[Opinion] – The mercy of the Court

In the early morning hours of Aug. 19, 1989, Mark McPhail, an off-duty police officer working as a security guard for a Greyhound bus station in Savannah, Ga., came to the rescue of a homeless man being pistol-whipped by three young men in the parking lot of a local Burger King. According to an arrest report, when Officer David Williams responded to the call of âÄúan officer down,âÄù he found McPhail lying on his face in the parking lot with his mouth full of blood, with bits of his own teeth scattered around him on the sidewalk. An autopsy revealed that McPhail had been shot twice. One bullet entered through his cheek and exited through his neck. A second bullet entered through the left armhole of his bulletproof vest, piercing his lung and aorta before lodging in the back of his chest cavity. Williams testified that McPhail never drew his gun from its holster. Officer McPhail was 27 years old. He left behind a wife, a 3-year-old daughter and a 7-week-old son. Exactly two years later, on August 19, 1991, Troy Anthony Davis stood trial for, among other things, the murder of McPhail. The trial lasted 11 days, and the Chatham County Superior Court jury found Davis guilty and sentenced him to death. A long appellate process followed for the convicted cop killer. The Georgia Supreme Court affirmed the trial courtâÄôs hearing in 1993. That same year the U.S. Supreme Court denied DavisâÄôs petition for certiorari. In 1994 his petition to the court for rehearing was denied. Davis filed a federal habeas corpus motion in district court, alleging that he had newly discovered evidence which he said indicated he did not receive a fair trial and that he was innocent of murdering McPhail. His petition was denied both by the district court and the 11th Circuit Court of Appeals in 2006. In 2007, the U.S. Supreme Court again declined to hear his case. In March of this year, the Georgia Supreme Court denied DavisâÄôs final motion for a new trial, and on Monday denied his final request for a stay of execution. His death sentence was to be carried out Tuesday at 7 p.m. A final plea to the U.S. Supreme Court was his only chance. Less than two hours before Davis was to die by lethal injection, the high court granted his stay of execution. DavisâÄôs goal through the perpetual appellate process was, according to his petition, to introduce new evidence to suggest that Sylvester Coles, his companion the morning of Aug. 19, 1989 was McPhailâÄôs killer, and that Davis himself was not guilty of the murder. Georgia law allows for a new trial in situations where âÄúany material evidence âĦ relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court âĦ âÄú Davis was convicted without the production of a murder weapon or any physical evidence. The evidence against him came from witness testimony. Coles himself was the one who identified Davis to the Savannah police, a âÄúself-interested revelationâÄù after which the police apparently never questioned Coles, says Davis. Davis further claims to be able to provide new witnesses willing to testify that Coles has bragged of committing the murder and getting away without punishment. In addition, seven of the nine witnesses who testified against Davis have recanted their testimony, some of whom are alleging police coercion. The role of the police, naturally, considering the nature of the crime, had been an issue previously in this case. It was determined that 20 armed police officers conducted an illegal search of the home of DavisâÄôs mother in the process of the initial investigation. In an affidavit taken from the Amnesty International website, one of the witnesses, Darrell Collins, said of the police, âÄúThey asked me to describe the shooter and what he looked like and what he was wearing. I kept telling them that I didnâÄôt know. It was dark, my windows were tinted, and I was scared. It all happened so fast. Even today, I know that I could not honestly identify with any certainty who shot the officer that night. I couldnâÄôt then either. After the officers talked to me, they gave me a statement and told me to sign it. I signed it. I did not read it because I cannot read.âÄù The courts have so far refused to admit this evidence, because doing so would require granting Davis a new trial, something for which they say Davis has not met the standard of proof. Some disagree: âÄúIf recantation testimony âĦ shows convincingly that prior trial testimony was false, it simply defies all logic and morality to hold that it must be disregarded categorically,âÄù wrote Georgia Supreme Court Chief Justice Leah Ward Sears, the lone dissenter in DavisâÄôs final appeal. The U.S. Supreme CourtâÄôs latest decision does not guarantee that the new information about Davis will be heard. It essentially means that the court will meet to discuss whether it will hear DavisâÄôs case, possibly at its next conference, scheduled for Monday. If they choose not to take DavisâÄôs case, the stay will be terminated, and DavisâÄôs appeals will presumably be exhausted. The victimâÄôs family, on-hand for the execution, said they were furious about the stay of execution, according to an article in WednesdayâÄôs Atlanta Journal Constitution. âÄúIt should have happened today,âÄù said Annelie Reaves, McPhailâÄôs sister. âÄúHe knows who the killer is.âÄù âÄúI am angry as can be. IâÄôm disgusted. It should have been over by now,âÄù MacPhailâÄôs mother, Anneliese MacPhail, said in a story posted on CNNâÄôs website Tuesday night. âÄúNobody thinks about what the victimâÄôs family has gone through again and again. I was hoping it would be over today.âÄù The unnecessary death of McPhail is undeniably, horrifically, tragic. Davis may have been the man who pulled the trigger that morning almost 20 years ago, and if he did, maybe he deserves to die. But if Davis is innocent, which will likely never be known for certain, and if he is executed by a justice system that categorically refuses to allow evidence which may exonerate him âĦ well, thatâÄôs a tragedy too. Jake Parsley welcomes comments at [email protected]