Why another Troy Davis hearing? 

At 1 a.m. on August 19, 1989, 27 year old police officer Mark McPhail, who did part time security work at Burger King on Oglethorpe Avenue, tried to rescue Larry Young, a homeless person, who was being harassed and beaten in the bus station- Burger King parking lot.

For his courage and compassion, McPhail was killed with two shots from a .38 revolver. When Savannah police officer David Owens arrived, McPhail was dead. Two likely suspects, John Doe -- I don't use his name because he's not had his day in court -- and Troy Anthony Davis fled, though ought not the innocent one have remained and done what he could for McPhail, like yelling "Call 911" ?

An hour earlier, outside of a party attended by Doe and Davis in the Cloverdale neighborhood, Michael Cooper was shot in the jaw while sitting in a car. The weapon was .38 caliber also. Cooper was taken to the hospital and released.

Most witnesses agree it was Doe who tormented Larry Young in the parking lot and dug into his pocket to draw a gun, outraged that Young turned his back on him.

As police searched for McPhail's killer, John Doe went to the police department and accused Troy, without telling the police that he -- Doe-- was carrying a .38 revolver leading up to the murder. Still, the police named Davis as the prime suspect and launched a media campaign against him.

After taking off for Atlanta and then returning, Davis turned himself in, was charged with malice murder and convicted in 1991 by a jury after one hour of deliberation. He was also convicted by the same jury for shooting Cooper and was sentenced to death.

Problems concerning suspicion cast on Davis, the investigation and the media campaign that may have polluted witness identification and the trial itself were the following:

1) The police set off the media blitz against Davis without showing witnesses photographs of possible suspects to see if they could give a positive ID before the city-wide publicity of Davis's picture. 2) The police didn't search Doe's house or car for the murder weapon, which was never recovered. 3) The photos shown witnesses days after the media campaign was begun always included a picture of Davis, never John Doe.

Davis' appeals and petition for a writ of habeas corpus -- a process to determine severe error or state lawlessness -- all came to naught. In 2007, he filed for a new trial based on newly discovered evidence and was again denied. He then asked the U. S. Court of Appeals for permission to file a second habeas petition on the grounds of actual innocence, so he could have an evidentiary hearing that would provide direct testimony and cross examination of witnesses.

Davis' lawyers obtained affidavits from seven of the nine witnesses who testified against him at trial and recanted their testimony. Most asserted they were threatened by the police.

The defense's new evidence also included affidavits from three friends of John Doe, who swore he confessed to killing McPhail.

On Troy's behalf, his sister, Martina Correia, conducted a campaign that won support from U.S. attorneys, federal judges, a former director of the FBI, the Pope and European Parliament.

Although Davis' lawyers maintain no physical evidence links Davis to the murder of Mark McPhail, former DA Spencer Lawton disagrees, as a ballistic expert testified of a possible match between a bullets that injured McPhail and Cooper and shell casings from both shootings indicating both men could have been shot by the same gun.

As McPhail was convicted of shooting Cooper, in Lawton eyes, he must be McPhail's murderer, though no gun was recovered that connected the ballistic evidence to anyone.

Lawton contends there is no danger that an innocent man will be executed because Davis is obviously guilty and the new affidavits were all reviewed by 29 judges, who didn't find anything wrong.

That is not logical because appeals judges may simply rubber stamp decisions made below. Almost all of those 29 judges didn't see this case was compromised from the very beginning by publicity before witnesses had a chance for deliberative identification of the person who shot officer McPhail.

But finally, Appeals Court Judge Rosemary Berkett, though in the minority when the Court of Appeals denied Davis' second habeas petition, blew the whistle. She recognized if the new affidavits hold up under scrutiny, it is credible to assert that Troy Anthony Davis may actually be innocent; and held it's in violation of the 8th and 14th Amendments to the Constitution to execute someone when there's considerable doubt as to whether he is guilty of the crime charged .

The U. S. Supreme Court, for the first time in 50 years granted Davis' original petition and ordered the U. S. District Court in Savannah to determine "whether evidence that could not have been obtained at the trial clearly establishes (Davis') innocence."

Every twist and turn of the legal process since 1989 is "like a punch in the stomach...you have to relive the night over and over," McPhail's widow, Joan, told the Morning News, but resolution and peace of mind will not be brought by providing the ultimate punishment to the wrong person.

Because of the Supreme Court's intervention and world wide concern, the system will more than likely work from now on.

At the hearing in the courtroom of Chief District Court Judge William T. Moore there will be one of the most riveting judicial proceedings ever conducted, which hopefully will yield-- no matter how the chips fall -- truth, justice and closure, though not soon enough for the McPhail and Davis families.


About The Author

Ben Hubby, MD

More by Ben Hubby, MD


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Connect Today 10.23.2016

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