1a_color_ELECTRIC_CHAIRPoor Troy Davis. In an effort to save his own skin, this convicted murderer has allowed himself to become a pawn in a national debate over a morally loaded subject the outlines of which he can’t even begin to sketch, much less understand: the abolition of the death penalty in the United States.

The tragedy here is that opponents of the death penalty apparently care little for Davis—or anyone else, for that matter. If they did, they wouldn’t be prolonging his individual agony and the collective agony of the family of Savannah police Officer Mark MacPhail, whom Davis gunned down in cold blood almost 20 years ago.

No, Davis is simply a means to an end, a thing to be used in the service of someone else’s vision of a higher ideal. For example, when the U.S. Supreme Court adjourned in June without ruling on Davis’ latest appeal, defense attorney Laura Moye of London-based Amnesty International said, “This buys more time for all of the advocates to get more publicity on the case.”

What? It didn’t mercifully allow Davis to live a little longer? It didn’t allow time to search for truth and justice? It didn’t allow time to move death penalty law a bit forward? No. The adjournment only provided an opportunity to generate publicity, which is what this case has been about from the beginning. (Davis even has his own web page, where viewers can read poems and listen to a song written about him.)

We don’t need a web page or a song to know that PR is front and center in this particular case. The groundless legal appeals and staged media events on behalf of Davis fit a pattern utilized again and again by ideological opponents of the death penalty.

First, they pick an old case, one where memories have dimmed and the physical evidence has been degraded or lost. Second, they gather material and lie in wait, then, just before a long-scheduled execution, they spring into action claiming “recantations” and “new evidence.” Third, a PR campaign is cranked up to put pressure on prosecutors, courts and, in this case, the Georgia Board of Pardons and Paroles. These steps are invariably followed by demands for hearings and a new trial, no matter how flimsy the legal arguments.

This is exactly what has happened here.

Former President Jimmy Carter, Bishop Desmond Tutu and Pope Benedict XVI have all chimed in on the side of Davis. Some 27 former federal jurists and prosecutors have filed a brief on his behalf. A huge petition bearing 70,000 signatures from around the world has been handed to the Chatham County district attorney, urging him to re-open the case. If publicity was all that mattered, Troy Anthony Davis would be back prowling the streets of Savannah tonight.

But overlooked in all the hooplah is a troubling reality for death penalty opponents: a jury is the trier of fact, not the media. Add to that the fact that not one of the people begging to spare Davis’ life sat in the jury box and heard all the evidence against him, and it becomes obvious that the abolitionists are facing daunting odds.

For readers who may be unfamiliar with the Davis case, a recap may be in order. On a hot August night in Savannah, Georgia in 1989, Troy Davis shot a man named Michael Cooper at a pool party. In the wee hours of the next morning—August 19—an intoxicated homeless man wandered out of a store and onto the parking lot of a Burger King restaurant, where Davis and his buddies were loitering following the earlier shooting. The group verbally assaulted the homeless man, followed him, then pistol-whipped their helpless victim.

Officer MacPhail, 27, a former U.S. Army Ranger and father of two, was working a second job as a security guard nearby. When he heard the commotion, MacPhail ran past a man named Sylvester Coles (this is important) to get to the scene of the beating. Once he got there, witnesses told police and testified under oath in open court that Davis hit MacPhail in the head with a pistol then shot him multiple times as he lay sprawled on the asphalt. (MacPhail never drew his gun.)

Both Davis and Coles ran from the parking lot only to return while Savannah police officers and homicide detectives were still processing the murder scene. When they met up, Davis begged Coles for a fresh shirt. Why? Was it to get rid of blood spatter evidence or to change his appearance?

No one knows, but we do know this: a few hours later, Coles showed up at the Savannah police department with his lawyer and voluntarily gave officers a statement implicating Davis in MacPhail’s murder. His lawyer waited outside the interrogation room. This too is important. Not even a first year law student would allow a client to speak alone with officers if the client had been involved in criminal activity.

Meanwhile, Davis fled to Atlanta with his sister.

