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Anderson Cooper 360 Degrees
Supreme Court Denies Death Row Appeal
Aired September 21, 2011 - 22:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ANDERSON COOPER, CNN ANCHOR: Good evening, everyone. It is 10:00 p.m. on the East Coast of the United States. I want to welcome our international viewers joining on CNNI.
We begin tonight with breaking news, a delay in the scheduled execution of Troy Davis. He was set to die by lethal injection three hours ago, at 7:00 p.m. Eastern time. It was put on hold as the U.S. Supreme Court considers a last-minute appeal. Three hours later, we are all still waiting to hear from the U.S. Supreme Court.
And in Jackson, Georgia, where the execution is on hold, a large crowd of peaceful protesters is holding vigil. There's also a heavy police presence outside the prison. You see both sides there, the police in the foreground, protesters in the back.
Here's some background now on this case. Davis was arrested in 1989 for the shooting death of an off-duty Savannah police officer named Mark MacPhail, a son, a husband, a father of two kids. He was providing security at a Burger King when a fight broke out in a parking lot. Officer MacPhail rushed to the scene to investigate and he was shot and killed.
Two years later, in 1991, Troy Davis was convicted for the murder based on eyewitness testimony. But since Davis' trial, seven of the nine witnesses against him either recanted or changed their testimony, raising doubts that have now gone global.
Joining us from the prison in Jackson, Georgia, outside -- or -- excuse me -- in Jackson, Georgia, outside the prison, David Mattingly, also with us, senior legal analyst Jeffrey Toobin.
Jeff, it's about now three hours. I remember shortly after this delay was announced, watching you say you felt the Supreme Court would rule in a matter of minutes. The fact that it has now been multiple hours, what do you make of it?
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: This is really shocking and astonishing.
This kind of last-minute application for a stay is fairly common. And almost always, the result is literally a one-sentence order from the Supreme Court which says the request for a stay is denied. And it is unanimous. That doesn't take very long for the justices to agree on, if they, in fact, agree. There are nine justices. You need five justices to grant a stay. You need a majority to grant a stay. Based on what I know about the justices' philosophies about the death penalty and given the history of this case, I find it very hard to believe that five justices will vote to grant a stay here.
But this long delay -- and it is unquestionably a long delay -- suggests that at least some justice, one justice, is writing something, a dissenting opinion, some sort of statement, because it doesn't take three hours to write one sentence, the stay is denied.
COOPER: Wouldn't a justice -- they have known this case was coming, they have known this was scheduled for today, they knew probably that a motion would get to them. Wouldn't they have pre-done that?
TOOBIN: Not necessarily, because though this is, of course, a very celebrated, notorious case, and they all knew the execution was scheduled for today, the actual request for a stay and the grounds for a stay, which included false testimony in a later proceeding, a request for a lie-detector test, that was not filed until this morning in the trial court in Georgia.
In late afternoon, the Supreme Court of Georgia rejected the application for a stay. So the United States Supreme Court only got the specific request for a stay at about 6:00 tonight. So, though they are familiar with the case, the justices didn't have the specific grounds and I think they could only start writing, if in fact they are writing, once they saw the paperwork on today's application.
COOPER: David Mattingly is outside the prison now.
David, describe the scene there now because we have been seeing increasing numbers of law enforcement officers arriving on the scene over the last several hours. Describe what you are seeing.
DAVID MATTINGLY, CNN CORRESPONDENT: Well, Anderson, when I last talked to you at 8:00, we were looking out here and watching police car, patrol car after patrol car arriving until we have here well over 100 uniformed officers, many of them in riot gear, taking a position right at the gates of the Georgia diagnostic prison where this execution is supposed to take place.
I have to tell you though in about the last half-hour, there has been a sense of calm descending upon this intersection here. The officers behind me are in position but they are at ease. And the demonstrators across the street that they keep watching have been almost silent. Occasionally in the last half-hour, you will hear someone singing.
I just heard them singing a song, "Lean on Me." Many of them are holding candles. It has become a very solemn moment, as if all the excitement that was generated when the officers arrived here and started massing here in front of the prison, that seems to have faded away.
And now everyone is concentrating on the issue at hand and that is the life or the death -- yes, go ahead.
(CROSSTALK)
COOPER: David, where is Troy Davis' family?
