneous); Affidavit of Donald D. Price, Ph.D., December 5, 1996 (outlining his ongoing research and opining that electrocution might induce extreme sensations of pain and “horror” by stimulation of certain portions of the brain).
Davis contended that his proffered evidence of progressively-emerging changes in society's views toward electrocution were indicative of “evolving standards of decency” sufficient to invoke the protections against cruel and unusual punishments embodied in the Eighth and Fourteenth Amendments to the United States Constitution and in Article I, Section I, Paragraph VII of the Georgia Constitution and sufficient to overcome the procedural bar to his claim. Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958); see also Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (“While a national consensus against execution of the mentally retarded may someday emerge reflecting the ‘evolving standards of decency that mark the progress of a maturing society,’ there is insufficient evidence of such a consensus today.”); Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989); Fleming v. Zant, 259 Ga. 687, 689-690(3), 386 S.E.2d 339 (1989) (applying evolving standards of decency to the Georgia Constitution's ban on cruel and unusual punishment). Davis's argument suggests that, at the time of his direct appeal, the factual basis for an effective claim that electrocution was cruel and unusual punishment did not exist, or at least did not exist to the extent that it does now.
A federal district court was recently confronted with a similar situation, and I find that court's resolution of this issue to be persuasive. In McNair v. Haley, 97 F.Supp.2d 1270 (M.D.Ala.2000), a federal district court considered the application of the federal procedural default doctrine to the petitioner's claim that evolving standards of decency barred his execution by electrocution under the federal constitution. The federal magistrate court which first considered the petitioner's federal habeas corpus petition had found that evidence of changing societal mores, of legislative developments, and of recent malfunctioning of the electric chair were merely additional evidence tending to support a previously existing claim and, therefore, that the exception where “the factual or legal basis for a claim was not reasonably available to counsel” did not apply. Id. at 1276. The federal district court disagreed, stating, “T[he] evidence does not simply support an eighth-amendment claim that electrocution offends evolving social standards of decency; instead, it is the very basis for the claim itself.” (Emphasis supplied.) Id. at 1277. The court reiterated its holding by characterizing the evidence of evolving societal standards as “the necessary preconditions for the very claim itself.” Id. The court then concluded as follows: “Because these new facts are the basis for a claim that was not reasonably available during the petitioner's state proceedings, this court finds cause to excuse the procedural default.” Id. at 1277-78. Although this Court applies Georgia procedural law, I believe Davis's situation to be quite similar and the district court's resolution of the question to be persuasive. By its very nature, it is quite possible that Davis's argument that “evolving standards of decency” demonstrate that electrocution is cruel and unusual punishment could not have been raised in the same manner in 1992 when his direct appeal was heard as it could have been raised in December 1996 when his evidentiary hearing was held. The very basis of Davis's claim is that societal standards have changed.
Because the habeas court disposed of Davis's claim that “evolving standards of decency” demonstrate a viable claim of cruel and unusual punishment under the State and federal constitutions without reference to whether Davis had or could have made a showing that “the factual or legal basis for [that] claim was not reasonably available to counsel” on Davis's direct appeal, I would vacate that aspect of the habeas court's order and remand the case for further consideration. On remand, the habeas court should determine whether Davis has made a proffer of evidence unavailable to him during his direct appeal that is sufficient to warrant consideration of his claim that electrocution is cruel and unusual punishment in light of evolving standards of decency. If the habeas court should find that Davis has made a sufficient proffer, the proffered evidence should be admitted, and a resolution of the claim on its merits should be made. In the interest of judicial economy, the habeas court should also consider any supplemental proffer Davis might make purporting to show further evolution of relevant “standards of decency” since the time of his evidentiary hearing.
I am authorized to state that Presiding Justice FLETCHER and Justice SEARS join this dissent.
Davis v. Terry, 465 F.3d 1249 (11th Cir. 2006). (Federal Habeas)
Background: Defendant was convicted of murder, obstruction of law enforcement officer, aggravated assault and possession of firearm during commission of felony. The Supreme Court of Georgia, Hunt, P.J., 263 Ga. 5, 426 S.E.2d 844, affirmed conviction and death sentence. After denial of his state habeas petition was affirmed, 273 Ga. 244, 539 S.E.2d 129, defendant filed federal petition for writ of habeas corpus. The United States District Court for the Southern District of Georgia, No. 01-00290-CV-4, John F. Nangle, J., denied petition. Petitioner appealed.
