Clemency fight battles time limit

The Baltimore Sun

ATLANTA -- It was a Friday night in a rough part of town when Officer Mark A. MacPhail of the Savannah Police Department showed up to work his second job, moonlighting as a security officer for the Greyhound bus station.

A few hours later, early on a Saturday morning in August 1989, MacPhail was shot and killed as he tried to break up a fight over a can of beer. He never drew his weapon.

The man convicted of shooting the officer that night in 1989, Troy A. Davis, is likely to be the focus of an unusual clemency hearing before the Georgia Board of Pardons and Paroles. Tomorrow, the board is to hear the case of Davis, 38, who was sentenced to death in 1991 for the killing.

Though prosecutors have considered the case solved for nearly two decades, a chorus of eyewitnesses says the police arrested the wrong man. Now, on the eve of execution, scheduled for Tuesday, they have joined an effort to get the courts to hear new evidence they say proves he is innocent.

With no physical evidence - the murder weapon was never found - prosecutors relied heavily on the testimony of nine eyewitnesses against Davis.

But since his trial, seven of the nine have recanted or changed their testimony, saying they were pressured by investigators to lie under oath. Other witnesses have identified a different man as the shooter.

But because of a 1996 federal law intended to streamline the legal process in death penalty cases, courts have ruled it is too late in the appeals process, refusing to hear new evidence.

Legal experts, including William S. Sessions, a retired federal judge, a former director of the FBI and a self-described supporter of the death penalty, have sounded the alarm over Davis' case. They say it underscores the many ways the death penalty is unevenly and wrongly applied, particularly in the South, the region with the most death penalty cases.

"It would be intolerable to execute an innocent man," Sessions wrote in an op-ed article for The Atlanta Journal-Constitution. "It would be equally intolerable to execute a man without his claims of innocence ever being considered by the courts or by the executive."

Rep. John Lewis, a Georgia Democrat, is expected to testify at the clemency hearing.

In addition to the hearing, lawyers for Davis asked for a new trial, but on Friday, Judge Penny Haas Freesemann of Chatham County Superior Court in Savannah denied the bid. Davis' lawyers told the Associated Press that they would appeal to the state Supreme Court.

Georgia does not guarantee defense counsel for condemned prisoners after they have exhausted their direct appeals.

"Our father worked as a sheriff's deputy in Savannah," said Davis' older sister, Martina N. Correia, 40.

"When they finally got people to tell the truth, they said it was too late to introduce it," she said. "Some of these people, I don't know how they sleep."

On June 10, Correia and her mother led representatives from Amnesty International to the offices of the Georgia Board of Pardons and Paroles and delivered thousands of letters written in support of Davis, asking for clemency.

It is rare for the board to commute a death sentence, but not unprecedented. Since 1973, the board has granted 50 clemency hearings and commuted eight sentences.

"But we believe the truth can prevail," said Jason Ewart, a lawyer from Washington who is representing Davis.

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