Ohio State Journal of Criminal Law

OSJCL Amici Board of Advisors

OSJCL Amici: Views from the Field

NEW ARTICLE: Advocacy Before the Courtroom: The Life of an Associate in a White Collar Criminal Defense Practice

Jocelyn Kelly graduated from Moritz in 2008 and currently works in the Trial Practice and Corporate Criminal Investigations groups at Jones Day's Cleveland office. Her work in these groups focuses on corporate internal investigations and the defense of government investigations.

She wrote an article about the often overlooked field of white collar criminal defense practice because "federal, state, and local governments have continuously increased the attention and resources devoted to investigating and prosecuting white collar crime" and she believes that "this is an important and interesting area for young lawyers."

Click here to view Jocelyn Kelly's article


The Case

On August 19, 1989, while he was working as an off-duty security guard at a Savannah, GA Burger King, Officer Mark MacPhail attempted to break up a fight between a neighborhood thug, Sylvester "Redd" Coles, and a homeless man. As he responded to calls for police assistance, he was shot twice and died on the scene. Troy Davis admitted to being a bystander to the fight, and subsequent shooting, but denied any part in MacPhail's murder. However, he was implicated as the shooter by Coles. Davis turned himself in after learning that the police were looking for him as a suspect in the shooting. A jury trial was held and Davis was convicted based on eyewitness testimony. He was sentenced to death on August 30, 1991, and the Georgia Supreme Court ultimately affirmed a lower court's denial of habeas relief on November 13, 2000.

In 2001, Davis' attorneys obtained recantations from seven of the nine eyewitnesses who testified against him at his original trial as well as newly discovered eyewitnesses who pointed to Coles as the shooter. Davis submitted this new evidence to a federal district court in Georgia which denied his habeas request citing procedural bars. Davis appealed to the 11th Circuit Court arguing that he was entitled to a retrial based on his actual innocence claim and various constitutional violations in his trial.

The 11th Circuit affirmed the denial of federal habeas corpus relief, claiming that all his innocence claims were "procedurally defaulted" and that Davis had not shown that his trial was constitutionally unfair. One of the main reasons the judges could not grant Davis a new trial was the Antiterrorism and Effective Death Penalty Act of 1996 restricted federal court authority to disrupt state verdicts. Davis appealed to the Supreme Court but was denied certiorari on June 25, 2007.Davis was scheduled to be executed on July 17, 2007, but on July 16 the Georgia State Board of Pardons and Paroles granted a ninety-day stay of execution. The Georgia Supreme Court also agreed to hear Davis' discretionary appeal from his Extraordinary Motion for a New Trial. Despite finally hearing the exculpatory evidence offered by Davis, the court denied the appeal by a 4-3 vote, with the majority writing that the recanted testimony, "lack the type of materiality required to support an extraordinary motion for new trial, as they do not show the witnesses’ trial testimony to have been the 'purest fabrication.'"

On July 14, 2008, Davis again filed a petition for a writ of certiorari in the U.S. Supreme Court, appealing the Georgia Supreme Court's decision. He asked the Court to overrule that decision and determine that the Eighth Amendment creates a substantive right of the innocent not to be executed. Davis' petition was denied and his execution was set for October 27, 2008.

Despite pleas for clemency from Archbishop Desmond Tutu, former Republican congressman Bob Barr, Amnesty International, Pope Benedict XVI, and the European Parliament, on September 12, 2008 the Georgia Board of Pardons and Paroles denied Davis' request for clemency. Former President Jimmy Carter and the National Lawyers' Guild both joined the protest against Davis' execution after this denial.

Davis filed a second federal habeas petition and requested an emergency stay of execution. The 11th Circuit granted the stay of execution and set December 9, 2008 as the date for oral argument on the habeas request. A little over four months later, on April 16, 2009, the court denied Davis' petition. The court stated that, "Davis has not presented us with a showing of innocence so compelling that we would be obligated to act today." It also focused on two procedural requirements contained in the Antiterrorism and Effective Death Penalty Act which must be met in order to consider an innocence claim. According to the court's interpretation, Davis failed to meet either of these procedural requirements and therefore the court rejected habeas relief. The court of appeals did, however, grant a stay of execution to allow Davis to file a habeas petition with the Supreme Court.

In an unusual decision, on August 17, 2009 the Supreme Court ordered a federal district court in Georgia to consider and rule on Davis' claim of innocence. The Court directed the district court to “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis'] innocence.” The decision was unusual because original writs of habeas corpus filed in the Supreme Court are very rarely granted.

