Death-row inmate Troy Anthony Davis on Tuesday will file a last-ditch appeal to the U.S. Supreme Court, the final court that can consider whether Davis killed a Savannah police officer 20 years ago.
Davis' attorneys asked the high court to send Davis' case back to a federal judge for an evidentiary hearing on his innocence claims.
"Davis' new evidence eviscerates the state's case against him," the filing said. "Despite substantial new evidence of his innocence, no court has ever held a hearing to assess the scores of new witnesses that show Mr. Davis is innocent."
The petition says that carrying out Davis' execution without a "full and fair hearing in which he could make a truly persuasive demonstration that he is actually innocent" would be unconstitutional.
Davis, 40, sits on death row for the killing of off-duty Officer Mark Allen MacPhail. The 27-year-old former Army ranger was shot three times before he could draw his weapon. He was responding to the wails of a man being pistol whipped in a Burger King parking lot.
Since Davis' 1991 trial, seven of nine state witnesses have recanted their testimony and other witnesses have implicated Sylvester "Redd" Coles as the shooter. Coles was at the scene at the time of the shooting and the first person to implicate Davis in the killing.
Davis is filing an unusual petition for a writ of habeas corpus directly to the Supreme Court. It is through these lawsuits, almost always filed in lower courts and then appealed to the high court, that an inmate can bring a constitutional claim.
The last time the court granted relief to such an extraordinary petition was in 1925, Jason Ewart, one of Davis' attorneys, said. This involved Philip Grossman, who was serving time for contempt even though he had been granted a presidential pardon. The high court ordered Grossman's release.
Since then, however, the high court has sent some cases back to federal court judges, directing them to conduct hearings, he said.
"This is the last court that we can go to," Ewart said. "It's something that's not often granted, but we think this is an exceptional case."
Davis' innocence claims have attracted worldwide attention. Former President Jimmy Carter, Pope Benedict XVI and former FBI Director William Sessions have asked that Davis be spared death by lethal injection. Amnesty International is holding a rally on Davis' behalf Tuesday afternoon at the state Capitol.
Chatham County prosecutors, who tried Davis, have long expressed confidence that Davis was the triggerman. Larry Chisolm, who became Chatham's new DA in January, declined comment Monday on the substance of prior court rulings or the facts of Davis' case.
"He's not going to take any action at all until all appeals are exhausted," Lydia Sermons, a spokesman for the DA's office, said Monday.
Davis' Supreme Court petition notes that the only two eyewitnesses who have not recanted their trial testimony are Coles, who later told police he had a .38 caliber revolver on the night of the shooting, and Stephen Sanders, who was at the Burger King with his Air Force buddies.
Two hours after the shooting, Sanders told police he could not recognize anyone at the scene except by their clothes. At the trial two years later, Sanders identified Davis as the killer.
Davis' recantation evidence is exceptional and warrants intervention by the high court, his petition says.
"Few - if any - recantation cases involve consistent, multiple recantations from state witnesses who were innocent bystanders to the crime," the petition says.
In past years, Davis has come extraordinarily close to being executed and to getting relief in the courts.
Davis' execution had previously been set three times but he was granted stays each time - once in 2007 less than 24 hours before he was to be put to death.
Davis has lost his bid for a new evidentiary hearing in two important court rulings, both decided by one-vote margins. In March 2008, the Georgia Supreme Court turned him down in a 4-3 decision. A month ago, the federal appeals court in Atlanta rejected Davis' appeal by a 2-1 vote.
On April 16, the two federal appeals court judges in the majority said they viewed the recantations with skepticism and, after reviewing Davis' claims, "remain unpersuaded."
In dissent, Judge Rosemary Barkett said to execute Davis in the face of the new evidence "is unconscionable and unconstitutional."
The court kept in place Davis' stay of execution for another 30 days. That expired Saturday.