Holdings: The Court of Appeals held that:
(1) affidavits of other witnesses were insufficient to support Giglio claim;
(2) there was no Brady violation from state's failure to disclose that witness who testified against defendant at trial had contacted district attorney's office regarding possibility of favorable disposition in impending criminal action against her in exchange for her testimony in defendant's case; and
(3) even if trial counsel's performance was deficient, petitioner was not deprived of a fair trial. Affirmed.
Appeal from the United States District Court for the Southern District of Georgia.
Before DUBINA, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Troy Anthony Davis appeals the denial of his petition under 28 U.S.C. § 2254 for a writ of habeas corpus. Davis was convicted and sentenced to death for crimes that occurred in two separate incidents on the same night. First, Davis was convicted of shooting into a car on Cloverdale Drive in a subdivision of Savannah, Georgia. Michael Cooper, who was sitting in the front passenger seat of the car, was severely injured by a bullet that lodged in his right jaw. Davis was also convicted of striking Larry Young in the head with a gun later that night in a Savannah parking lot, and of fatally shooting police officer Mark Allen McPhail as McPhail responded to the altercation.
Davis' convictions and death sentence were affirmed by the Supreme Court of Georgia. Davis v. State, 263 Ga. 5, 426 S.E.2d 844 (1993). His state habeas court petition for relief was denied in 1997, Davis v. Turpin, Civ. Action No. 94-V-162, Order of Sept. 5, 1997 (entered Sept. 9, 1997), and the Supreme Court of Georgia affirmed. Davis v. Turpin, 273 Ga. 244, 539 S.E.2d 129 (2000). Davis then filed his federal habeas petition, whose denial by the district court is the subject of this appeal.
Davis' petition for habeas corpus is based essentially on his claim that newly discovered evidence indicates both that he did not receive a fair trial and that, under the standard set forth in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), he is actually innocent of murdering Officer McPhail. In Schlup, the Supreme Court described two types of claims pertaining to actual innocence that might be made after trial. First, the Court addressed the substantive claim of actual innocence, as asserted in Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), that execution of an innocent person violates the Eighth Amendment even if a conviction was the product of a fair trial.FN1 Second, the Court recognized the procedural claim, asserted by Schlup, that conviction of an innocent person is constitutionally impermissible when the conviction was the product of an unfair trial. The Court held that when a death-sentenced prisoner makes a successful showing of actual innocence, procedural default alone cannot bar consideration of his constitutional claims of an unfair trial.
FN1. The viability of this claim remains an open question as the Court did not reach it, finding that Herrera had failed to make a “truly persuasive demonstration of ‘actual innocence.’ ” Herrera, 506 U.S. at 417, 113 S.Ct. 853.
In this case, Davis does not make a substantive claim of actual innocence. Rather, he argues that his constitutional claims of an unfair trial must be considered, even though they are otherwise procedurally defaulted, because he has made the requisite showing of actual innocence under Schlup.FN2 Specifically, Davis argues that:
FN2. To pass through the Schlup “gateway,” a petitioner's new evidence must “establish sufficient doubt about his guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial.” Schlup, 513 U.S. at 316, 115 S.Ct. 851 (emphasis in original). Establishing sufficient doubt of guilt does not, under Schlup, refer to the strict “clear and convincing” standard of Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), but rather the lesser standard of Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), which only requires a petitioner to “show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup, 513 U.S. at 326-27, 115 S.Ct. 851. The Supreme Court painstakingly explained the terms of the Carrier/ Schlup standard. First, a habeas court cannot reject a petitioner's claim “solely because” there remains “sufficient evidence to support the jury's verdict.” Id. at 331, 115 S.Ct. 851. Instead, the court must “consider what reasonable triers of fact are likely to do.” Id. at 330, 115 S.Ct. 851. The Court described a “reasonable” juror as one who fairly considers all of the evidence presented and conscientiously obeys the instructions of the trial court requiring proof beyond a reasonable doubt. See id. at 331, 115 S.Ct. 851. After articulating the appropriate standard, the Court remanded for an evidentiary hearing to determine “the probative force” and reliability “of the newly presented evidence in connection with the evidence of guilt adduced at trial.” Id. at 332, 115 S.Ct. 851.
