Anneliese MacPhail, the mother of slain police officer Mark MacPhail, got a call from the state attorney general's office at her Columbus home at 10:18 p.m. saying a Supreme Court representative has said the high court has denied Troy Davis' appeal and his execution will proceed.
News the court would review the case earlier caused an upswell in enthusiasm among those who came to Georgia's death-row prison to oppose the execution. Their cheering followed tense moments during which at least three protesters across the street from Georgia's death-row prison got arrested as the crowd there grew unruly.
After that, about 30 corrections officers in riot gear deployed in front of the prison gate. More have arrived to reinforce that contingent.
The law enforcement presence since has swelled even more, as a convoy of Georgia state patrol cruisers, lights flashing and sirens blaring, pulled up on the north side of Georgia Highway 36 to seal off access to the prison. In the media area just across the fence, a prison representative told reporters they had five minutes to decide whether to stay in the secured area or leave. If they left, they would not be allowed back in.
Hundreds have massed in a restricted area on the south side of the highway. Black-clad officers in helmets and body armor, armed with batons and other riot gear, are arrayed across the entrance, as if expecting a charge. More stand with plastic wrist restraints, prepared to make arrests.
The atmosphere has grown increasingly tense as Davis' final appeals ran out.
A Superior Court judge and the Georgia Supreme Court refused this afternoon to stay the execution. Judge Thomas H. Wilson of Butts County Superior Court denied the motion about 4 p.m. this afternoon, according to court officials.
The state Supreme Court unanimously denied a stay of execution shortly after Wilson's ruling.
Davis declined to record a final statement, according to a Department of Corrections official, and he also rejected his last meal.
The DOC this morning blocked a polygraph request by Davis' attorneys, who sought the test as a last-ditch means of proving his innocence as his execution hour nears.
"We’re very disappointed that under the circumstances they wouldn’t make that happen," said Stephen Marsh, one of Davis' defense attorneys.
The state Board of Pardons and Paroles, meanwhile, said it would not reconsider Davis' request for clemency. The board on Tuesday rejected Davis' request he be spared the lethal injection, leaving him with increasingly slim odds of stopping his impending execution.
Davis' legal team was scrambling to come up with another last-ditch means of staying the execution. But legal experts said he had few options at the eleventh hour. Davis, convicted in the 1989 slaying of MacPhail, a Savannah, Ga., police officer and Columbus High graduate, is scheduled to be put to death at 7 p.m. today in Jackson, Ga.
Davis’ legal team could seek an emergency stay from the U.S. Supreme Court, but they would have to come up with a legal basis separate from the appeal the high court rejected earlier this year, said Russell D. Covey, an associate professor of law at Georgia State University. “It’s not immediately obvious to me what those legal grounds would be,” he said.
Richard Dieter, executive director of the Death Penalty Information Center, said a “major game changer” would be needed to stay the execution at this point.
“In order to change a legal ruling, you have to have new evidence or a new argument that hasn’t been raised before and that you couldn’t raise before,” Dieter said. “Unless there’s some new evidence, I think they’ll have a very hard time of winning.”
The long odds have done little to diminish the international uproar Davis’ case has generated. Scores of people have protested the execution at field near the Georgia Diagnostic and Classification Prison here. Laura Moye, head of Amnesty International’s Death Penalty Abolition Campaign, said her organization asked the pardons board to reconsider its decision “so that Georgia is not poised to make an unthinkable mistake.”
“We are asking the district attorney in Chatham County to request that the judge vacate the execution warrant,” Moye said. “It can absolutely be stopped, and we are not accepting this decision.”
The National Association for the Advancement of Colored People was said to be considering calling on President Barack Obama to weigh in and halt the execution. Dieter said the president may ask the Justice Department to look into a federal issue in the case, if one existed, but he said such a move would be unlikely and “very, very unusual.”
“It’s not like the president can say he doesn’t like what the parole board decided,” Dieter said.
Davis previously has been scheduled for execution three times. One stay was issued just hours before he was to receive the needle. The pardons board’s decision came one day after Davis’ attorneys offered about three hours of testimony in which they sought to cast doubt on Davis’ guilt in the case, pointing to a number of recent witness recantations and new testimony they said pointed to another shooter.
The board’s hearing in Atlanta was not open to the public, and the five members offered little elaboration on their decision.
“The Board members have not taken their responsibility lightly and certainly understand the emotions attached to a death penalty case,” the board said in a statement. “In considering clemency in such cases, the Board weighs each case on its own merit. The board has considered the totality of the information presented in this case and thoroughly deliberated on it, after which the decision was to deny clemency.”
The MacPhail family breathed a long sigh of relief as they awoke to the news Tuesday morning. They have unswervingly maintained that Davis fired the shots that killed Mark MacPhail, who as an off-duty offer was killed as he sought to help a homeless man being assaulted in a Burger King parking lot.
“I just really felt they made the correct decision,” said MacPhail’s widow, Joan MacPhail, who received word by phone at 8:17 a.m. “I’m hoping that this is the end for our family. We want to believe so desperately that this is it.”
The pardons board rarely grants requests for clemency, and has not done so since May 2008, when confessed killer Samuel David Crowe was spared just hours before his execution.
Davis’ claims of innocence led to several years of appeals and earned him the support of several prominent figures. The case also reached the U.S. Supreme Court, which in 2009 ordered a rare evidentiary hearing. The high-court since has denied another appeal from Davis.
The board’s decision seemed certain to ignite further protests from groups that claim there is too much doubt in Davis’ case for him to be executed.
Amnesty International planned to protest the decision Tuesday evening on the steps of the state capitol. A large contingency of supporters are expected to descend on Jackson today to hold vigil and protest the execution.
“We are shocked and we are saddened and we cannot believe that the Board of Pardons and Paroles has not intervened to stop the execution of Troy Davis given that there is an enormous cloud of doubt hanging over the guilt,” said Moye, head of Amnesty International’s Death Penalty Abolition Campaign.
Davis attorney Stephen Marsh on Monday told reporters he was confident the legal team established “substantial doubt in this case,” adding “an execution is simply not appropriate.”
The MacPhail family, meanwhile, welcomed the board’s decision. They said there is no doubt in their mind the right man is on death row.
“We still have that little anxiousness, that little nervousness,” Joan MacPhail said. “I’m sure that their lawyers are probably going to try to do some last-ditch effort.”
She said the family planned to take time to relax Tuesday after an emotional roller coaster the past week.
“I’m hoping that it’s all going to be over with,” said Anneliese MacPhail, Mark MacPhail’s mother, a Columbus woman who heard the news from her daughter-in-law as soon as soon as she woke up Tuesday morning. “I hope this is it. I’m really going to be satisfied when it’s done.”
Anneliese MacPhail said she was cautiously hopeful the board’s decision would allow her to “close the book.” But having been to this stage before, only to experience further delays, she said she had tempered her expectations.
“I’m going to be convinced when it’s over,” she said.