What is most puzzling to Virginia Davis is that nearly all of the witnesses who helped send her son to death row are now the people who might clear his name. But Georgia's legal system is unwilling to hear what they have to say.
At Troy Davis' 1991 trial, no physical evidence tied him to the murder of Savannah police officer Mark MacPhail, a young father of two who was shot three times while trying to break up a fight. Instead, nine witnesses ensured a conviction by testifying that Davis shot MacPhail.
Since then, seven of the nine witnesses have recanted their testimony. At least four have stated that they were pressured by investigators to identify Davis. Three other people have come forward to say that another man confessed to the killing. That man, Sylvester "Redd" Coles, admitted he was at the scene of the crime and was the first person to tell police that Davis was the shooter. He later testified against Davis and is one of the two witnesses who didn't recant.
Despite the new evidence, however, Georgia's courts – including the state Supreme Court – have ruled against hearing the witnesses' recantations.
"They believed these people before," Virginia Davis said, standing under a brilliant blue sky in the shadow of the state Capitol at a rally May 17 organized by Amnesty International. "Why not believe them now?"
Roughly 80 protesters congregated on the steps of the Capitol to draw awareness to a cause that has attracted the support of state legislators and congressmen, Amnesty International, and Pope Benedict XVI. Davis, who was granted a temporary stay of execution last July – less than 24 hours before he was to be put to death – is likely to receive another execution date this fall.
"What we've been yelling and screaming for the last eight years now is a hearing," says Washington D.C.-based attorney Jason Ewart, who's representing Davis pro bono. "All we want is a judge to hear our witnesses and decide whether they're credible or not."
Chatham County District Attorney Spencer Lawton, who's been in office since before Davis' trial, has stood by the jury's verdict. In court filings and hearings, he's reiterated that the right man was convicted.
Davis' sister Martina Correia wonders why the initial verdict is so sacred – especially considering that four of the jurors have signed sworn statements that say they wouldn't have sentenced Davis to death if the evidence available today had been presented at his trial.
Five years passed before witnesses began to come forward and renounce their testimony. Prior to that, Davis didn't have access to the kind of representation that could track down and grill those witnesses, according to Laura Moye, deputy director of the southern regional office of Amnesty International.
Moye says that the Georgia Resource Center, which handles the appeals of most of the 100-plus people on Georgia's death row, has suffered over the past dozen years from budget cuts that slashed its staff from eight lawyers to two. And in the early '90s, Davis had depended on GRC attorneys for representation.
It wasn't until 1996 that the first witness recanted, and it took seven years for lawyers to obtain statements from six other trial witnesses. But Davis' case then hit another hurdle. Due to a 1996 federal law that shortened the appeals process for death row inmates, the new evidence was considered by the state's lower courts to be too little, too late.
By the time Davis' execution was set for July 2007, the Georgia Supreme Court offered one last chance to hear the evidence. But when the justices issued their opinion two months ago, they voted 4-3 against Davis.
Justice Harold Melton, writing for the majority, stated, "We favor that original testimony over the new. ... We simply cannot disregard the jury's verdict in this case."
Chief Justice Leah Sears expressed disappointment in the court's decision. In a minority opinion, she wrote: "This Court's approach ... is overly rigid and fails to allow an adequate inquiry into the fundamental question, which is whether or not an innocent person might have been convicted or even, as in this case, might be put to death."
Stephen Bright, president of the Atlanta-based Southern Center for Human Rights, points out that the Supreme Court's ruling follows the law – seemingly to the exclusion of common sense. Legally, a witness's original testimony carries far more weight than any revelation that might come later. Even if someone were to go to the authorities and say that he, and not the convicted murderer, actually pulled the trigger, it's difficult to get the court to consider new testimony.
"This case shows just how hard it is to get a second look at the evidence," says Bright, who's represented hundreds of death row inmates and teaches classes at Yale University.
Ewart has appealed the decision to the U.S. Supreme Court, but he admits the odds of the nation's highest court hearing the case are "kind of like winning the lottery."
There is one more hope, though. In Georgia, the Board of Pardons and Parole has the authority to commute Davis' sentence. And the board has indicated a willingness to do so. According to an order issued in July: "The members of the Georgia Board of Pardons and Paroles will not allow an execution to proceed in this State unless and until its members are convinced that there is no doubt as to the guilt of the accused."
The board already has heard from five of the trial witnesses and, according to Davis' sister, is interested in hearing from more.
Ewart is optimistic about the Board of Pardons and Parole, which cannot commute a death sentence until an execution date has been set. That likely will happen in October.
While Bright says the likeliest scenario would be that Davis’ sentence is commuted to life without the possibility of parole, Ewart is holding out hope that Davis will be pardoned. Short of that, he’s pushing for a life with parole sentence. In that event, he says, “we’re not talking about Troy walking out of jail.” That’s because when a death sentence is commuted to life with parole, the state requires that an inmate serve at least 25 years.
Bright says that if Davis is innocent, a life without parole commutation would only be reassuring to a point. “It’s not as bad as being executed for something you didn’t do,” Bright says, “but it’s still pretty bad.”
Editor’s Note: This story has been updated to clarify that Troy Davis’ attorney, Jason Ewart, is pushing for the possibility of a pardon or a life with parole sentence for his client.