September 20th, 2011
10:22 AM ET

Toobin: Troy Davis could be 'out of options' after clemency denied

Editor's note: Jeffrey Toobin, CNN's senior legal analyst, offered his immediate reaction Tuesday to the Georgia Board of Pardons and Parole's decision to deny clemency to death row inmate Troy Davis.

The creativity of defense attorneys aside, convicted police killer Troy Davis appears "out of options," Toobin said.

Davis' attorneys pleaded with the board, telling it that seven of nine witnesses who testified against their client had recanted or changed their testimony. The board also heard the defense assert that witnesses have come forward to say someone else was responsible for the 1989 murder of Savannah, Georgia, police officer Mark MacPhail.

But the board, which also denied clemency to Davis in 2008, was not swayed.

"This has been an extraordinary legal saga since the murder in 1989, and two years ago the United States Supreme Court did something it almost never does - instructed a District Court in Georgia to take another look at the case, hold a hearing," Toobin said.

A Savannah judge did just that, Toobin said, and issued a 170-page opinion saying that, despite the recanted testimony, "there is no substantial doubt cast on the verdict as far as this judge could tell." In short, Toobin said, the judge sided with the jury that originally found Davis guilty.

"I know lawyers can be very creative, but I think Troy Davis is really out of options. ... I never can underestimate the creativity of lawyers, but certainly, based on what I can see, based on my familiarity with the law, I think he will be executed (Wednesday)."

In addition to petitions carrying 600,000 signatures calling for clemency, Davis also garnered supported from Amnesty International, ex-President Jimmy Carter and Archbishop Desmond Tutu, among others. Asked if he had ever seen so much doubt and outrage surrounding a death penalty case, Toobin cited the controversy over Julius and Ethel Rosenberg, the couple who in 1953 became the first U.S. civilians executed for espionage after being convicted of spying for the Soviet Union.

"That certainly generated more international outrage, but in recent history, certainly the Troy Davis case has generated the most attention, the most outrage in the United States. He's certainly the best-known person on death row," Toobin said.

Making this case all the more "peculiar," Toobin said, is that the execution will take place as executions and death sentences are on a significant decline since the 1990s.

"The death penalty is really fading in the United States, and there is a lot of disagreement about why that is, but certainly, (there are) fewer executions than there used to be. But this one does appear to be going forward, even with all the protests."

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Filed under: Courts • Crime • Death Penalty • Georgia • Justice • Supreme Court • U.S.
soundoff (247 Responses)
  1. Kimo

    Why do conservatives think more about a few dozen cells (blastocysts) than they do fully formed human beings who may be innocent of the crime for which they were convicted? Do they really believe the system never makes a mistake? History proves otherwise. Or maybe they just don't care and figure that the person probably deserved death for some reason anyway. Or do they think it is better that a few innocent are executed than one guilty person go free? I bet they would change their mind if a friend or relative were ever falsely arrested.

    September 20, 2011 at 2:31 pm | Report abuse |
    • Daniel

      I'm a very passionate conservative. I'm also a very strong Christian. I am pro life in all occasions. Abortion is the murder of the innocent, the death penalty is the murder of the guilty. Murder is wrong no matter what. The death penalty has no place in a developed nation. Life is an inalienable right in our country. I know you also support getting rid of the death penalty, but I would urge you to realize that many, many Conservatives feel the same way. It disgusts me as much as you that people cheered at the Tea Party debate when Wolf asked Perry a question about being a governor in the state with the most executions.

      September 20, 2011 at 3:22 pm | Report abuse |
    • Seriously Y.

      As a conservative and a Christian, I could not agree with you more! I completely agree that it is a double standard that goes against everything Christians are supposed to stand for. It's really sad.

      September 20, 2011 at 3:23 pm | Report abuse |
    • Bob F.

      I consider myself a liberal and a Christian (some may wish to debate the use of those two terms but let's not do that here). The Ten Commandments are clear: "Thou Shalt Not Kill." It offers no qualifications that would allow state-sponsored killing (capital punishment), killing of murderers or rapists, killing of fetuses (intentional abortion), or any other killing.

      September 20, 2011 at 3:40 pm | Report abuse |
    • Gretchen

      Yes, Conservatives trust the government to administer the ultimate penalty – death – but for all else the government is impotent, conspiratorial, and corrupt.

      September 20, 2011 at 3:57 pm | Report abuse |
  2. Jeff Frank ( R - Ohio ) "Right Wing Insanity"

    The RIGHT way. The WRONG way. The GEORGIA way.

    September 20, 2011 at 2:45 pm | Report abuse |
  3. Gloria

    I have never, and never will, believe in the death penalty. What I also don't understand about this case, is from what I understand, if this board had overturned his death penalty, his sentence would probably have been commuted to life or life without parole. I know they were basing their plea for clemency upon the fact that so many witnesses had recanted their statements, etc., but if the court believed after all that that he didn't deserve to be put to death, why would they keep him in prison for life; wouldn't this indicate he was innocent all along? I don't believe this qualifies as double jeopardy since he was already convicted; a new trial would have been ordered on the possibility he is innocent.

