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. suzie

    So very sad. All I know is this – Trey Davis, if executed by the State of Georgia, will be in a better place. However, his murderers will not have the same "eternal" experience.

    September 20, 2011 at 4:03 pm | Report abuse |
    • justice

      What about the policeman that he murdered?

      September 20, 2011 at 4:04 pm | Report abuse |
    • andrew

      @justice

      you mean the policeman that evidence indicates he DID NOT murder? They should find his real killer.

      September 20, 2011 at 4:13 pm | Report abuse |
    • Steve

      No, Andrew, the evidence does not show that he did not kill the officer. Read the judge's 170-page opinion. Suzie: is Hell a better place? That's where lying murderers go.

      September 20, 2011 at 4:38 pm | Report abuse |
    • Dave

      What do you mean 'what about the policeman'? Unfortunately, anything can happen to either one of us. People do die. However, revenge is not the solution.I dont know if Troy Davis is innocent or guilty, but if he is innocent, I go back to your question, what about the policeman? His life is over .You cope and you move on. Sounds cold, but thats the reality.People lose loved ones in war, as a result of accidents, as victims of crime, etc. But there is not a revenge to be had for each and every death that occurs. Ive lost lost ones due to crime. Not once have a desired another life be taken to avenge theirs. I just don't understand it.

      September 20, 2011 at 4:41 pm | Report abuse |
    • Nurse143

      I am not sure of the details about the extent of "change" in previous testimonies given nor witness motivations to perjure themselves then or recant now. However, the additional potential suspect has potentially not been charged/investigated and would we really want to base that trial on changing testimony decades later? There is still a dead policeman, and I still count at least one "witness" whose story is unchanged, and the jury verdict then plus the Supreme Court mandated re-review of the case without any changes, may mean he has little hope for the judicial system to work for him now.

      September 20, 2011 at 4:45 pm | Report abuse |
    • Laura

      Is there a place you can read that 170 page opinion? I'd be curious to see what that judge said. The other question I have is what happened in the case of the first person he supposedly shot that night? The person who was in the car. Does this involve the same group of witnesses? I'm sure he got the death penalty for killing a police officer but I'm curious about the other shooting as well.

      September 20, 2011 at 4:54 pm | Report abuse |
    • crusader12

      Anyone who still believes we should "burn'em all and let God sort them out" is ignorant. Maybe they need the death penalty?

      September 20, 2011 at 6:02 pm | Report abuse |
  2. Chris

    Some of the excellent countries we share the death penalty with, China, North Korea, Saudi Arabia, Sudan, Syria,Yemen, and Iran! I still cant believe that a civilized country such as our still uses this barbaric practice. A sad commentary on our " Christain " nation, we tell the whole world how fair and equitable a nation we are, and then we allow executions where there is clearly some doubt involved. The world laughs at our hypocrisy!!

    September 20, 2011 at 4:10 pm | Report abuse |
    • crusader12

      not only do they laugh at us, they are planning to destroy us... 🙂

      September 20, 2011 at 6:00 pm | Report abuse |
  3. Critical Thinker

    Only in "REDNECK" Georgia! Inbred Whites in Georgia are keeping the KKK alive. Lord, have pity on these stupid REDNECKS!

    September 20, 2011 at 4:28 pm | Report abuse |
    • Ro

      100% agreed!! It's not only Georgia either, btw.....but you are so right

      September 20, 2011 at 5:19 pm | Report abuse |
    • Jean Sartre

      Don't you dare say that!

      The great states of: Mississippi, Tennessee, Kentucky and both North & South Carolina are in the group too!

      The folks in these states would feel slighted if they were not mentioned…

      September 20, 2011 at 5:46 pm | Report abuse |
  4. Gloria

    I left a comment here several hours ago, and it doesn't appear. It was courteous and not offensive at all; I don't understand why my comments sometimes do not get posted.

    September 20, 2011 at 4:43 pm | Report abuse |
  5. Nurse143

    I heard a reporter say today, "this isn't about innocence it is about clemency" – can anyone explain? – – if noone is saying he is innocent, implying the verdict was just, then why should the jury's verdict be changed.

    September 20, 2011 at 4:51 pm | Report abuse |
  6. jason

    What is so peculiar about this execution? 22 years to get it right!

    September 20, 2011 at 4:53 pm | Report abuse |
  7. Proud to be a Georgian

    For those of you out there who think Georgia is only comprised of inbreds, rednecks, and racist whites ya'll are mistaken and just as close minded as the groups that you presume to lump all white Georgians into. I am a white Georgian and very proud to be a Georgian. I despise the Ku Klux Klan, my family has no inbreeding in the family tree, and the people I consider to be "rednecks" are some of the most caring well mannered people I have ever met. And to those people living in Georgia and ashamed of it: Delta is ready when you are. If you are ashamed to live here then leave, you are certainly not helping improve the state. Troy Davis was convicted by his peers for murdering a police officer and given the death penalty by those same peers. He has used all his appeals and been denied everytime. It is time for him to receive the punishment he was given

    September 20, 2011 at 4:56 pm | Report abuse |
    • Jean Sartre

      Written like a true Georgian; I'll just bet you actually spoke with GOD before you posted your ever so enlightened response!

      12 tanned people did not convict him!

      12 tanned people did not sentence him to death!

