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. crusader12

    Sucks to be a black man in the land of fascism. Sucks to be Arab too...come to think of it if you're not white...

    September 20, 2011 at 5:55 pm | Report abuse |
  2. tony

    There is no hope for justice enlightened in this case. When the appeals board listened to the "lust for blood" pleas of the victim's family, you somehow knew it was all over.

    September 20, 2011 at 6:00 pm | Report abuse |
    • Michael N

      What you are ignoring is the fact that justice was done at the initial trial and conviction. At this point in time you need to prove that something occurred in that trial which would put the conviction and sentence in doubt. From all that I have read on the case, nothing has been presented to overturn either. If it were the case, this would have been done in 2010 instead of now.

      September 20, 2011 at 9:00 pm | Report abuse |
    • tony

      My point was that the appeal case judge (and board) were not going to write any new law when it came to eye witness trial.

      September 20, 2011 at 9:24 pm | Report abuse |
  3. Death Penalty Lover

    Just get it over with....he really wants to keep living in prison? He will be in Heaven soon!! God forgives everyone that asks....amen.

    September 20, 2011 at 6:05 pm | Report abuse |
    • T. Jensen

      So he should be executed without evidence? you're kind of sick. That's sick... as in socioapthic. Get help.

      September 20, 2011 at 8:46 pm | Report abuse |
    • T. Jensen

      Big tough talk... you think there should be an execution with or without evidence? That's rather psychopathic. I notice also, that like most bullies. you don't have the GUTS to post under your own name. Can't be too confident in what you say if you can't say it in the open, can you, you internet tough guy???

      September 20, 2011 at 8:49 pm | Report abuse |
  4. TJeff1776

    Because murder cases are nearly always so controversial, especially interracial, I believe those so convicted should
    have a special unit enter from FAR outside the general area and take about six months to sift through all evidence and
    render an opinion to that State's Governor. After one(1) year, either execute, reduce the sentence, OR set the convict
    free. This thing of lingering for twenty or more years is a massive joke. Justice delayed is justice denied. Besides, the expenses of endless appeals are enormous. The Old Testiment God put'em to death by the thousands. Jesus, of New Testiment vintage, certainly didn't denounce the death penalty, as such, notwithstanding He innocently suffered the same. Now watch the religious fanatics tear this paragraph to pieces- then tear the pieces to pieces.

    September 20, 2011 at 6:15 pm | Report abuse |
    • paulronco

      >> Jesus, of New Testiment vintage, certainly didn't denounce the death penalty.

      Really? Not according to John 8:1-11, which is a clear denunciation of the death penalty.

      September 20, 2011 at 10:55 pm | Report abuse |
  5. abe qaiyim


    September 20, 2011 at 6:16 pm | Report abuse |
  6. George


    September 20, 2011 at 6:34 pm | Report abuse |
  7. George


    September 20, 2011 at 6:35 pm | Report abuse |
  8. Simp

    What kind of nation are we becoming if we execute a humane being with no conclusive evidance? My question to the family of the victim who wants justice served, would the soul of the late officer rest in peace if an innocent man is killed for his death? What is the moral implication for the suprime court judges when they allow this to happen.

    September 20, 2011 at 7:26 pm | Report abuse |
  9. morticiaa1979

    Normally, I would not get annoyed by comments, BUT the real victim that has paid the ultimate price was Officer MacPhail. People seem to forget that he was helping others, by serving his community. He did not ask to be shot and leave 2 orphan children. Leave the race card out of it. It does not matter. I am still waiting for NC to hurry up with the DP there to rid society of wasted space Atkins....

    September 20, 2011 at 7:50 pm | Report abuse |
  10. Outraged

    Let's see if the president or the governor have the courage to stop the madness by pardoning this man! It would be at their political peril, so it probably won't happen ... but it would be the right thing to do.

    September 20, 2011 at 7:51 pm | Report abuse |
  11. bigwilliestyles

    Recently a man was beaten to death by police officers in Fullerton, CA. Witnesses described it as a brutal, one sided beating of an innocent man by police officers. The district attorney involved in the case called it "a violent struggle between the victim and the police". What the evidence (including witnesses) and what the state is willing to present as evidence, is proof of the possibility of systemic corruption. That is for those who keep saying "the system found Davis guilty, so he must be guilty".

    September 20, 2011 at 7:58 pm | Report abuse |
  12. clint bogart

    the Judge is an ASS and I HOLD HIM IN CONTEMPT.
    No respect.

    September 20, 2011 at 8:04 pm | Report abuse |
    • Todd N

      I think you way over estimate the impact of your humble opinion.

      September 20, 2011 at 8:47 pm | Report abuse |
  13. T. Jensen

    I am pro death penalty. This, however, is nothing more than state sanctioned MURDER. I hope Georgia is proud- they've just proven every inbred redneck story about themselves to be true. Sad, sick, heartless murderers.

    September 20, 2011 at 8:41 pm | Report abuse |
  14. Xtina

    >>So he should be executed without evidence?<<

    Nooo. But perhaps he should be executed using the "compelling" forensic evidence found on shorts removed from his mother's home. You don't hear much about those, do you? They were excluded, not because they didn't support the case but because his mother claimed she didn't want to give permission for a search, and a warrant wasn't issued. And having someone decide they want to change their story down the line isn't terribly compelling either. Neither is the defense claim that the jury found this black man guilty because they were overwhelmingly white, and by "overwhelmingly" they mean there were seven blacks and five whites on the jury.

    The system does, in fact, work and as the mother of two law enforcement professionals, I'm eternally grateful for that fact.

    September 20, 2011 at 9:17 pm | Report abuse |
  15. Xtina

    >>the Judge is an ASS and I HOLD HIM IN CONTEMPT. No respect.<<

    One suspects the judge can probably live with that. @@

    September 20, 2011 at 9:19 pm | Report abuse |
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