(1) The district court erred as a matter of law in declining to address Davis' claim of actual innocence by: (a) refusing to examine all of the evidence of his actual innocence; (b) reaching Davis' constitutional claims before considering the gateway issue of his actual innocence; (c) applying the standards of 28 U.S.C. § 2254(e)(2) to deny Davis an evidentiary hearing on the question of his actual innocence; and (d) failing to recognize that Davis has made a colorable showing of actual innocence.
(2) The State violated Davis' due process and fair trial rights by its knowing use of material false evidence and by withholding material exculpatory evidence.
(3) Trial counsel was constitutionally ineffective for failing to conduct adequate pretrial investigation and for ineffectively representing Davis at trial.
(4) Davis' trial was fraught with procedural and substantive errors, including Confrontation Clause violations, which in combination deprived him of a fundamentally fair trial as guaranteed under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.FN3
FN3. We note at the outset that Davis provides no particular factual support for this claim other than a very brief assertion of a Confrontation Clause violation. Specifically, he challenges a single statement within Officer Lorenzo Brown's testimony regarding a shell casing that linked the murder of Officer McPhail to the Cloverdale shooting. Brown testified that he was given the casing by a homeless man who claimed to have found it “on the lawn of the trust company bank.” On appeal, Davis complains that he did not have the opportunity to confront the homeless man, but he did not raise this argument in his habeas petition. The argument was not considered by the district court and will not be considered here. See Thomas v. Crosby, 371 F.3d 782, 800 (11th Cir.2004) (Tjoflat, J., specially concurring) (“[A]ppellant's failure to press the argument before the district court foreclosed its right to present it on appeal.” (quoting First Ala. Bank of Montgomery, N.A. v. First State Ins. Co., 899 F.2d 1045, 1060 n. 8 (11th Cir.1990) (internal quotation marks omitted))).
DISCUSSION
Certainly, the threshold question in this case is whether Davis is entitled to consideration of his claims of an unfair trial when, as he concedes, those claims are procedurally defaulted for failure to present them to the state court.FN4 Davis recognizes that, notwithstanding the procedural bar, the district court did consider the merits of his constitutional claims and rejected them as a matter of law. He nonetheless argues that the district court erred in declining to consider evidence of his actual innocence and instead reached the merits of his constitutional claims. Davis cannot prevail on this issue. As noted above, the procedural claim of actual innocence under Schlup is permitted in order to assure consideration of constitutional claims of an unfair trial where those claims have been procedurally defaulted. Davis received precisely such substantive consideration. He cannot be heard to complain that the test for achieving a desired result was not applied, or not applied correctly, when the desired result was, in fact, obtained. Accordingly, we now turn to the true gravamen of this appeal: the question of whether the district court erred in concluding that Davis' constitutional claims of an unfair trial, as he asserts them in this case, must be rejected as a matter of law.
FN4. None of Davis' current claims of an unconstitutional trial were raised in the direct appeal of his conviction. Thus, the state habeas court ruled that they were waived and procedurally barred pursuant to Black v. Hardin, 255 Ga. 239, 336 S.E.2d 754, 754-55 (1985). Because a federal habeas court “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment,” Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), this Court is likewise precluded from considering these constitutional claims. A petitioner may surmount this procedural bar in one of two ways. First, the petitioner's defaulted claims can be reviewed if he can show cause excusing the default and prejudice arising therefrom. See Dretke v. Haley, 541 U.S. 386, 392-93, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004). Second, because “[t]he cause and prejudice standard is not a perfect safeguard against fundamental miscarriages of justice[,]” id. at 393, 124 S.Ct. 1847, a petitioner may still obtain review of his constitutional claims, even if he cannot show cause and prejudice, only if his case “implicat[es] a fundamental miscarriage of justice.” Schlup, 513 U.S. at 314-15, 115 S.Ct. 851 (1995) (quoting McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)); Mincey v. Head, 206 F.3d 1106, 1136 (11th Cir.2000). It would be considered a fundamental miscarriage of justice if “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at 327, 115 S.Ct. 851 (quoting Murray, 477 U.S. at 496, 106 S.Ct. 2639) (internal quotation marks omitted).
