Troy Davis and the Meaning of 'Actual Innocence'

Sitting on death row in Georgia, Troy
Davis has won a key victory against his own execution. On Aug. 17, the
U.S. Supreme Court instructed a federal court in Georgia to consider,
for the first time in a formal court proceeding, significant evidence
of Davis' innocence that surfaced after his conviction. This is the
first such order from the U.S. Supreme Court in almost 50 years.
Remarkably, the Supreme Court has never ruled on whether it is
unconstitutional to execute an innocent person.

The order read, in part, "The District
Court should receive testimony and make findings of fact as to whether
evidence that could not have been obtained at the time of trial clearly
establishes petitioner's innocence." Behind the order lay a stunning
array of recantations from those who originally testified as
eyewitnesses to the murder of off-duty Savannah police officer Mark
Allen MacPhail on Aug. 19, 1989. Seven of the nine non-police witnesses
who originally identified Davis as the murderer of MacPhail have since
recanted, some alleging police coercion and intimidation in obtaining
their testimony. Of the remaining two witnesses, one, Sylvester "Redd"
Coles, is accused by others as the shooter and identified Davis as the
perpetrator probably to save himself from arrest.

On the night of the murder, MacPhail was
off duty, working as a security guard at a Burger King. A homeless man
was being beaten in the parking lot. The altercation drew Davis and
others to the scene, along with MacPhail. MacPhail intervened, and was
shot fatally with a .38-caliber gun. Later, Coles arrived at the police
station, accompanied by a lawyer, and identified Davis as the shooter.
The police engaged in a high-profile manhunt, with Davis' picture
splayed across the newspapers and television stations. Davis turned
himself in. With no physical evidence linking him to the crime, Davis
was convicted and sentenced to death.

Jeffrey Sapp is typical of those in the case who recanted their eyewitness testimony. He said in an affidavit:

"The police ... put a lot of pressure on
me to say 'Troy said this' or 'Troy said that.' They wanted me to tell
them that Troy confessed to me about killing that officer ... they made
it clear that the only way they would leave me alone is if I told them
what they wanted to hear."

Despite the seven recantations, Georgia's
parole commission has refused to commute Davis' sentence. Courts have
refused to hear the evidence, mostly on procedural grounds.
Conservatives like former Georgia Congressman and prosecutor Bob Barr
and former FBI Director William Sessions have called for justice in his
case, along with Pope Benedict XVI, President Jimmy Carter, the NAACP
and Amnesty International.

Supreme Court Justice John Paul Stevens
wrote for the majority, "The substantial risk of putting an innocent
man to death clearly provides an adequate justification for holding an
evidentiary hearing." Yet conservative Justice Antonin Scalia dissented
(with Justice Clarence Thomas), writing that Davis' case "is a sure
loser," and "[t]his Court has never held that the Constitution forbids
the execution of a convicted defendant who has had a full and fair
trial but is later able to convince a habeas court that he is
'actually' innocent."

Davis has had three execution dates, and
in one instance was within two hours of lethal injection. Now he will
finally have his day in court. With the courageous support of his
sister, Martina Correia (who has been fighting for his life as well as
her own--she has stage 4 breast cancer), and his nephew, Antone De'Jaun
Correia, who at 15 is a budding human rights activist, Davis may yet
defy death. That could lead to a long-overdue precedent in U.S. law: It
is unconstitutional to execute an innocent person.

Denis Moynihan contributed research to this column.