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Convicted cop killer gets reprieve

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POSTED: August 1, 2007 5:03 a.m.

ATLANTA ‑ For Troy Davis, the up to 90-day stay of execution he was granted on the eve of what would have been his last day alive offered more time for him to prove his innocence.

But for the widow of the police officer Davis was convicted of killing, the stay continued the roller-coaster of emotions she's been going through for nearly 18 years.

The state Board of Pardons and Paroles on Monday granted the stay to Davis, who had faced a Tuesday execution date. The board took less than an hour to make its decision, following nearly nine hours of closed-door testimony from Davis' defenders and those who wanted to see him given a lethal injection as scheduled.

The stay means Davis' execution for the Aug. 19, 1989, murder of Savannah police Officer Mark MacPhail will be on hold while the board weighs the evidence presented as part of Davis' request for clemency. It must issue a decision by Oct. 14, but if it denies clemency before then it could lift the stay, a spokeswoman said.

"We are no longer under the gun and we can present the rest of our innocence case," Davis lawyer Jason Ewart said after the board's decision.

But the officer's widow, Joan MacPhail, said in an interview that she was disappointed by the decision.

"I believe they are setting a precedent for all criminals that it is perfectly fine to kill a cop and get away with it," she said.

Before the decision, Ewart said he was glad the board "engaged the facts, and without respect to the media or anything else."

Among the people who argued for clemency for Davis during Monday's parole board hearing were friends, family and U.S. Rep. John Lewis, an Atlanta Democrat and civil rights icon. Five witnesses who testified at trial spoke to the board on Davis' behalf, Ewart said.

Among those present for the state at the parole board's offices were the victim's widow, mother and the district attorney for Chatham County. They have argued that Davis received a fair trial and has had plenty of appeals, all of which have failed.

"I believe police did their job correctly and found the right man," the slain officer's son, Mark MacPhail Jr., told reporters after his family addressed the board in private.

The younger MacPhail said he told the board what it was like to grow up without a father. The son, now 18, was less than 2 months old when his father was killed.

A jury convicted Davis, now 38, for the murder of the elder MacPhail, 27, who was shot twice after he rushed to help a homeless man who had been assaulted.

The shooting took place in a Burger King parking lot next to the bus station where MacPhail worked off-duty as a security guard.

Davis' lawyers said seven of nine witnesses who testified at his trial that they either saw Davis shoot the officer, saw him assault the homeless man before the shooting or heard Davis later confess to the killing have since recanted or contradicted their testimony.

But Joan MacPhail said police arrested the right man and she was saddened by the parole board's decision to grant a stay.

"By making us wait, it's another sock in the stomach," she said. "It's tearing us up."

Also Monday, Davis' lawyers filed an appeal with the state Supreme Court of an earlier decision by a Chatham County judge to deny a stay of Davis' execution. A decision on that request was pending, and it wasn't clear whether the parole board decision would make the high court decision moot.

Besides the affidavits of recanting witnesses, Davis' lawyers noted that other affidavits from three people who did not testify at Davis' trial say another man, Sylvester Coles, confessed to killing the officer after Davis was convicted. After the shooting, Coles identified Davis as the killer.

Prosecutors argued that most of the witness affidavits, signed between 1996 and 2003, were included in Davis' previous appeals and should not be considered new evidence.

Davis' lawyers said they have been hindered over the years at getting courts to consider their new evidence because of restraints in the law.

In particular, they have complained about the Anti-terrorism and Effective Death Penalty Act, a 1996 law that limits the circumstances under which federal judges may grant habeas corpus petitions in state court cases. Congress passed the law to limit the seemingly endless legal wrangling that typically precedes executions.

The Associated Press has been unable to locate Coles for comment, and Ewart has declined to say if he knows Coles' whereabouts. Coles was not at the parole board hearing Monday.

Davis testified at trial that he was present at the scene of the officer's shooting, but denied being involved.
 

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