Davis first argues that his constitutional right to a fair trial was violated because the State knowingly presented false testimony which had been coerced by the police to obtain his conviction. Specifically, Davis argues that the State violated his Fourteenth Amendment right to due process by offering material evidence that state agents knew to be coerced and false in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Davis also argues that the State failed to provide him with exculpatory impeachment evidence of the coercive investigative tactics used to obtain the false testimony in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Additionally, Davis argues that he was denied the effective assistance of counsel guaranteed by the Sixth Amendment, citing trial counsel's failure to investigate possible police coercion of witnesses, to interview critical eyewitnesses prior to trial, and to properly prepare for trial. We address each claim in turn.
I. Giglio Claim
Giglio error, a species of Brady error, occurs when “the undisclosed evidence demonstrates that the prosecution's case included perjured testimony and that the prosecution knew, or should have known, of the perjury.” Ventura v. Att'y Gen., Fla., 419 F.3d 1269, 1276-77 (11th Cir.2005) (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). In order to prevail under Giglio, Davis must establish that: (1) the prosecutor knowingly used perjured testimony or failed to correct what he subsequently learned was false testimony; and (2) such use was material-i.e., that there is “any reasonable likelihood” that the false testimony “could ... have affected the judgment.” Giglio, 405 U.S. at 154, 92 S.Ct. 763; see also Tompkins v. Moore, 193 F.3d 1327, 1339 (11th Cir.1999). Davis fails to meet this standard.
The only Giglio argument actually asserted in Davis' federal habeas petition (as opposed to his appeal brief) is that the prosecution knowingly presented the false testimony of Kevin McQueen and vouched for this allegedly false testimony. But Davis fails to make any specific allegations tending to show that the government knew McQueen's statement to be false. At trial, the State introduced McQueen's sworn statement that, when the two were inmates together, Davis confessed to the killing. In his present affidavit McQueen asserts that he “made up the story about the confession” in order “to get even with” Davis after an argument.
But as the district court correctly stated:
A showing of state misconduct requires, at a minimum, an allegation that the State presented McQueen's testimony while knowing it was false. McQueen's affidavit, accepted as truthful for the sake of argument, shows only that McQueen, on his own and prompted by no one else, sought to take out his anger against Petitioner by lying to a jail warden, by making a false statement to a police officer, and by lying to the court and the jury when he testified that Petitioner confessed to shooting Officer McPhail. McQueen did not present the affidavit recanting his testimony until well after the trial had ended, and no evidence has been presented to indicate that the State knew that his trial testimony was false.
Based on this sole allegation regarding Kevin McQueen, Davis cannot support a Giglio claim as a matter of law.
Although not referenced in his habeas petition, Davis did attach to his petition the affidavits of other witnesses, which he now argues in his brief additionally support his Giglio claim. We have carefully reviewed these affidavits and conclude that, as a matter of law, they are insufficient to support a Giglio claim, either because the assertions contained therein do not rise to the level of coercive police conduct,FN5 or because there is no reasonable likelihood that the false testimony could have affected the jury's judgment.FN6 See United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir.1995).
FN5. For example, the “coercion” alleged in some affidavits goes no further than being “told” by the police to sign a statement. In those affidavits, the affiant claims he did not read the statement at the time he signed it but now claims that its contents were false.
FN6. For example, the allegation that D.D. Collins' interrogation was coercive was raised at trial and obviously did not impact the jury's finding of guilt.