MATTINGLY: That's what we don't know for sure. Troy Davis does have the right to ask that certain people be in the room when he is executed to observe. We don't know who he requested to be in there. We don't know if there are family members in there. There are probably some out here milling with the crowd.
But we do know that there are members of the MacPhail family, from Officer MacPhail, that are inside the prison, waiting for this as well. And as we have been watching out here, everyone standing, seemingly getting a little bit weary as the hours go by, waiting for some word about what's going to happen, I think about those family members and loved ones who are inside the prison thinking that this has to have been probably the longest two to three hours of their lives.
COOPER: And, Jeff, do you believe that Troy Davis would still be in the execution chamber at this point?
TOOBIN: Well, you know, I was just e-mailing with one of his lawyers. I don't think -- I don't think they know for sure.
I mean, it is certainly possible that he is in a holding cell right next to the lethal injection chamber. But as I understand Georgia procedures, an hour before the execution was to begin, he is eligible to receive, if he decides to, a sedative to just calm him down.
That would be administered in -- through the I.V. on the gurney. So, I mean it is conceivable that he has been on the gurney, waiting now for three, even four hours, but it is also possible he is, you know, steps away. But, certainly, he is in a very small area that is the actual execution area of the prison.
COOPER: Jeff, I want to bring in B.J. Bernstein, an attorney who is familiar with the Georgia process.
B.J., where -- do we know where Troy Davis would be at this point? I mean, if this was stayed before -- and this was obviously stayed before the 7:00 time frame, where is he?
B.J. BERNSTEIN, ATTORNEY: Well, word is from folks that are down there that I'm hearing from is that he is in the jail and probably does have the I.V., because it makes sense. They do that about an hour before. They put the sedative -- give him the opportunity to have a sedative and have everything ready.
COOPER: So you think he is laying on the execution gurney with an I.V.?
BERNSTEIN: Either on the gurney or somewhere with an I.V. ready to go, unless they -- they may have detached it by now because so many hours have gone by, but the delay happened around 6:30, less than an hour before the 7:00 execution time, so clearly preparations had already been made at that point.
And so unless the jail decided to withdraw that and have the doctors take it out because of the lengthy period that's gone by now, that part is not confirmed.
COOPER: And, Jeff Toobin, in terms of what is going on, on the Supreme Court end, I mean, we talked about this in the 8:00 hour, they are not all together. They are spread out in different places. Are they talking on the phone? Are they talking via e-mail?
TOOBIN: Well, this is an established procedure that the court has. There is a group of people who work in the Supreme Court Clerk's Office who do nothing but death penalty cases, and they have procedures in place when an execution is upcoming, where they can reach all of the justices, either by phone or e-mail or both.
Oftentimes, the justices simply respond, you know, no stay, and it is a fairly simple procedure. But if there is disagreement on the court, if there is -- if there are some justices or even more or even close to a majority that want to stay, they can have phone calls with each other and it can get quite complicated, because after all there are nine of them.
It's -- you know, it all depends on how they respond to the specific case in front of them. But it can be complicated. It can take a while. And three hours after the scheduled time, that is very unusual.
COOPER: David, Jeff, B.J., just stick around. We're going to have more with you in a moment.
The family of the murdered police officer, Mark MacPhail, is convinced that Davis is guilty. I spoke earlier with the officer's mother, Anneliese MacPhail.
(BEGIN VIDEO CLIP)
COOPER: When you hear now that there is a delay, what is going through your mind?
ANNELIESE MACPHAIL, MOTHER OF MURDERED POLICE OFFICER: Anderson, I'm absolutely devastated because I want it over with. We find him guilty after the first trial. And all these -- these decisions they have made through the courts, they have been through the courts four times in Georgia through all the courts. they have been through the Supreme Courts three times. So this delay again is very upsetting. And I think really unfair to us.
COOPER: This has been going on for more than 20 years.
MACPHAIL: Because we want this situation closed.
(CROSSTALK) MACPHAIL: That's right. And Anderson, I am devastated. And I like to close this book. And we feel him guilty. The evidence and everything we have seen, that I have seen, because I have been to all the trials, he is guilty. And I believe in that. So does the rest of my family.
COOPER: Other family members of yours, I believe, are attending the execution. You chose not to. Why?
MACPHAIL: Yes. I don't get any satisfaction on seeing that. I decided to stay home right from the beginning. That doesn't help my feelings and my hurt and all that at all if I see that.