      Juries never make errors!

      Prejudice does not still rule the South!

      Yeah, I guess you are right...

      September 20, 2011 at 5:56 pm | Report abuse |
    • crusader12

      lol YEEEHAAAW ya'll the hillbilly hick from Georgia's wayin' in on some der politiks! YEEHAAW!

      September 20, 2011 at 5:58 pm | Report abuse |
  8. WornOutShoe

    What I find strange is how many people after the Casey Anthony trial stated "The jury has spoken accept it and move on." Now you some of the same people saying "How do we know he did it?" For you I say "The jury has spoken accept it and move on."

    September 20, 2011 at 5:04 pm | Report abuse |
    • Jean Sartre, WI

      She was not sentenced to be MURDERED, you fool!

      September 20, 2011 at 5:58 pm | Report abuse |
  9. Nojabo

    Yawn. Another manufactured controversy by people with an anti-death penalty agenda. This has been looked at over and over and over. The only people who don't believe he's guilty are those who don't want to believe it and wouldn't believe it if the murder was captured on videotape. Jimmy Carter and Desmond Tutu and the ACLU are against it? Wow, what a shock.

    September 20, 2011 at 5:10 pm | Report abuse |
  10. Karen

    I don't know whether Troy Davis is guilty or not. What I do know is that he was convicted entirely on the eyewitness testimony of nine people–seven of whom have since recanted their testimony, most claiming they were coerced by the police into saying that Davis had shot McPhail. Worse, three new witnesses have since reported that another man had admitted to shooting McPhail. Again, I don't know whether he is guilty–but in light of the lack of any physical evidence combined with the recantation of almost all eyewitness testimony, it seems reasonable to call for a new trial. And, the odds of a potentially innocent man being executed for this particular seems too high and that is what turns my stomach.

    September 20, 2011 at 5:11 pm | Report abuse |
    • af090391

      Food for thought, if people were willing to lie under oath in court, what makes you think that they are believable now? Do you not think there are other anti-death penalty organizations who receive immense funding for cases like these who could be just as coercive? Especially since the police have never had a history of using coercion and had enough evidence prior to having the witnesses who have recanted their testimony? You can't use a proven liars testimony about crimes done by a police officer.

      September 20, 2011 at 5:46 pm | Report abuse |
  11. Jeff Frank ( R - Ohio ) "Right Wing Insanity"

    Here we go again with the mud slingin' leftists. The next time random violence strikes someone's home, and a loved one gets killed by some drug crazed idiot. Don't come on here whinning they should get rid of the death penalty, or why does the right insist it's O.K. to have guns. Or why do conservatives do this or do that? Just get out of the road. It's really O.K. though to be a liberal...it's easier than work.

    September 20, 2011 at 5:15 pm | Report abuse |
    • carrickbender5150

      Oh give me a break! I'm a gun toting, meat eating, commercial fishing liberal from Alaska who does more in a week than you do in a month. This isn't about that! " retribution is mine says the lord" is what is really at stake here. And if we truely believe in God, and are a Christian nation, we do not and will not practice "blood atonement" as was practiced in the old testament. All grief and wailing were washed away one and for all at golgatha. So to murder another man in retribution for the death of another, when his guilt is in question isn't just unacceptable; its an abomination. Peace and justice be with you.

      September 20, 2011 at 5:49 pm | Report abuse |
    • Jean Sartre, WI

      Dear Jeff,

      Please feel fre to insert your politics into any blog you see fit to babble in... this is a crimial justice issue; not a left, right or death penalty issue!

      But then, how woud you possibly know that?

      September 20, 2011 at 6:04 pm | Report abuse |
  12. Jeff

    There's too much doubt. I think the burden of proof for capital punishment cases should be higher than "reasonable doubt". It should be "beyond virtually all doubt".

    September 20, 2011 at 5:28 pm | Report abuse |
  13. Bo

    Wow, you are a real tough guy, being anonymous on the internet brings out the real tough guy in you. Your threats are as empty as your head. It is a shame though, considering that this post has to do with forgiving, or giving someone the benifit of a new trial. Way to go CORRECTION

    September 20, 2011 at 5:29 pm | Report abuse |
  14. Jean Sartre

    Did someone forget that this is the mighty UNITED STATES OF AMERICA?

    Bob Barr supports the Death Penalty so it must be as good as ham hocks and corn bread for all the great folks in Georgia... that's why the state wants, indeed demands, that Troy Davis PROVE HIS INNOCENCE, before they will grant him clemency or a new trial!

    Only in AMERICA!

    Look, folks, this is really fairly simple: a police officer – we worship these folks in America – was killed; officer MacPhail's mommy thinks this murder of Davis will bring her peace, besides, Davis is very tanned, so he must have committed the crime otherwise he would have PROVED HIS INNOCENCE!

    Finally, when a police officer is killed, someone has to die; it matters little IF it is the RIGHT PERSON or NOT; someone simply has to die... an example to all you would be police officer killers out and about…

    Damn, I LOVE THIS COUNTRY!

    September 20, 2011 at 5:38 pm | Report abuse |
  15. crmamx

    Doesn't matter whether he is guilty or not. Based on his violent history and the fact he would do it again he needs to be fried. That will end it all.

    September 20, 2011 at 5:47 pm | Report abuse |
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