II. Brady Claim
To prevail on his Brady claim, Davis would have to prove that: (1) the government possessed evidence favorable to him; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the government suppressed the favorable evidence; and (4) the evidence was material. LeCroy v. Sec'y, Fla. Dep't of Corr., 421 F.3d 1237, 1268 (11th Cir.2005) (citing United States v. Meros, 866 F.2d 1304, 1308 (11th Cir.1989)). Davis alleges that the State violated Brady by failing to disclose material exculpatory evidence concerning Dorothy Ferrell-namely, that Ferrell, who testified against Davis at trial, had contacted the district attorney's office regarding the possibility of a favorable disposition in an impending criminal action against her in exchange for her testimony in Davis' case. Davis says this omission was material because Ferrell's testimony was important in securing a guilty verdict against him.
At trial, Ferrell, who was staying in a hotel across the street from the murder scene, testified on behalf of the State. She identified Davis as the shooter after her memory was triggered by a picture of Davis on the seat of a police car. She then picked Davis out of a five-person photographic line up and identified Davis at trial.FN7 After Ferrell testified, defense counsel's wife received a phone call from a person purporting to be Dorothy Ferrell saying that someone in the state attorney's office had told Ferrell they would help her if she testified in Davis' case, and that Ferrell's testimony at Davis' trial had been completely false. When defense counsel informed the state attorney of the phone call, the state attorney revealed Ferrell's written request for assistance in a criminal case in which she was a defendant. Her letter stated that if the prosecutor would help, “I promise you, you will not be making a mistake.” Recalled by the judge to explain, Ferrell denied making the phone call. Though she admitted to writing the letter, she denied that the prosecutor helped her. The judge then offered, and defense counsel declined, to recall Ferrell to the stand.
FN7. Ferrell now claims that the police did not present her with a photographic line-up, but simply showed her one photograph of Davis. However, as noted above, it was Ferrell herself who initially and voluntarily identified Davis as the shooter.
Because it is clear that the defense was aware at trial of Ferrell's contact with the state attorney's office, there was no Brady violation. Moreover, this claim was presented to the state habeas court, which found that “there was ‘no suppression of any understanding or agreement for prosecutorial leniency and no grounds for reversal.’ ” Because there was no clear and convincing evidence to the contrary, the district court accepted the state habeas court's finding of fact that there was no suppression of any understanding or agreement. Although the prosecution had an obligation to advise defense counsel of Ferrell's call, the state habeas court found that the omission was not material, citing the defense team's reason for not calling Ferrell back to testify once it found out about the call: “We weren't going to get very far with this witness, simply because we had fairly impeached her on the issue of shoplifting.”
III. Ineffective assistance of counsel
Likewise, Davis cannot establish a successful claim of ineffective assistance of counsel. Davis essentially argues that his counsel was ineffective because:
1. Counsel failed to contact Joseph Blige, who allegedly could have furnished evidence that Davis had no fight with anyone at the Cloverdale party.
2. Counsel failed to ask defense witness Joseph Washington about the shirt that Red Coles was wearing, information that would have been exculpatory in light of other evidence presented to the jury.
3. Counsel failed to interview April Hester, who hosted the Cloverdale party and saw Red Coles acting “nervous and upset” soon after McPhail's shooting.
4. Counsel failed to effectively impeach Larry Young, Harriet Murray, Red Coles, and Stephen Sanders.
A successful claim under Strickland has “two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Davis fails, as a matter of law, to meet this standard. His counsel's alleged instances of misconduct, even if true, do not add up to a performance so deficient that it deprived Davis of a fair trial. A review of the trial transcript reveals that Davis' counsel were fully prepared for trial and presented a viable defense: a case of mistaken identity. Counsel extensively cross-examined the State's witnesses to show that they were not trustworthy and to raise doubt about the witnesses' alleged observations of the shooting. Counsel also presented significant testimony that Red Coles was the person who had committed the murder. Most importantly, none of the testimony which Davis asserts counsel should have obtained would overcome the prejudice requirement of Strickland in light of the totality of the evidence presented at trial.
Having very carefully considered this record, we cannot say that the district court erred in concluding that Davis has not borne his burden to establish a viable claim that his trial was constitutionally unfair. AFFIRMED.
May 31: Judge Head sets Davis’ trial for Aug. 19.