COOPER: You know, obviously, those who have come to support Troy Davis or believe he was wrongfully convicted, you know, they say seven of the nine people who originally gave eyewitness testimony have either changed their testimony or recanted.
What do you make of that?
MACPHAIL: Well, the thing that got me is why did they wait 17 years to do that? They had the chances when all the hearings and the court sessions were going on for four times. They could have been there and said -- well, you know I don't believe in it or I maybe was wrong.
But now at the 11th hour, they come up with all these recantations after 17 years? I don't believe it. If they said, I don't remember, I can accept that. It's been a long time. But not to say that they didn't think that really did happen. And that -- yes?
COOPER: Well, I'm sorry. What do you want people to know about your son? To remember about your son?
MACPHAIL: My son was a wonderful person. And I'm not saying that just because I'm his mother. He was an Army soldier, Airborne Ranger. He spent six years in the military. And then he choose the police department. He was a wonderful father and husband. And he was out there to help a homeless man that was beaten to a pulp that evening. So I don't think what happened was fair.
And I don't know if everybody knows that Troy Davis shot somebody earlier that evening in the face. And the casings from the -- from the shells match those casing and then the ones they found by Mark. So I think that is pretty much good evidence if you ask me.
COOPER: And are you -- I mean, are you waiting by the phone? Are you --
MACPHAIL: I don't know if people know then.
COOPER: Are you waiting by the phone now? I mean I can't imagine what this evening is going to be like for you.
MACPHAIL: Yes. It is hell. And yes, I'm waiting by the phone. I'm waiting for that phone call where they say go. So and she said I should hear it within the next 30 minutes, they figured it would take.
COOPER: And when you --
MACPHAIL: And I'm waiting for it.
COOPER: And --
MACPHAIL: With my family, and they all are --
COOPER: I'm sorry, there's a satellite delay so I don't mean to be stepping on what you're saying. If you get that call that it is a go and --
MACPHAIL: Yes, my family is all up there.
COOPER: Your family is all up there. If you get the call that it is a go and Troy Davis is executed, what do you think you're going to feel when you get that word? Do you have any sense?
MACPHAIL: I am almost sure I feel relief and maybe some peace which I desperately need. Because I have been through hell. Especially the last couple of years when everything was kind of building up and we had to go to court again and again. So I need some peace. I really do.
And it's not a party for us at all. He did not have to do that. That was his choice. To shoot people that night which was one of them was my son and then the other one. So --
COOPER: Anneliese --
MACPHAIL: I don't think we're wrong at all.
COOPER: Anneliese, I know it's extraordinarily difficult time for you. And I appreciate you coming on to tell us your perspective. Thank you so much.
MACPHAIL: Well, Anderson, I was proud to talk to you. Thank you, too.
(END VIDEO CLIP)
COOPER: We're going to have more on the breaking story coming up.
Let us know what you think. We are on Facebook. Follow me on Twitter. I have been reading your tweets a lot @AndersonCooper. Also try to tweet in the hour ahead.
As we wait to hear what the Supreme Court may say about Davis' scheduled execution, we're going to take a closer look at the details of the case, get you up to speed next.
Also ahead, a teenager whose parents say he committed suicide after years of bullying. We told you about him last night. Jamey Rodemeyer is his name. He was 14 years old. He blogged about how he was bullied. We will show you a photo of him talking in his own words about how it gets better. But, for him, it didn't get better. This past Sunday, he took his own life. I spoke with Jamey's family about his life and his pain -- coming up.
(COMMERCIAL BREAK)
COOPER: And the breaking news tonight: a delay in the scheduled execution of Troy Davis in Georgia. He was set to die by lethal injection three hours, 18 minutes ago, 7:00 p.m. Eastern time. That is on hold as the U.S. Supreme Court is considering a last-minute appeal.
While we wait to see what the Supreme Court does, we want to just show you more details about this case.
Gary Tuchman has details on why this case has garnered so much attention.
(BEGIN VIDEOTAPE)
GARY TUCHMAN, CNN NATIONAL CORRESPONDENT (voice-over): It's anything but a routine question.
(on camera): How scared are you of possibly being executed?
(voice-over): But it's relevant. Because the man I'm talking to, Troy Davis, may soon be a dead man. A jury only took a few hours to decide he was guilty of murdering a police officer in Savannah, Georgia. A few more hours to decide on lethal injection.