On August 27, 2009 a U.S. district court gave Georgia's attorney general until October 10 to file a written response to an appeal by Davis' lawyers. The case will likely be heard in late November.

Our Mission

This site will attempt to compile news stories, articles, and opinion pieces dealing with the Troy Davis case. The focus will be mostly on the Supreme Court's decision and any events that take place subsequent to that. However, there will be some pieces that provide background into the case from its beginning in the streets of Savannah to its long trip through the Georgia legal system. Feel free to post any updates, opinions, or anything else concerning the Troy Davis case.


"As Execution Nears, Last Push From Inmate's Supporters"
NY Times
The Supreme Court's decision

In the News

"Troy Davis Ruling Raises New Death-Penalty Questions" TIME
"Justices Tell Federal Court to Step Into Death Row Case"
NY Times
"Case of death row inmate Troy Davis puts new D.A. in tight spot"
LA Times
"Saving Troy Davis"
The Nation
"For Now, High Court Punts on Troy Davis, on Death Row for 18 Years" The Wall Street Journal's Law Blog
"U.S. Supreme Court orders new hearing for Troy Davis" The Atlanta Journal-Constitution
"Searching For Justice In The Troy Davis Case" NPR
"When It Comes to Claims of Actual Innocence, Courts Need to Consider Recantations" The Huffington Post
"Troy Davis, A Man Without a Voice, Speaks for Too Many" The Huffington Post
"Justices grant Georgia inmate's request to delay execution" CNN.com
"Hearing on innocence claim ordered" SCOTUSblog.com

"Hearing on the Impact of Federal Habeas Corpus Limitations on Death Penalty Appeals" U.S. House of Representatives Committee on the Judiciary (Webcast)
"Troy Davis Case Raising Novel Legal Issues" Atlanta Journal-Constitution
"Judge Sets Deadlines in Troy Davis Case" WRCB Chattanooga


"I Am Troy" The National Association for the Advancement of Colored People

"Troy Davis: Finality Over Fairness" Amnesty International USA
"European Parliament Resolution"

*Here is an interesting article on the recent finding of innocence for a North Carolina man based on a recommendation from the North Carolina Innocence Inquiry Commission.

"Gregory Taylor Freed on Urging of North Carolina Panel" NY Times

The Economics of the Death Penalty

While we work on creating a new format for the site, we are pleased to bring you our next topic of discussion for the Practitioner's Commentary. The economics of the death penalty is a subject of much discussion in the criminal law community these days. The debate surrounding the current system of capital punishment in our country is multi-faceted. While the economic efficiency of this system is only one part of the debate, it is nonetheless an important part. Many studies have been undertaken to determine the amount the death penalty actually costs, and those on both sides of the capital punishment debate use these statistics in support of their arguments. The cost of capital punishment raises important questions on the effectiveness, efficiency, sustainability, and values of our current criminal justice system. With that being said, we are pleased to bring you articles from two well-respected members of the criminal law community on this important topic. As always, we invite (and encourage) anyone who reads these articles to leave comments. This site is intended to provide thought-provoking commentary and insight from those involved in the field of criminal law. Please help us by leaving a comment, even if it is just to give your opinion on the subject. Thank you.

*Bruce T. Cunningham has practiced criminal defense in Southern Pines, North Carolina for 36 years. He has extensive experience in capital cases at the trial, appellate, and post-conviction levels. He graduated from the University of North Carolina in 1970 and the University of Virginia Law School in 1973. He has previously served as the North Carolina legal advisor to Families Against Mandatory Minimums and frequently lectures on capital litigation and Apprendi issues.
Click here to view Bruce T. Cunningham's article

*J. Richard Broughton is a visiting professor of law at the University of Detroit Mercy School of Law. He has also taught courses at the law schools of Wayne State University, Stetson University, and Texas Wesleyan University. From 2005 to 2008, Professor Broughton served in the Criminal Division of the United States Department of Justice in Washington, D.C. where he advised senior Justice Department leaders and federal prosecutors on issues of criminal and constitutional law arising in federal death penalty matters and assisted in federal capital prosecutions, appeals, and post-conviction litigation. He also has served as Assistant Attorney General of Texas for Capital and Post-conviction Litigation, as a law clerk to the chief judge of the Texas Court of Criminal Appeals, and as a law clerk for the House Judiciary Committee during the 106th Congress.
Click here to view J. Richard Broughton's Article