High Court Won't Hear Death Row Appeal

Washington Post Staff Writers
Wednesday, October 15, 2008; Page A15

The Supreme Court yesterday refused to hear an appeal by a Georgia man facing execution for the 1989 murder of a police officer, declining to decide whether the death penalty should be ruled out for a defendant who presents strong evidence of innocence.

The order clears the way for Georgia to proceed with the execution of Troy Anthony Davis, 40. It was issued three weeks after the high court granted him a stay with less than two hours to spare.

In refusing to hear a full appeal, the court maintained the high bar it has set for assertions of innocence after convictions in capital cases. Georgia now can set a new date for Davis's execution, because the court's stay expired with yesterday's order.

In a separate case, a convicted double murderer in Ohio who had said he was too obese to be executed humanely was put to death yesterday after the Supreme Court turned aside his latest appeal.

Richard Cooey, 41, who stood 5 feet 7 inches tall and weighed 267 pounds, was cleared to receive a lethal injection when prison staff members examined him and found accessible veins in both arms. He was convicted of sexually assaulting and killing two University of Akron students in 1986. The Supreme Court on Monday denied an appeal based on his assertion that he could not be put to death in a humane way because his obesity made it too difficult to find his veins. Yesterday, the court refused to hear a second appeal alleging that Ohio's three-drug lethal injection protocol could cause an agonizing death and should be replaced with a single drug.

Cooey was executed by lethal injection at a prison in Lucasville, Ohio, without difficulty, state authorities said.

In the Georgia case, the state's Supreme Court has twice refused to grant Davis a new trial, and the State Board of Pardons and Paroles rejected his request for clemency again last month despite pleas from a number of dignitaries.

The 1991 death sentence against Davis came under scrutiny after seven of nine witnesses who helped convict him recanted their testimony or changed their statements. Several told of being pressured by police to tell them what they wanted to hear. Three other people have said a man who identified Davis as the killer had confessed to being the triggerman.

The case has become a cause celebre for death penalty opponents, including the human rights group Amnesty International, which has launched a campaign on Davis's behalf. Among others, Pope Benedict XVI, South African Archbishop Desmond Tutu, former president Jimmy Carter and the Council of Europe have urged Georgia authorities to spare Davis's life. Even some supporters of the death penalty, notably former FBI director William S. Sessions and former congressman Robert L. Barr Jr. (R-Ga.), have called for a reexamination of the case.

However, relatives and supporters of the victim, off-duty Savannah police officer Mark Allen MacPhail, insist that police got the right man when they charged Davis with murdering MacPhail in the early hours of Aug. 19, 1989, when MacPhail tried to stop Davis and two friends from brutally beating a homeless man in a fast-food restaurant parking lot.

Amnesty International said yesterday that it was "truly shocking" that the Supreme Court has effectively ruled out the presentation of new evidence favoring Davis.

"Faulty eyewitness identification is the leading cause of wrongful convictions, and the hallmark of Davis's case," said Larry Cox, executive director of Amnesty International USA.

The condemned man's sister, Martina Correia, also denounced the Supreme Court's action. "The Supreme Court doesn't know everything," she said. "They make mistakes, too, and that's what we're trying to avoid here, a mistake that you can't take back."

But MacPhail's sister, Kathy McQuary, said her family believes Davis should be executed. "I'm just ecstatic that after 19 years, this is finally going to be over and we can have peace in our family; we can have closure," she said. "My brother was a police officer. That's why we are so adamant about the death penalty. They do risk their lives."

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