Brenda Forrest was one of the jurors.
BRENDA FORREST, JUROR AT TROY DAVIS TRIAL: He was definitely guilty. All of the witnesses, they were able to -- you know, to ID him as the person who actually did it.
TUCHMAN: There was no DNA or physical evidence against Davis. The primary reason he was convicted, witness testimony. The slain police officer's wife trusted the witnesses.
JOAN MACPHAIL, OFFICER MARK MACPHAIL'S WIDOW: They were just so adamant about what they saw, when they saw it.
TUCHMAN: But this is how the juror feels today.
FORREST: If I knew then what I know now Troy Davis would not be on death row. The verdict would be not guilty.
TUCHMAN: What she knows now is this. Almost all of the prosecution's star witnesses have changed their stories. Some saying police pressured them to say Troy Davis did it. One of those people is Darrell Collins, a prosecution witness who signed a police statement implicating Troy Davis.
DARRELL COLLINS, WITNESS AT TROY DAVIS TRIAL: I have told them over and over this is -- I didn't see this happen. They put what they wanted to put in that statement.
TUCHMAN (on camera): Savannah Police Officer Mark MacPhail was working on off-duty job here. He was providing security at night for this bus station and for this Burger King restaurant that is currently out of business. There was a homeless man in this parking lot that was being harassed and intimidated. He yelled for help.
The officer ran over and seconds later Officer Mark MacPhail was shot and killed. It was tragic, horrifying, and chaotic, and two decades later it all still is.
(voice-over): The man who admitted to harassing the homeless person went to police the next day and told them he saw Troy Davis shoot the officer. Wanted posters went up all over Savannah. A reward offered to catch the so-called dangerous cop killer. Racial tensions inflamed.
After the shooting, Troy Davis was in Atlanta, four hours away. His sister say scared for his life.
UNIDENTIFIED FEMALE: My brother decided to turn himself in, there already have a shoot to kill order on him.
TUCHMAN: This man, Derrick Johnson, a pastor, got in touched with Davis. He volunteered to pick him up and drive him back to Savannah to surrender. He says Troy Davis insisted he was innocent. The pastor who has never told the story to a reporter before was stunned the DA's office never interviewed him.
(on camera): You're with this man for four hours. You're bringing him back to Savannah to police custody. They never interviewed you?
REV. DERRICK JOHNSON, CONVINCED TROY DAVIS TO SURRENDER: Never talked to me.
TUCHMAN: Never asked you a question about your journey?
JOHNSON: Never.
TUCHMAN: What he said? If he had a weapon? Has he admitted to the crime?
JOHNSON: No.
TUCHMAN: If he did it for the crime?
JOHNSON: No. Nothing. And this is the one case where nobody wanted to know. And I don't think now looking back that anybody cared.
TUCHMAN (voice-over): The pastor is one of many who now believe facts be damned, Troy Davis is going to be arrested for murder. As for the Savannah police they have always said their witness interviews were taken properly, no coercion, and prosecutors have stood by the conviction. But a number of witnesses have signed affidavits changing their original testimony. Dorothy Farrell is one of them. A former prison inmate. She writes, "I was scared that if I didn't cooperate with the detective then he might find a way to have me locked up again. So I told the detective that Troy Davis was the shooter."
(END VIDEOTAPE)
COOPER: We're interrupting Gary's report, this just in -- the Supreme Court has just rejected the stay of execution for Troy Davis.
Back with us from outside the prison in Jackson, Georgia, is David Mattingly, also senior legal analyst Jeffrey Toobin, and criminal defense attorney B.J. Bernstein, who is also a former prosecutor, a lot of experience in the Georgia courts, including with the state superior judge who denied Davis' appeal earlier today.
Jeff, we just have heard the word. What do you make of it?
TOOBIN: It's over. The legal system has completed its works after 20 years. And I assume that he will be executed in the next few minutes.
COOPER: Jeff, hold on.
I want to see the scene outside, if we could take that live shot outside the prison. I'm not sure the crowd has heard the news yet.
David Mattingly, has the crowd heard? This is the scene outside...
(CROSSTALK)
MATTINGLY: Anderson, they do not appear that...
COOPER: Go ahead, David.