To make a long story short, based partly on the testimony of nine witnesses, two years after the killing, Davis was convicted and sentenced to death by lethal injection, touching off Georgia’s automatic appeals process, a molasses-slow mechanism that can last a decade or more.

One of the most often used arguments against the death penalty is that it falls disproportionately on minorities, especially on blacks who kill whites. Although Davis is black and MacPhail was white, death penalty opponents have been silenced in this instance.

Three blacks were dropped from the jury pool during voir dire. Two said they could not apply the death penalty, and the third had a disqualifying relationship with Davis’ family. However, the jury that convicted Davis and then sentenced him to death was composed of five whites and seven blacks, a higher percentage of blacks than in Chatham County, Georgia as a whole.

Unable to play the race card, opponents instead argued that there is no physical evidence linking Davis to the murder, but this is not so. The state crime lab found that a shell casing found at the murder scene matched those found at the scene of the earlier shooting of Michael Cooper at the pool party. Davis was convicted of shooting Cooper, and no defense lawyer has been able to get that pistol out of Davis’ hand between the time Cooper was shot and MacPhail was murdered.

In the decade after Davis’ conviction, state courts heard these arguments—and more—and were unimpressed with any of them. But as the automatic appeals process was winding down, death penalty opponents began collecting affidavits from the people who had testified against Davis back in 1991. They had some of the statements in hand as early as 2003, a good 12 years after the trial and four years before his first scheduled execution.

Many of the witnesses said they had been pressured by the police to make their original statements and to testify in court. No one can know what they felt, but it could have been nothing more than the fact that police officers are trained to get witness statements recorded and on paper as soon as possible, when memories are fresh and pressure from the community to not cooperate with authorities has not had time to build.

Davis’ lawyers would eventually get seven of the nine witnesses against him to swear they were no longer sure of their original testimony or that they had lied, a recantation rate so spectacular as to be beyond belief. Yet, not one of the seven who “recanted” swears now that Davis is not the killer. What most said, some of them 16 years after the murder, is that they were no longer sure of their earlier testimony.

That’s why no court has given the later statements much weight. In one combination or another, more than 30 judges in eight different courts have studied the affidavits and not one has seen fit to overturn the jury’s verdict.

Although lawyers representing Davis had many of the affidavits in hand as far back as 2003, they waited until eight days before Davis was scheduled to die on July 17, 2007 to dramatically drop them on the Georgia Board of Pardons and Paroles, which stopped the execution with 24 hours to spare. Over the next year, the board compared the new statements with the original trial testimony, studied the physical evidence, heard witnesses called by Davis’ lawyers—including Davis himself—and refused to commute the sentence. Since then, Davis has twice escaped death when courts issued last-minute stays.

In the midst of this long-running tragedy, a farce is being acted out. Lawyers for Davis now say that Coles is the real killer, despite the fact that witnesses testified that MacPhail ran past Coles to get to where Davis and his pals were pistol-whipping the homeless man. This is a wildly irresponsible accusation. Not only did Coles have no motive to shoot MacPhail that fateful night, he cooperated with police during the investigation.
(Just for fun—although there is nothing funny about it—let’s take this assertion forward. Suppose Amnesty International’s Death Penalty Abolition Campaign and its allies succeed in springing Davis. Then suppose Chatham County District Attorney Larry Chisolm successfully prosecutes Coles for MacPhail’s murder and gets him sentenced to death. Do Davis’ lawyers celebrate their victory and walk away, or do they turn around and defend Coles? And on what grounds? That the “evidence” they ginned up against him is phony? Untangle that ethical web!)

This is not to argue the guilt or innocence of Troy Anthony Davis. A jury of his peers determined that he is guilty of killing Officer Mark MacPhail and decided that he should die for the crime, as Georgia law provides. Courts both federal and state, along with the parole board, have rummaged around in the evidence against Davis for almost 20 years, and not one venue has found that the jury misinterpreted a shred of it.

