In the Absence of Proof
By Bob Herbert
The New York Times
May 23, 2009
The options are running out for Troy
has been condemned to death for killing a police
It's bad enough that we still execute people in the
willing to do it when we're not even sure we've got the
right person in our clutches.
Mr. Davis came within an hour of execution last fall.
His relatives and his attorney, Jason Ewart, had come
to the state prison to say goodbye. Mr. Davis had eaten
his last meal, and Mr. Ewart was ready to witness his execution.
The mind-numbing tension was broken with a last-minute
stay from the Supreme Court. The case then made its way
against Mr. Davis's petition for a hearing to examine
new evidence pointing to his innocence.
The countdown to the ghoulish ritual of execution resumed.
Mr. Davis was convicted of shooting a police officer to
death in the parking lot of a Burger King in
murdered as he went to the aid of a homeless man who
was being pistol-whipped.
I'm opposed to the death penalty, but I would have a
very hard time finding even the faintest glimmer of
sympathy for the person who murdered that officer. The
problem with taking Mr. Davis's life in response to the
murder of Officer MacPhail is the steadily growing mass
of evidence that Mr. Davis was not the man who
committed the murder.
Nine witnesses testified against Mr. Davis at his trial
in 1991, but seven of the nine have since changed their
stories. One of those seven, Dorothy Ferrell, said she
was on parole when she testified and was afraid that
she'd be sent back to prison if she didn't agree to
cooperate with the authorities by fingering Mr. Davis.
"I told the detective that Troy
she said in an affidavit, "even though the truth was
that I didn't know who shot the officer."
Another witness, Darrell Collins, who was a teenager at
the time of the murder, said the police had "scared"
him into falsely testifying by threatening to charge
him as an accessory to the crime. He said he was told
that he would go to prison and might never get out if
he refused to help make the case against Mr. Davis.
This week Mr. Davis's lawyers, led by Mr. Ewart of the
Arnold & Porter law firm in Washington, filed a last-
ditch, long-shot petition with the Supreme Court,
asking it to intervene and allow Mr. Davis's claims of
innocence to be fully examined.
An extraordinary group of 27 former judges and
prosecutors joined in an amicus brief in support of the
petition. Among those who signed on were William
Sessions, the former director of the F.B.I.; Larry
former Congressman Bob Barr, who was the
for the Northern District of Georgia from 1986-1990;
and Rudolph Gerber, who was an
of appeals judge from 1979-2001.
The counsel of record for the amicus brief is the
Harvard law professor Charles Ogletree. The brief
asserts that the Supreme Court should intervene
"because Mr. Davis can make an extraordinary showing
through new, never reviewed evidence that strongly
points to his innocence, and thus his execution would
violate the Constitution."
The very idea of executing someone who may in fact be
innocent should also violate the nation's conscience.
Mr. Davis is incarcerated. He's no threat to anyone.
Where's the harm in seeking out the truth and trying to
see that justice is really done?
And if the truth can't be properly sorted out, we
should be unwilling to let a human life be taken on
There was no physical evidence against Mr. Davis, and
no murder weapon was ever found. At least three
witnesses who testified against him at his trial (and a
number of others who were not part of the trial) have
since said that a man named Sylvester "Redd" Coles
admitted to killing the police officer.
Mr. Coles, who was at the scene, and who, according to
witnesses, later ditched a gun of the same caliber as
the murder weapon, is one of the two witnesses who have
not recanted. The other is a man who initially told
investigators that he could not identify the killer.
Nearly two years later, at the trial, he testified that
the killer was Mr. Davis.
Officer MacPhail's murder was a horrendous crime that
cries out for justice. Killing Mr. Davis, rather than
remedying that tragedy, would only compound it.
Copyright 2009 The New York Times Company