Equal Justice Under Law: The Oath Sworn By Officer Mark Allen MacPhail
On August 19, 1989, Savannah Police Officer Mark Allen MacPhail came to the aid of a homeless man. He did so for a reason. It was not a photo opportunity, nor was it an event organized by community groups to help those in need. Officer MacPhail came to the aid of Larry Young because he took an oath to serve and protect. He had the physical ability to turn a blind eye and walk away, but his heart and his moral compass compelled him to act. Larry Young deserved equal protection of the law. A few moments later, Officer MacPhail was dead.
Much has been made of the claims of innocence made by Troy Anthony Davis, the individual charged and convicted of killing Officer Mark Allen MacPhail. Over twenty years later, we are approaching another scheduled execution of Troy Anthony Davis. On Monday, September 19, 2011, the Georgia State Board of Pardons and Parole will again consider a clemency petition from Troy Anthony Davis. It is important to note the statements and opinions of the judges who have heard Troy Davis’ petitions and appeals over the past two decades.
When Troy Davis petitioned the United States Supreme Court for a hearing that would provide an opportunity for him present evidence of his innocence, the Court granted his request on August 17, 2009. The USSC sent the matter to the United States Federal District Court for the Southern District of Georgia in Savannah. On August 24, 2010, Federal District Court Judge William Moore issued a ruling.
Although the USSC sent the case to Judge Moore for a hearing, Justice Antonin Scalia dissented to this decision. In his dissent, he included a procedural history of this case including the number of courts and administrative reviews afforded Troy Anthony Davis and the truth about the “new evidence” Troy Anthony Davis claimed would prove his innocence. His summary and comments are as follows:
“Eighteen years ago, after a trial untainted by constitutional defect, a unanimous jury found petitioner Troy Anthony Davis guilty of the murder of Mark Allen MacPhail. The evidence showed that MacPhail, an off-duty police officer, was shot multiple times after responding to the beating of a homeless man in a restaurant parking lot. [Citation omitted] Davis admits that he was present during the beating of the homeless man, but he maintains that it was one of his companions who shot Officer MacPhail. It is this claim of “actual innocence”-the same defense Davis raised at trial but now allegedly supported by new corroborating affidavits-that Davis raises as grounds for relief. And (presumably) it is this claim that the Court wants the District Court to adjudicate once the petition is transferred.
“[T]he allegedly new evidence we shunt off to be examined by the District Court has already been considered (and rejected) multiple times. Davis’s postconviction “actual-innocence” claim is not new. Most of the evidence on which it is based is almost a decade old. A State Supreme Court, a State Board of Pardons and Paroles, and a Federal Court of Appeals have all considered the evidence Davis now presents and found it lacking. (I do not rely upon the similar conclusion of the Georgia trial court, since unlike the others that court relied substantially upon Georgia evidentiary rules rather than the unpersuasiveness of the evidence Davis brought forward. [Citation omitted]
The Georgia Supreme Court “look[ed] beyond bare legal principles that might otherwise be controlling to the core question of whether a jury presented with Davis’s allegedly-new testimony would probably find him not guilty or give him a sentence other than death.” [Citation omitted] After analyzing each of Davis’s proffered affidavits and comparing them with the evidence adduced at trial, it concluded that it was not probable that they would produce a different result. [Citation omitted]
When Davis sought clemency before the Georgia Board of Pardons and Paroles, that tribunal stayed his execution and “spent more than a year studying and considering [his] case.” [Citation omitted] It “gave Davis’ attorneys an opportunity to present every witness they desired to support their allegation that there is doubt as to Davis’ guilt”; it “heard each of these witnesses and questioned them closely.” [Citation omitted] It “studied the voluminous trial transcript, the police investigation report and the initial statements of the witnesses,” and “had certain physical evidence retested and Davis interviewed.” [Citation omitted] “After an exhaustive review of all available information regarding the Troy Davis case and after considering all possible reasons for granting clemency, the Board … determined that clemency is not warranted.” [Citation omitted]
After reviewing the record, the Eleventh Circuit came to a conclusion “wholly consonant with the repeated conclusions of the state courts and the State Board of Pardons and Paroles.” [Citation omitted] “When we view all of this evidence as a whole, we cannot honestly say that Davis can establish by clear and convincing evidence that a jury would not have found him guilty of Officer MacPhail’s murder.” [Citation omitted]
Today, without explanation and without any meaningful guidance, this Court sends the District Court for the Southern District of Georgia on a fool’s errand. That court is directed to consider evidence of actual innocence which has been reviewed and rejected at least three times, and which, even if adequate to persuade the District Court, cannot (as far as anyone knows) form the basis for any relief. I truly do not see how the District Court can discern what is expected of it. If this Court thinks it possible that capital convictions obtained in full compliance with law can never be final, but are always subject to being set aside by federal courts for the reason of “actual innocence,” it should set this case on our own docket so that we can (if necessary) resolve that question. Sending it to a district court that “might” be authorized to provide relief, but then again “might” be reversed if it did so, is not a sensible way to proceed.”
Judge Moore heard testimony after providing Troy Anthony Davis’ counsel months of preparation. He issued a ruling that includes this statement:
“Before the Court is Petitioner Troy Anthony Davis’s Petition for a Writ of Habeas Corpus. [Citation omitted] Pursuant to the order of the Supreme Court, this Court has held a hearing and now determines this petition. [Citation omitted] For the above stated reasons, this Court concludes that executing an innocent person would violate the Eighth Amendment of the United States Constitution. However, Mr. Davis is not innocent: the evidence produced at the hearing on the merits of Mr. Davis’s claim of actual innocence and a complete review of the record in this case does not require the reversal of the jury’s judgment that Troy Anthony Davis murdered City of Savannah Police Officer Mark Allen MacPhail on August 19, 1989. Accordingly, the petition is DENIED.”
When Officer MacPhail chose to act in accordance with his oath of office on August 19, 1989, he carried on his uniform and badge of office the authority of the law, the power of our courts and the commitment of his community. To walk away would have been to betray the trust placed in him. So Officer MacPhail placed his life in danger to intervene in an altercation to protect the rights and safety of a stranger. He took a risk that his family would lose him and that he would give his life in the performance of his duty. When Troy Anthony Davis shot and killed Officer MacPhail, he pointed a gun at the representations of law and order in our society and pulled the trigger on the principles upon which we stand.
Officer MacPhail lost his life that day, but the principles that drove him to protect a homeless stranger survived him. Those same principles afforded Troy Anthony Davis a trial, appeals and unprecedented reviews of the evidence against him. Troy Anthony Davis received due process and equal justice under law. The time has come to honor the principles upon which we stand and give Officer MacPhail the justice he deserves.