    September 20, 2011 at 2:45 pm | Report abuse |
  4. Bob Newhart

    He was tried, convicted and the conviction upheld by numerous judges. What else is there to say? Its time for justice to be served

    September 20, 2011 at 2:48 pm | Report abuse |
    • Chance

      Well, what is justice though? Taking a life for a life? Then justice has no point, life in prison gets the bad guy off the street and it appear to be cheaper than the few years on death row. So what's the upside of death penalty? Bringing peace to the families of victims?

      September 20, 2011 at 4:08 pm | Report abuse |
  5. Mac

    Moron killed a cop and was found guilty. I doubt those that recanted have better memory of the events years later. Since you inflicted death on another you sub-human piece of trash, enjoy death. This weekend I will watch the NFL, play with my kids, and maybe watch a movie. You will be in a box in the ground, your life wasted because of your own stupid choices.

    September 20, 2011 at 2:53 pm | Report abuse |
  6. Jeff Frank ( R - Ohio ) "Right Wing Insanity"

    You need the "death penalty" Gloria. It's just that you don't need lame racist prosecutors that don't reach for the real "meat" of the evidence.

    September 20, 2011 at 2:54 pm | Report abuse |
  7. Reds

    Obviously no one on this board read John Grisham's "The Confession" where a young man on death row was innocently executed. The real killer came forward and confessed, but no one believed him. Then we find out that the sheriff and police railroaded the 18 year old into a false confession. A few months later the facts were proven and they had executed an innocent man.
    Because of all the false convictions, the US needs to abolish the death penalty.

    September 20, 2011 at 3:03 pm | Report abuse |
  8. Adam

    Three things. (1) I am ashamed to be a resident of Georgia. Does anyone else the insanity that was created in the Schiavo case to save the life of a brain dead woman, and how no one in the government is doing anything to prevent this execution and third, what kind of country to we lieve in that the board that decided not to grant clemency is secret and won't release their vote. If there was even one dissenting voice, should the state take a mans life.????

    September 20, 2011 at 3:03 pm | Report abuse |
  9. SDTangler

    Ahh, the South. You keep your white, pretty and guilty girls alive (Casey Anthony, Susan Smith, + many others), and kill the innocent black men. And call it justice. Morons.

    I'm a white man who escaped from the racial South.

    September 20, 2011 at 3:06 pm | Report abuse |
  10. monique

    if a "guilty" woman or man i.e Casey Anthony & OJ Simpson can be found innocent by a jury of their peers then certainly this man or any person for that matter could be found guilty by a jury with the possibility of their innocence.

    September 20, 2011 at 3:11 pm | Report abuse |
  11. HappyCorner

    Two things.

    The major problem this case has is the burden of proof shifts dramatically when you go from innocent to found guilty, and then to guilty now find the innocence, which is a very difficult thing to do, the evidence needs to demonstrate overwhelmingly that the convicted is innocent. A more difficult process in Mr. Davis’ pursuit, as his evidence is based on eyewitness testimony, truly very weak evidence to start, and questions of ballistics testing. Sadly this case lacks hard evidence at all, and for this a man will die.

    Also, doesn’t anyone consider the man behind the curtain, and the disposition of his soul? I definitely worry about the state employee who will be putting Mr. Davis to death, and I worry about his/her conscience. In the Bible it says “You shall not murder.” Pretty cut and dry, to the point, without a but, except or maybe if this happens kind of contingency, simply no murder. State sanctioned killing is by definition murder, and the man/woman behind the curtain is making it happen. I don’t believe the state has a right to put another man in this position, and I do not believe the man/woman has to right to pass judgment.

    September 20, 2011 at 3:19 pm | Report abuse |
  12. najwa. qaiyim


    September 20, 2011 at 3:31 pm | Report abuse |
  13. Arick

    I do not support the death penalty, but it is not out of sympathy for the criminals. Instead, it is the idea that the state may execute (and probably have executed) innocent people that forms my opinion. Can you imagine the horror of knowing that you are innocent, but are going to be executed by your country? I'm not saying this gentleman is innocent, I haven't read much about the case, but I would rather see a thousand murderers get life in prison than for the state to kill one innocent man. Just how I feel about it.

    September 20, 2011 at 3:49 pm | Report abuse |
  14. colleen

    Executing him is wrong. If there is a shadow of a doubt, his life should be spared. I feel for the family of the man who was killed. This was a horrible and tragic thing to happen to them. Two wrongs, however, do not make a right. To take someones's life, one has to be 100% sure it is justified. I have no idea what the court is thinking.

    September 20, 2011 at 3:50 pm | Report abuse |
    • Kathleen

      What makes you believe the court is not 100% certain the verdict is just? Not asking to be a smarty pants. I have a problem thinking that after going over all the evidence this many times the justice system would go ahead with an execution if it thought there was a shadow of a doubt.

      September 20, 2011 at 5:17 pm | Report abuse |
  15. NJTFL

    It seems as if he had killed anyone other than a Police officer there would be consideration. The DA does not want his capital case over turned even if it mean killing an innocent man. The Mother even tho she was not there seems to beleive he is the killer and for some reason she is being heard over everyting else. There is no place for murder at any level except in a time of war. We kill murders and pay someone to kill the murderer. It's does not make sense at all. The dealth pently is our dated and has proven not to deter deadly crimes. What is the benifit?

    September 20, 2011 at 3:52 pm | Report abuse |
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