It is to argue, instead, that opponents of the death penalty do irreparable damage to their cause and bring into question their own integrity when they select a predator like Troy Davis as their poster boy and whip up a public relations campaign designed to shame the general public into emotionally hugging him like some cuddly little teddy bear. And Davis does himself no favors when on his web site he takes no responsibility for his own actions but blames his predicament on “the blatant racism and bias in the U.S. Court System.” Calling every jurist from Chatham County to the U. S. Supreme Court a biased racist is a non-starter, to say the least.

A nationwide Gallup poll of 1,015 Americans conducted in May disclosed that 92 percent find it morally permissible to condemn criminals to death. It appears counter-intuitive, but it is against this tide of public opinion that any movement to abolish the penalty has to begin. The only argument against the death penalty that will ever be successful is the moral one: taking the life of a human being is wrong.

It doesn’t matter if the culprit is Troy Davis or the State of Georgia.

Editor’s note: Debate about the Troy Davis case has been widespread, not only in Georgia and the South, but around the world. Two different views on the case previously appeared on likethedew.com. In this instance, as with the earlier stories, the views expressed are those of the writer and are not necessarily shared by other writers or readers of likethedew. We encourage respectful debate and comments on this serious topic.

Rethinking the Death Penalty: https://likethedew.com/2009/06/25/rethinking-the-death-penalty/

Witnesses Recant; Troy Davis Still on Death Row: https://likethedew.com/2009/05/21/witnesses-recant-but-troy-davis-still-on-death-row/

Cliff Green

Cliff Green

Cliff Green is a former writer for The Atlanta Journal. He worked there when it was a real newspaper. His accomplishments since include the fact that he has never watched a minute of reality TV, and he has never been inside a Starbuck's. He owns no device onto which he can download music, nor does he know how to record a television show. He is not sure what an iPhone is. He is proud of all the above.

  1. Great article Cliff, it is about time people know the facts and stopping listening to all the PR propaganda!

  2. Billy Howard

    People with good hearts and honest opinions differ on Troy Davis’ innocence and your detailed analysis of the case should be read by anyone who has not taken the time to understand the crime and the evidence. I was one of those people. In a previous story posted in the Dew by Desiree Evans, the defense of Davis was raised and I think both stories should be read for a complete picture of this issue. Regardless of guilt or innocence, your sentence ending with “taking the life of a human being is wrong” rings like a bell, whether the life is taken by a criminal or by the state.

  3. But the Davis case is about PR because it’s about overturning the death penalty, and not about Davis in particular but Davis as an example (I agree that a better example might have been selected).

    No matter what percentage of Americans agree with death as a punishment, the morality of it was settled in the Ten Commandments — Thou Shalt Not Kill (murder) — and without question, most Americans believe that the Ten Commandments are a covenant with God. Isn’t it hypocritical that a large majority of those people agree with the death penalty? In one example, someone might frequently state that “all life is precious,” but then sign lots and lots of death warrants. Ah, but I digress.

    Even if you throw out the valid argument of the death penalty being used disproportionately against black Americans, you’re still left with the real problem — it’s permanent. And no matter what evidence is presented to jurors who may be certain beyond a reasonable doubt to convict based on the presented evidence, they can’t be 100% certain that the presented evidence wasn’t mishandled or that important evidence wasn’t withheld by the judge during pretrial motions because of a technicality, and if you aren’t 100% sure about the presentation, then it is truly a sin to impose such a permanent punishment on the defendant. Then, too, there are too many times when defendants don’t get to appeal because the lawyer missed a deadline or because courts won’t permit an examination of the DNA evidence, just to name two problems.

    There are too many times when death row inmates have been later proven not only not guilty of the crime, but actually innocent. The problem with the death penalty is that even if we all know for an absolute fact that “this” person did the crime, the punishment would then have to be available, therefore potentially applied, to someone who might NOT have done the crime. We’re human, we’re fallible, we might convict the wrong person. Unacceptable to kill them.

    Lots of good discussion points in this piece. I wish we could edit our presented comments. I know I’m going to see it later and wish for the opportunity to fine tune my thoughts. But here they are anyway.

  4. Good job, Cliff. Another murderous thug becomes urban legend/hero, with the convenience of short and ideologically clouded memories paving the way. The real question remains unaffected by anecdote.