July: Davis’ lawyers request that cameras be banned from the trial.
Aug. 23: Harriette Murray identifies Davis as the shooter and says he smiled as he shot MacPhail.
Aug. 26: Kevin McQueen testifies that Davis admitted the shooting to him.
Aug. 27: Davis takes the stand and denies shooting MacPhail. He says he fled the scene before.
Aug. 28: Closing statements are made. The jury takes about two hours to convict Davis.
Aug. 29: Davis asks the jury to spare his life in the sentencing phase of the trial.
Aug. 30: After seven hours, the jury sentences Davis to death.
Oct. 1: Lawyers file a motion for a new trial.
March 20: Judge Head upholds the conviction, sending further appeals to the Georgia Supreme Court.
Feb. 26: The Georgia Supreme Court upholds the conviction and sentence of Davis.
Nov. 1: The U.S. Supreme Court refuses to hear Davis case without comment.
March 3: Judge Head signs the first order for execution. It ends Davis’ rounds of direct appeals to his conviction. Assistant District Attorney David Lock, who assisted in the prosecution of Davis, states that Davis has another 10 years of “habeas corpus” petitions left before a meaningful execution date.
September: The 11th Circuit Court of Appeals rejects arguments and affirms death sentence.
June 25: The U.S. Supreme Court refuses to review the conviction and sentence.
July 9: Lawyers file an extraordinary motion for a new trial that another man shot and killed MacPhail.
July 10: The Georgia Board of Pardons receives letters from human rights activists and supporters for Davis. Tonya Johnson, a witness in the case, states she saw another man dump the guns after the shooting. She said she didn’t come forward earlier because she fears the man she believed to be the actual shooter.
July 13: Judge Penny Haas Freesemann rejects Davis’ appeal and refuses to stay his execution.
July 16: The Board of Pardons and Paroles suspend Davis’ execution for 90 days. As the month wears on, letters continue to pour in to the board asking for clemency or setting aside the death penalty to life in prison. Meanwhile, challenges to the lethal injection method may further delay any executions.
Aug. 6: A second clemency hearing is suspended as the lawyers seek a new trial.
Nov. 13: The Georgia Supreme Court hears Davis’ request for a new trial.
Sept. 12: The Board of Pardons and Paroles rejects a clemency request.
Sept. 23: An eleventh-hour move by the U.S. Supreme Court grants Davis a stay.
Oct. 11: The U.S. Supreme Court again rejects a request to review the case.
Oct. 12: An Oct. 27 execution date is set.
Oct. 24: The 11th U.S. Circuit Court of Appeals grants a stay.
Dec. 9: The Circuit Court hears Davis’ bid for a new trial.
June: The NAACP appeals to Chatham County District Attorney Larry Chisholm to reopen the case. Various groups urge that the case be reopened. Meanwhile, the U.S. Supreme Court delays ruling on the case until its next term.
Aug. 19: The 20th anniversary of the shooting of MacPhail is marked.
February: State attorneys suggest defense attorneys improperly obtained witness recantations.
June: Evidence that prosecutors earlier were barred from using will be allowed in the latest hearing.
July: Final arguments filed. Judges are also asked to weigh rejected evidence.
August: Judge Moore rejects attempts to reopen evidence not presented in the original trial. Further, the judge says Davis is still guilty. He failed to prove his innocence during the hearing. The next appeal must be to the U.S. Supreme Court.
Sept. 6: A new execution order is signed by Superior Court Judge Penny Haas Freesemann. for between Sept. 21 and 28. The Georgia Department of Correction sets the date for Sept. 21.
Sept. 20: The Board of Pardons and Paroles denies Davis clemency.
Sept. 21: Davis supporters deliver 240,000 signatures to Chatham County District Attorney Larry Chisolm’s door asking him to vacate the order authorizing the execution of Davis. Davis was executed at 11:08 p.m.
Wednesday, September 7, 2011
Born: October 9, 1968
Died: September 21, 2011 (aged 42)
Fom: Butts County, Georgia, United States
Conviction(s): Murder with aggravating factor
Penalty: Death
Status: Executed at Georgia Diagnostic and Classification State Prison