MATTINGLY: Anderson, the crowd here is very sedate. If they have received word, they are taking it very quietly.
It has been very quiet here for about the past half-hour. And what we are seeing from the crowd across the street here -- let's move in first, see if we can get a closer look. There seems to be a lot of communication going on in the group, people moving about now.
They are probably getting word right now that the moment that they have been fighting against, some of them for over 20 years, is now imminent.
COOPER: David, what...
MATTINGLY: The officers who have amassed here outside the gates, Anderson, seem to be milling out a bit more. Apparently, they have gotten word as well, and everyone taking their positions, not necessarily at an at-ease posture anymore, but standing more ready.
(CROSSTALK)
COOPER: We should point out to our viewers, David, on the left side of our screen -- I just want to tell our viewers what they are looking at.
On the left side of the screen outside the prison where Troy Davis is now to be executed. The scene on the right, which has gotten a little bit harder to see, is outside the Supreme Court, where we heard there were some protesters which had gathered. It seems much quieter there, so that is what you are looking at again. Again, the right-hand side is the Supreme Court, though the justices are not in the Supreme Court.
They are spread out and have made this decision over the last three -- three hours and 23 minutes in various -- in different locations. And the scene on the left is inside -- is just outside the prison.
B.J., in terms of what happens now, what is the process?
BERNSTEIN: The process will be that the -- once officially the prison officials get this word that Supreme Court denies, this death warrant has already been in place. They could have already killed Troy Davis, but they waited until the Supreme Court, and now I'm afraid it will not be much longer until this man is put to death by the state.
And I got to tell you, Anderson, this is very hard to hear, because this is a very -- the whole country and the whole world has been riveted by this. And it has really touched off a debate that I have never seen in my legal career with regard to the death penalty. And an entire generation is seeing up close and really reevaluating how we think about this and what's happening. I'm a -- I'm disturbed.
COOPER: I think I just want to hear -- could we just hear what the sound is, I think, outside -- I don't know if it -- was that outside the prison or outside the Supreme Court? Let's hear what -- if we can hear the natural sound outside the prison.
All right. All right.
MATTINGLY: Anderson, I have to tell you, if you are listening for something out here, you are not going to be able to hear anything other than the hum of the generators from all of the live vans here, everyone absolutely quiet.
So many of the spectators here, the demonstrators now huddled in prayer.
COOPER: For many families, for two families, really, this is a very difficult night, obviously the family of Troy Davis, the family of Officer MacPhail, the man who was killed back in 1989.
Some of the family are in attendance at the -- at what will be the execution of Troy Davis. Officer MacPhail's mother, Anneliese, is not there. She chose not to attend. She joins us now. You have -- you have just heard the word, obviously, that the execution will go ahead. When you heard that, what went through your mind?
MACPHAIL: Are you talking to me?
COOPER: Yes, Anneliese.
(CROSSTALK)
COOPER: What went through your mind?
MACPHAIL: I'm finally -- we have been sitting here for hours.
Well, I want it to get it over with. We have been sitting here for hours to wait what's going to happen. And I want it over with. We are ready to accept that decision that was made by the courts, and I like to have some peace now, when this is over.
COOPER: Do you think that's possible, to have peace?
MACPHAIL: I sure hope so. I'm working on it, I will tell you that, because we have been through hell.
He did this. Nobody made him do it. It was his choice. So, I lost my son, the father of my grandchildren. And I have been very hurt and very upset with all these things that's been going on for years, so I want it to come to an end now.
COOPER: For more than 20 years, you have been in and out of courtrooms following this case, looking for justice for your son. Have you ever had any doubts? I mean, when seven of the nine witnesses have changed their stories or recanted their stories, have there ever been any doubts that Troy Davis did this, for you?
MACPHAIL: No, I never had.
After I went through the original court and trial, from then on, what I saw and heard, I was never changed -- I never have changed my mind. And they recantation came after 17 years. They had many choices to be before the court, because I was there four times, in one of them. They had a choice to say and voice their opinion. I don't know why they waited until the last minute to come up with that.
COOPER: Anneliese, I know other of your family members are there.
(CROSSTALK)
COOPER: Other of your family members are there. They are going to be witnessing the execution.
Will you ask them about -- do you want to know from them the details of what happened, or do you not want to know?