  5. I hate the fact that Mark MacPhail suffered a tragic death. I also think Cliff has raised lots of good points and organized the arguments extremely well about a case that has become a cause celebre. (The question he raises about Sylvester Coles is especially interesting and should be carefully considered by many people who have spoken out on this case.) Cliff and I differ on the merits of Troy Davis’ appeal mainly because I think — unlike the courts that have reviewed the case — that recanted testimony is significant. Yes, Davis was convicted but would he be convicted without that testimony? Maybe. We won’t ever know (although if I were an advocate of the death penalty I would at least say that enough questions have been raised that life without parole is the better alternative). But I don’t want to belabor details of this case because Cliff has raised a more important issue: “The only argument against the death penalty that will ever be successful is the moral one: taking the life of a human being is wrong. It doesn’t matter if the culprit is Troy Davis or the State of Georgia.” The issue actually goes further than that. Is it OK to take the life of other people in warfare? Is it OK to kill in self-defense? Is it OK to kill someone who is locked away in a prison and not a threat to society? Different ethical arguments could be brought to bear on these questions. To me, the answer on the death penalty is the easiest. We don’t need capital punishment. We would be a better society without it.

  6. Ms. Gerrish:


    First, innocents are less at risk with the death penalty.

    “The Death Penalty: More Protection for Innocents”

    Secondly, the commandment is “Thou shalt not murder”. That is one of the reasons that many of the greatest, Saints, scholars, Popes and theologians have found substantial biblical support for the death penalty.

    Death Penalty Support: Modern Catholic Scholars

  7. Mr. Sharp — I used to be pro-death penalty. So in answer to your request that I “reconsider,” I respectfully respond — I did. That’s why I’m anti-death penalty. — Regards.

  8. Meg:

    My “reconsider” had nothing to do with you supporting or opposing the death penalty.

    It had to do with your error of “thou shalt not kill”.

    and the fact that innocents are more at risk without the death penalty.

    The “reconsider” had to do with those two positions. I thought that was very clear.

    I switched positions on the death penalty, as well.

  9. Billy Howard

    The evidence that the death penalty is a deterrent, which seems to be a central part of your argument, is sketchy at best, and without conclusive proof, the possibility of executing an innocent person overwhelmingly negates any positive impact on society of the death penalty. In fact, the probability of killing an innocent person and knowing that probability exists, makes us all culpable for that execution. I do appreciate your opinion, Mr. Sharp and know that like those of us who oppose the death penalty, you have arrived at your conclusions through your honest appraisal of the issue. We too have made our own appraisal and come to an opposite conclusion and the resulting conversation, I hope, has been instructive to both sides. At the end of the day, I feel an even stronger conviction for my view and I suspect you have had no change in your opinion. Perhaps some people whose opinions lay in the middle ground have been swayed through this debate to one side or the other and that is the beauty of the debate. Of course, I hope our arguments have been more persuasive, and I am sure you hope the same for yours.

    1. A very belated reply.

      Of course the death penalty deters. A review of the debate.
      Dudley Sharp

      1) Anti death penalty folks say that the burden of proof is on those who say that the death penalty deters. Untrue. It is a rational truism that all potential negative outcomes deter some – there is no exception. It is the burden of death penalty opponents to prove that the death penalty, the most severe of criminal sanctions, is the only prospect of a negative outcome that deters none. They cannot.

      2) There have been 27 recent studies finding for death penalty deterrence (See B. 1. Below). A few of those have been criticized. The criticism has, itself been rebutted and/or the criticism doesn’t negate no. 1 or nos. 3-10, herein.

      3) No deterrence study finds that the death penalty deters none. They cannot.

      4) About 99% of those murderers who are subject to the death penalty do everything they can to receive a lesser sentence, in pre trial, plea bargains, trial, in appeals and in clemency/commutation proceedings. Life is preferred over death. Death is feared more than life. No surprise. Would a more rational group, those who choose not to murder, also share in that overwhelming fear of death and be deterred by the prospects of execution? Of course.

