In 1991, Davis was convicted in the shooting death off-duty Savannah police officer Mark MacPhail, and was subsequently sentenced to death. Since that time, seven of the prosecutions nine witnesses have either contradicted or recanted entirely the testimony they gave following the 1989 murder (click here to read excerpts of those recantations), suggesting that Davis’s conviction might have been in error. In August of last year, the U.S. Supreme Court ordered that Davis be granted a hearing during which new evidence — evidence that didn’t exist at the time of Davis’s trial — would be heard in Georgia trial court; that court is instructed to report its findings back to the Supreme Court. Davis’s case marks the first time the Supreme Court has handed down such an order.
Amnesty International, advocating on Davis’s behalf, arranged a conference call this morning so members of the media could discuss the hearing with Amnesty International executive director Larry Cox and Georgia State law professor Anne Emanuel. Questions about how the hearing would go down proved difficult to answer, mostly because there's never been a hearing like this before.
Says Emanuel, “[Everyone is] wondering how this will proceed because it is so extraordinary and unusual. It’s been asked to receive testimony, findings of fact to clearly establish innocence … it would appear that the trial court will follow that direction, whatever form their report takes.”
Besides proving their client's innocence beyond a reasonable doubt — which Cox likens to "turning the burden of proof on its head" — Davis's counsel has the unique challenge of arguing that executing Davis, if he is indeed innocent, would be a violation of his constitutional rights. The Supreme Court has been ambiguous about whether that's actually the case.
"The Court has never clearly said that it violates the Constitiution to execute an innocent person," says Emanuel. "The argument is that the Constitution is an enumerated document — if it’s not there, it’s not unconstitutional under our legal system."
It remains unclear whether the prosecution, represented by Attorney General Thurbert Baker's office, will present any new evidence against Davis (they will, however, have the ability to cross-examine the defense's witnesses), or whether Davis will take the stand. Amnesty International confirms that Davis will be present at the hearing, which will be held at Tomochichi Courthouse and Federal Building in Savannah.
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