By Bill Rankin, Rhonda Cook
The Atlanta Journal-Constitution
The federal appeals court in Atlanta on Friday halted Troy Anthony Davis’ execution, the third time his life has been spared shortly before he was to be put to death.
Davis’ claims of innocence, based largely on the recantations of prosecution witnesses, have attracted international attention and protest. He was set to be executed by lethal injection Monday evening for the 1989 murder of an off-duty Savannah police officer.
The 11th Circuit’s ruling is the latest in what has been a roller-coaster ride of last-ditch appeals in which Davis, 40, has been repeatedly denied relief only to be spared again and again.
Martina Correia, Davis’ sister, said she and her mother, Virginia Davis, were packing for the trip to death row when they got the news.
“I’ve been praying,” Correia said. “He deserves to be free. He at least doesn’t deserve to die for something he didn’t do.”
Since Davis’ 1991 trial, seven of nine key prosecution witnesses have backed off their testimony. Others have come forward and implicated another man in the killing of 27-year-old Savannah Police Officer Mark Allen MacPhail.
The witnesses’ recantations have prompted leaders across the globe to call for Davis’ death sentence to be commuted. But Chatham County prosecutors say they are certain Davis is a cop killer and deserves to die for the crime.
When the 11th Circuit issued its stay, Davis’ supporters were holding a mock funeral at the state Capitol. Demonstrators carried a coffin and a petition with 140,000 signatures to the state Board of Pardons and Paroles. Davis’ supporters also delivered a letter signed by more than 100 members of Georgia’s clergy to the governor’s office.
Correia talked to Davis after the court issued its stay. “To all the people around the world working hard and fighting for him, he wants to say thank you and this fight has to continue,” she said.
The slain officer’s 75-year-old mother, Anneliese MacPhail, expressed fury and exasperation.
“It’s unbelievable,” she said. “It’s tearing us apart. I’m at the end with my nerves. I can’t sleep, I can’t eat. This is ridiculous.”
Mark Allen MacPhail’s sister, Kathy McQuary, cried when she learned of the stay from a reporter.
Davis’ lawyers expressed hope the stay leads to the new evidence being presented.
“I am extremely relieved that the 11th Circuit, when addressed with such a grave issue as the innocence of a man set for execution, wants to hear argument and make a considered judgment,” said Tom Dunn, a member of Davis’ legal team.
The state attorney general’s office canceled Monday’s execution, spokesman Russ Willard said, adding that state attorneys are exploring their options.
On Wednesday, Davis’ attorneys asked the 11th Circuit for permission to pursue a new federal habeas corpus petition —- in which an inmate claims he is unlawfully incarcerated.
The Antiterrorism and Effective Death Penalty Act of 1996 requires a federal appeals court to approve such a request before a new lawsuit can be filed.
“Upon our thorough review of the record, we conclude that Davis has met the burden for a stay of execution,” the court said in an order issued by Judges Joel Dubina, Rosemary Barkett and Stanley Marcus.
The judges called the stay “conditional” and said they want to hear more from Davis’ lawyers and state attorneys. Davis must clear two difficult legal hurdles to win new appeals.
First, he must show that his lawyers could not have previously found the new evidence supporting his innocence no matter how diligently they looked for it. And he must show that the new testimony, viewed in light of all the evidence, is enough to prove “by clear and convincing evidence that … no reasonable fact finder would have found [him] guilty.”
The 11th Circuit added a twist. It asked the parties to address whether Davis can still be executed if he can establish innocence under the second standard but cannot satisfy his burden under the first, due-diligence question.
The court gave Davis’ lawyers 15 days to file their legal brief and state attorneys another 10 days to respond.
In July 2007, the state Board of Pardons and Paroles issued a stay less than 24 hours before Davis was to be put to death. Last month, the Supreme Court halted Davis’ execution with less than two hours to spare.
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