      5) There are a number of known cases of individual deterrence, those potential murderers who have stated that they were prevented from committing murder because of their fear of the death penalty. Individual deterrence exists. (See B. 4. below)

      6) General deterrence exists because individual deterrence cannot exist without it.

      7) Even the dean of anti death penalty academics, Hugo Adam Bedau, agrees that the death penalty deters .. . but he doesn’t believe it deters more than a life sentence. Nos. 4-6 and 10 provide anecdotal and rational evidence that the death penalty is a greater deterrent than a life sentence. In addition, the 27 studies finding for deterrence, find that the death penalty is an enhanced deterrent over a life sentence.

      8) All criminal sanctions deter. If you doubt that, what do you think would happen if we ended all criminal sanctions? No rational person has any doubt. Some would have us, irrationally, believe that the most severe sanction, execution, is the only sanction which doesn’t deter.

      9) If we execute and there is no deterrence, we have justly punished a murderer and have prevented that murderer from ever harming/murdering, again. If we execute and there is deterrence, we have those benefits, plus we have spared more innocent lives. If we don’t execute and there is deterrence, we have spared murderers at the cost of more innocent deaths.

      10) Overwhelmingly, people prefer life over death and fear death more than life.

      “If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call.”

      John McAdams – Marquette University/Department of Political Science


      Of course the death penalty deters.

      All prospects of a negative outcome deter some. It is a truism. The death penalty, the most severe of criminal sanctions, is the least likely of all criminal sanctions to violate that truism.

      1) 27 recent studies finding for deterrence, Criminal Justice Legal Foundation

      2) “Deterrence & the Death Penalty: A Reply to Radelet and Lacock”

      3) “Death Penalty, Deterrence & Murder Rates: Let’s be clear”

      4) This is out of date, but corrects a number of the misconceptions about deterrence.

      “Death Penalty and Deterrence”

      5) “The Death Penalty: More Protection for Innocents”

  10. Please let me thank you for this opportunity to discuss the Troy Davis case, and to respond to some important points raised by the article and comments. I should say at the beginning that the murder of a peace officer such as Officer Mark MacPhail is indeed one of the most serious crimes against civil society that can be committed, and deserves the maximum punishment possible under a
    correct reading of our Constitution: life imprisonment without possibility of parole.

    However, Davis has been sentenced to death. Apart from the religious, constitutional, and humanitarian considerations which would make me oppose this punishment in any case, there is the consideration, not that Davis is necessarily innocent, but that enough doubt has been raised to make the case “unsafe for execution,” as has in fact been recognized by some of the reasonable jurists who have heard the state and federal appeals, including Chief Justice Leah Sears of the
    Georgia Supreme Court and two of her colleagues. Their eloquent 2008 dissent in a 4-3 decision deying Davis an evidentiary hearing which might have led to a new trial is well worth reading, as is the equally powerful dissent of Judge Rosemary Barkett of the U.S. Court of Appeals for the Eleventh Circuit finding that Davis’s execution would be “unconscionable and unconstitutional.”

    Before addressing what I see as the main legal issue in what I hope will be a readable and nontechnical fashion, I would urge that the
    remarks about the Supreme Court’s pause in deciding whether to hear the case as “buying time” for publicity be read in context. Publicity and public response can indeed be relevant elements in persuading the Georgia Board of Pardons and Paroles to reconsider its denial of clemency.

    And commuting Davis’s sentence to life without parole, not gaining his release, is what I, at least am after at this point. The issue is not whether he is in fact innocent, but whether the weaknesses in the physical evidence plus the large number of witness recantations raise enough doubt to exclude the irrevocable punishment of execution. In England before it abolished the death penalty for murder in 1965, and for extraordinary offenses such as treason by 1998, a mere “scintilla of doubt” was considered sufficient grounds for a reprieve (i.e. commutation) to life imprisonment by the Home Office, as reported by the Royal Commission on Capital Punishment (1953). Yet even with this standard, they sometimes got it wrong, as in the case of Timothy Evans, hanged in 1950 for murders which someone else very likely committed, so that he later received a posthumous pardon from Queen Elizabeth II. In the Troy Davis case, those yellow lights of caution are flashing, as Chief Justice Sears and federal Circuit Judge Barkett have shown.

