Nine witnesses. No physical evidence.
It was on this that a jury of seven blacks and five whites convicted Troy Davis of gunning down Savannah police Officer Mark MacPhail, who was working a second job off-duty.
Georgia initially planned to execute Davis in July 2007, but the pardons board granted him a stay less than 24 hours before he was to die. Then the United States Supreme Court stepped in a year later and halted the lethal injection just two hours before he was to be executed. A federal appeals court halted another planned execution a few months later.
Davis has been nose-to-nose with the needle before, but this time it seems he’s all out of miracles.
Losing Site of Substance
Officer MacPhail died rushing to the aid of a homeless man who was being assaulted in a parking lot near a Burger King the night of Aug. 18, 1989.
MacPhail was 27 years old. He was married, with a 2-year-old daughter and an infant son. His father was a colonel in the United States Army, and MacPhail had dutifully served his nation as an Army Ranger for six years. He had been a patrol officer in Savannah for three years, and aspired to join the city’s mounted patrol.
MacPhail found Davis – who already had been involved in a shooting earlier in the evening outside a pool hall – among three men fighting over a beer with a homeless man.
The officer was gunned down even before he could draw his weapon, shot twice; once in the face, and once through the heart.
MacPhail’s widow and the children who never knew their daddy have been constant advocates for avenging his death. They have been tireless in ensuring that the name of their lost husband and father isn’t forgotten through round after round of appeals.
Still, in a story moved earlier today on the Associated Press wire about Davis’ quest for clemency, MacPhail’s name doesn’t even appear until the fifth paragraph. Officer MacPhail’s name, his service, what he died trying to do and the lives he left behind must be inextricably linked to any discussion of Davis’ fate.
Facts are Fleeting
Bullets and shell casings recovered from the scene of MacPhail’s shooting tell us that the weapon used was a .38 caliber gun. But we’ve never found the gun.
The first to link Davis to the officer’s shooting was Sylvester “Redd” Coles, who had been among the party arguing with the homeless man – Larry Young – when MacPhail was gunned down. The evening after the shooting, Coles went to the Savannah police and fingered Davis for the crime. Coles told police that Davis had a .38 caliber handgun, and that Davis had assaulted Young.
Four people – including Coles – testified that they had seen Davis, wearing a white shirt, had pistol-whipped Young then shot MacPhail. A neighbor of Davis’ family testified that, soon after the murder, Davis had confessed to him that he’d shot MacPhail, as did one of Davis’ fellow inmates, who added that Davis shot MacPhail because he was afraid MacPhail would arrest him for the earlier shooting.
As for the earlier shooting, Davis had been charged with firing at a car driven by occupants who shouted obscenities at him as he drove past. The victim, Michael Cooper, was drunk, got shot in the face and didn’t remember anything. One of Cooper’s friends in the car initially said that Cooper’s assailant had been wearing a white shirt, the admitted on cross examination that he didn’t see who shot Cooper.
Cooper himself said that he didn’t think Davis knew him well enough to shoot him. Seriously.
Two other witnesses for the prosecution had problems, too: one had made a statement to the police that he later admitted he had been coerced by the police to make, and another was a ballistics expert who testified that the same .38 caliber gun had been used to shoot Cooper as had been used to shoot MacPhail although, really, he couldn’t be certain about that.
Long story short, of all the witnesses against Davis, only two have not recanted their testimony. One of them is Coles, who initially pointed the blame at Davis, owned a .38 caliber pistol that he could never produce and who was present when MacPhail was shot.
Davis’ mother testified that Davis was home that night until he left with his sister for Atlanta. But that’s probably not true – the question is not whether or not Davis was at the crime, but whether or not he pulled the trigger.
Squarely in the Shadow of Doubt
Ballistics are inconclusive, and jurors from Davis’ original trial in 1991 have since said it was a mistake. Davis’ defense has been clipped by cuts to federal defender programs that left his defense team without the resources to interview additional witnesses.
U.S. Rep. John Lewis has raised the issue that one of Davis’ original accusers, Coles, is the most likely culprit in MacPhail’s death.
In most cases, whether or not Davis did it would be important, but not paramount. In this instance, however, Davis is facing the death penalty. Tonight, he’d due to get the needle. There are no appeals for that.
The death penalty is meant for the guy who everyone saw holding the smoking gun. It’s for the guy who did it, beyond the shadow of a doubt. But with only two witnesses standing by their testimony and several occasions when last-second decisions have spared him, it’s clear that there’s still ample room for doubt and that, indeed, doubt is feeling ever crevice and cranny.
But does commuting his death sentence automatically mean that Davis is not guilty? Is room for doubt enough to overturn his conviction? Is it possible that he is “not guilty enough” to dodge the death penalty
The Tie That Binds
The problem is, come 7 tonight, none of that will matter. It won’t matter whether or not Davis killed MacPhail, or shot Cooper, or lived a good life or loved his mama. Because Davis will be dead.
Something still could happen – some small miracle. If anything does intervene, however, there’s no mechanism in our judicial system to accept it as a sign of God and call off the execution. It will only prolong Davis’ life a little longer.
This is the great blight of our justice system, one that allows for appeals and tries to desperately to take into account the possibility of human error. We are all flawed (granted, some more than others), but the judicial system tries to see beyond that to the most perfect truth possible.
Here, however, recantations and time have left the truth cloudy. Somewhere in the mist stands Officer MacPhail, whose life and sacrifice must not be forgotten, along with Davis, his convicted murderer. And for all the counterbalances added to balance out the scales of justice, still we have this one element from which there’s no recourse: the death penalty.
The death penalty is not a deterrent for crime. MacPhail’s family has sought closure, but they have not made the case that killing Davis will reduce the chances that someone shoots another police officer. Indeed, a great many officers have given their lives in the line of service since the evening of Aug. 18, 1989. People who commit capital crimes are not deterred by the death penalty; indeed, they commit them precisely because they presume that they’ll never get caught or that they’ll never get convicted. Our system of plea bargaining means that murderers who are caught dead to rites can plead out and avoid the death penalty, and that men and women who did not commit the crime must also take the blame to avoid the same fate Davis now faces.
True, murder is heinous, and the murder of a lawman especially so. Davis’ execution may bring MacPhail’s family the peace and closure they’ve sought for more than two decades, but it will not reunite them with their beloved. It will remind us only of how flawed we all are – fatally so.