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Troy Davis' guilt or innocence may be beside the point 

The nearly two-decade-old case raises concerns about the death penalty

Before last week, it had been 19 years since Troy Davis set foot in a courtroom. His last visit was a momentous one: On Aug. 28, 1991, Davis was convicted of murdering off-duty Savannah police officer Mark MacPhail and was sentenced to death. No physical evidence definitively linked Davis to the shooting — which took place in 1989, when MacPhail responded to the cries of a homeless man being assaulted in a Burger King parking lot — but witness statements proved compelling enough for a jury to submit a guilty verdict.

As Davis has languished on death row for nearly two decades — at one point coming within hours of being executed before a stay was granted — seven of the nine witnesses who originally implicated Davis in the shooting recanted or changed their testimony; several of them claim they were pressured, even threatened by police to name Davis as the gunman. Two additional individuals came forward claiming that Sylvester Coles, a prosecution witness who did not recant his testimony, admitted to them that he shot MacPhail. Despite those revelations, Coles has never been treated as a suspect by investigators.

The Georgia Supreme Court denied Davis a new trial, but in August of last year, the U.S. Supreme Court intervened, ordering that if new evidence existed, it should be heard before a federal district court to see whether Davis could "clearly establish his innocence."

The order marked the first time in 50 years that the Supreme Court instructed a lower court to hear new evidence in a case. Being granted the hearing was a victory both for opponents of state-sanctioned execution and for Davis' family. His sister, Martina Correia, who became an anti-death penalty activist with Amnesty International following her brother's conviction, told CL, "There's so many legal experts from all over the world who never thought we would get to this point, but we did. We have to make the best out of a bad situation. That's what lawyers have tried to do even though it was stacked against us. This was a serious uphill battle."

On June 23 and 24 in Savannah, Judge William T. Moore heard from eight witnesses whose testimony indicated that Davis was not the shooter — and 14 who testified for the prosecution. Regardless of the decision Moore submits to the Supreme Court, Correia is confident the door has been left open for the defense to appeal, and says she will continue to fight to prove her brother's innocence until she "has no breath left in her body." Still, Correia emerged from the hearing, which took place June 23 and 24 in Savannah, feeling less than optimistic, perhaps for good reason.

Proving Davis' innocence beyond a reasonable doubt — which Amnesty International USA Executive Director Larry Cox describes as "turning the burden of proof on its head" — is challenge enough, but it appears that the question of Davis' potential innocence is almost beside the point.

Georgia State University Law Professor Anne Emanuel, who attended the hearing, explains that before it can be decided whether or not the new evidence presented was sufficient to prove Davis' innocence, a couple of things must be decided: Can a person convicted of a crime even bring a claim of innocence after the fact when no other constitutional violations are being charged? And, crucially, would it violate the 8th Amendment (prohibiting cruel and unusual punishment) for an innocent person to be executed? Supreme Court Justices Antonin Scalia and Clarence Thomas have argued it would not.

"I think that makes [this case] important," says Emanuel. "It raises the possibility that we have a system in which, despite considerable doubt about [a suspect's] guilt, you could proceed with an execution."

If, and only if, these questions are answered in the affirmative would the Supreme Court consider whether Davis has successfully proved his innocence. "If [the burden of proof] is to 'clearly establish innocence,'" Emanuel adds, "it's a very high burden."

Laura Moye, the U.S. director of Amnesty's Death Penalty Abolition Campaign, says Davis' case is important because it reveals what's wrong with state-sanctioned execution — that there's just too much room for error.

"This is why we oppose the death penalty," she says. "If you sentence a person to life in prison, you can at least unlock the door and right the wrong. You can't have a person face execution when so much doubt hangs over our heads."

She hopes that, in the end, the decision made in Davis' case will be the genesis of permanent change in the justice system.

On June 14, Judge Moore asked each side to submit a brief explaining three things: whether the 8th Amendment bars the execution of people who can prove their innocence after the fact although they had an otherwise fair trial; what the applicable burden of proof would be; and whether an aggressive anti-terrorism federal law passed in 1996 would prevent the court from granting relief even if a petitioner can prove his innocence.

Moore has said he'll issue a decision after he's reviewed those briefs, but it's not entirely clear what happens after that. Some news outlets have reported that Moore could rule that Davis is entitled to a new trial, but GSU's Emanuel says that's not likely to happen.

"It would still be up to the state to retry him," she says. "A federal court is not going to tell the state what to do on that point. The claim is about execution completely."

If the decision is open to appeals in the 11th Circuit Court, neither side can expect a resolution any time soon.

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