    Does this mean that Davis should be freed? No, although I wouldn’t rule out his exoneration at some future time. The standard for “actual innocence” which might justify releasing someone duly convicted by a jury is rightfully quite exacting. This is because, apart from society’s concern that people convicted by their peers of murder should in fact be punished, there’s the obvious risk of having someone at large who has been convicted beyond a reasonable doubt of killing a police officer. Thus a typical standard is that no reasonable juror could find the defendant guilty beyond a reasonable doubt: if reasonable people can differ on the facts, even though an appellate court might if sitting as a jury vote “Not Guilty,” then the conviction stands. A real consideration is that after many years, the state may find it difficult at best to reassemble its valid evidence for conviction, even where that evidence as originally presented was flawless and overwhelming, so that reversing a conviction can be tantamount to releasing the prisoner.

    In contrast, reducing or commuting a death sentence to life without parole (LWOP) because there is substantial doubt as to guilt — the Royal Commission’s “scintilla of doubt” — leaves the prisoner safely behind bars and society protected. (For a few prisoners, evidently not including Davis, who present a serious continuing danger, there are “SuperMax” units to protect staff and other prisoners as well as the public at large.)

    Let’s suppose that someone concluded that there’s a 95% chance that Davis is guilty as charged. Commuting his sentence avoids a 1-in-20 risk of killing an innocent person, but protects society and exacts the highest validly constitutional measure of punishment. Actually, I think the probability of his innocence could be much more than 5%, but I intentionally view things favorably to the jury’s verdict in order to emphasize my point.

    There’s much more to be said on all sides about the death penalty in general, but I would emphasize that Davis’s case does present real doubts about guilt that have prompted dissents from some thoughtful and eloquent jurists. Also, the fact that the U.S. Supreme Court would want to wait through the summer before deciding whether to hear Davis’s petition for original habeas corpus, a rare legal move, may indicate that the facts are indeed worthy of consideration.

  11. If there is a 95% surety of guilt, that doesn’t mean one out of twenty are innocents executed.
    A 95% surety of guilt in all death penalty cases, may well mean that all of those individual cases convicted the actually guilty and that no innocents were executed.

    Troy Davis: Both sides need to be told
    Dudley Sharp, contact info below

    Anyone interested in justice will demand a fair, thorough look at both sides of this or any case. Here is the side that the pro Troy Davis faction is, intentionally, not presenting.

    (1) Davis v Georgia, Georgia Supreme Court, 3/17/08
    Full ruling http://www.gasupreme.us/pdf/s07a1758.pdf
    Summary http://www.gasupreme.us/op_summaries/mar_17.pdf

    ” . . . the majority finds that ‘most of the witnesses to the crime who have allegedly recanted have merely stated that they now do not feel able to identify the shooter.’ “One of the affidavits ‘might actually be read so as to confirm trial testimony that Davis was the shooter.’ ”

    The murder occurred in 1989.

    (2) “THE PAROLE BOARD’S CONSIDERATION OF THE TROY ANTHONY DAVIS CASE” , 9/22/08, http://www.pap.state.ga.us/opencms/opencms/

    “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.”

    “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 all witnesses. The Board has also had certain physical evidence retested and Davis interviewed.”

    (3) A detailed review of the extraordinary consideration that Davis was given for all of his claims,
    by Chatham County District Attorney Spencer Lawton http://tinyurl.com/46c73l

    Troy Davis’ claims are undermined, revealing the dishonesty of the Davis advocates . Look, particularly, at pages 4-7, which show the reasoned, thoughtful and generous reviews of Davis’ claims, as well a how despicable the one sided cynical pro Troy Davis effort is.

    (4) Officer Mark Allen MacPhail: The family of murdered Officer MacPhail fully believes that Troy Davis murdered their loved one and that the evidence is supportive of that opinion. http://www.markallenmacphail.com/

    Not simply an emotional and understandable plea for justice, but a detailed factual review of the case.

    (5) “Death and Dying”, by Cliff Green, LIKE THE DEW, 7/22/09,

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