MACPHAIL: Correct. Well, I have the feeling I don't have much choice. They are probably going to tell me. I have one daughter that probably will tell me all the details. So, I see. We see what happens.
COOPER: And what are your thoughts about Troy Davis?
MACPHAIL: Well, there was a lot of anger at one time. Then there was the disgusting feeling, what he tried to do and fight everything, which I, in a way, can understand.
But I think he deserves it. He is the type of person, what I have seen and heard about him -- and I shouldn't say that, because what I have seen, he has made his own bed and he got to sleep in it.
COOPER: Are you going to wait up until you get final word that he has been killed?
MACPHAIL: I'm going to wait until my family comes back from Jackson. I'm going to be up until they get here.
COOPER: What do you think you will say to them when they walk in the door, after having witnessed his execution?
MACPHAIL: I don't know that yet, Anderson. I really don't know.
I am so worn out from all this waiting and all this pulling back and forth. I see. That's -- I'm usually a spur-of-the-moment person, so I have to see.
COOPER: Well, Anneliese, I appreciate you being with us. And, earlier, we spoke about your son. And obviously, I know your thoughts are with him tonight as well and his family.
So, Anneliese, I appreciate you being with us. Thank you.
MACPHAIL: Oh, yes. Oh, yes. You wouldn't believe how often I talked to his picture today.
COOPER: Really?
MACPHAIL: So, he is very much among us tonight. So, oh, yes. Oh, yes, I can feel him. I can feel him around me. So...
COOPER: When you talk to his picture, what do you say?
MACPHAIL: I know he's watching us.
I tell him, "Dear, let this be over soon, so we both have some peace. And your family has some peace, too. They need it also. And we love you. We miss you. You will always be in our heart."
COOPER: Anneliese, thank you. I appreciate talking to you.
MACPHAIL: Well, you're very welcome. Very welcome.
COOPER: I want to, if we can, bring in Jeff Toobin and B.J. Bernstein again.
Jeff, at this point, I mean, legally there is -- there is obviously no more -- there's no more legal appeal?
TOOBIN: No. And what made this situation even more tense and bizarre is, at 7 p.m., Georgia had the legal right to execute him just then. They decided to wait to hear what the Supreme Court would do.
But at this point, there was no illegal impediment at all. Now, with the Supreme Court having denied the stay, there -- you know, it is official that the last -- the last legal step has been taken. But for the last three and a half hours, Georgia would have been within its rights to begin the death -- we execution process.
COOPER: We're going to take a short break. We'll be back with our continuing coverage. We'll have more on the breaking news, the Supreme Court rejecting the last-ditch appeal from Troy Davis. The state of Georgia can now proceed with his execution.
We'll be right back.
(COMMERCIAL BREAK)
COOPER: This is the crowd outside the prison where Troy Davis is now set to be executed. You can just hear them chanting "We are Troy Davis."
Our David Mattingly is there. David, am I correct, is that what they're saying, "We are Troy Davis"?
DAVID MATTINGLY, CNN CORRESPONDENT: That's right, Anderson. It's a chant that they've had quite a few times during demonstrations over the past week leading up to today.
Tonight, it sounds a little bit different to me. Before, there was defiance. Tonight, it's -- seems more personal. People making a strong statement that they -- when they say, "We are Troy Davis," they are saying something about the system that they believe that was flawed that allowed for his execution. All of these people, so many of them being so close to this case, probably for a decade or more, tonight now realizing that the work they have done, the pressure they've tried to put on public officials, the outcome that they were looking for is not going to happen.
COOPER: The court has denied a last-minute appeal from Troy Davis' attorneys, meaning the state of Georgia can now proceed with his execution. Talking with David Mattingly, who is outside the prison in Jackson, Georgia. Also, senior legal analyst Jeffrey Toobin. And criminal defense attorney B.J. Bernstein is also a former prosecutor with a lot of experience in the Georgia courts, including the state superior judge who denied Davis' appeal today.
And as we continue to look at that picture outside the prison, I just want to bring in B.J. and Jeff.
B.J., in terms of the process now that happens, do we have any sense of how quickly Troy Davis may be put to death?
BERNSTEIN: I would imagine within with the hour. I mean, the chances are he is ready with the IV. They are probably getting everybody together into the room. And the process will start fairly soon, because I think it's been a long night, and unfortunately, I think this is about to happen.
COOPER: Jeff Toobin, in terms of the...
UNIDENTIFIED MALE: Charlie, Charlie?
COOPER: How many people -- do we know how many people. I mean, B.J. B.J., do we know how many people can actually -- are actually -- will actually witness this execution?
BERNSTEIN: Well, there will be five reporters from various news agencies that will be present. There will be members of the families, if -- I'm not sure if anybody from the Davis family is actually going to be there. As we just heard from the slain officer's mother, they have family members there. And then there will be some prison officials.
So, probably around 15 to 20 people present.
COOPER: Jeff, why do you think this case has garnered so much attention internationally out of all the executions that occur in the United States?
TOOBIN: Because there has been substantial doubt by a lot of people that he's guilty. I mean, I think it really is as simple as that. This case has had so many peculiar twists and turns legally, but they all come down to the same issue. You know, there are a lot of legal issues surrounding...
COOPER: Jeff, I'm sorry, I've just got to jump in. I have just been informed from officials in the prison than the execution will begin in 30 minutes. It is now 10:38.
So I'm sorry, Jeff. Continue.
TOOBIN: Well, it's just -- there are a lot of legal issues surrounding the death penalty, do people get good lawyers? Is -- is the -- is the law enforcement system fair?
But the fundamental thing that moves most people is are we executing people who are not guilty? And this case is the one where I think people focused around the world -- I mean, really, since Julius and Ethel Rosenberg were executed for espionage in 1953, this case has garnered the most attention and outrage on the part of some people, and that's a big deal.
And it comes at a time when public support for the death penalty has been shrinking a little but at a time when actual executions and actual death sentences have gone down a lot in the last 15 years.
COOPER: Joining us on the phone is CNN contributor Roland Martin.
Roland, you probably -- I don't know if you heard. We just had on the mother of the slain officer, who expressed her -- her -- I don't know, satisfaction, is the right word but just a sense of she's looking for peace moving forward from tonight and certainly believe that Troy Davis is guilty in the murder of her son.
Roland, at this point, what do you make -- were you surprised at how long the Supreme Court took to make this decision?
Having some problem, obviously, getting in touch with Roland. I thought we had him.
B.J., are you surprised at the length of time that it took the Supreme Court?
BERNSTEIN: I was surprised, just like Jeff. But I think Jeff really tuned onto what the theme has been here: too much doubt.
And Anderson, I know you've done a lot of -- people from CNN have done a lot of stories about the problems with eyewitness identification. The number of times, for instance in a lineup. Seventeen to 18 percent of the time, people pick someone who is incorrect, even though they say they saw them. And that's what this case was based on.
And add that to what we're seeing historically of the work of the Innocence Project, where over 200 people who were innocent and were -- had lengthy jail sentences turned out to be innocent is causing everyone to question, "Why are we putting to death someone that we are not sure committed the offense?"
And bringing about the larger question about the death penalty to a new generation. And I think, looking at Twitter, looking at who's even down there right now, for instance, celebrities. Big Boi of Outkast is down there and has brought so many young people from Atlanta University, Clark Atlanta. The schools here. I even heard about some elementary school students who came down to Jackson, Georgia. They are being introduced to the very issues that supposedly seemed settled about the death penalty.
COOPER: Jeff, though, to B.J.'s point, you know, she was raising the point of so many -- there's so much doubt about evidence. Yet time and time again, courts have looked at this, and the Supreme Court even had another judge look at this -- when was it, last year?
TOOBIN: It was -- it was two years ago.
COOPER: Two years ago.
TOOBIN: I mean, that -- that's what makes this case so, so difficult. Is that he has had the most exhaustive judicial review of any prisoner on Death Row that, certainly, I have ever heard of.
But the phrase the court always uses about death penalty cases is that death is different. The level of certainty that we demand of death penalty cases is different from those that we demand in a case where people are in prison and can be released if we find out -- found out they made a mistake.
And it's important to emphasize that, you know, the courts have never found that he was innocent, even though the evidence is certainly more ambiguous than it is in most of the cases that result in execution in this country.
COOPER: All right. We're going to be right back with more coverage of the execution of Troy Davis, scheduled to happen in less than 30 minutes.
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COOPER: Breaking news tonight, the execution of Troy Davis now expected to happen some time around the top of the hour. At that point we're told a public affairs official from the prison will come out and tell us of the details of the execution.
This after a ruling just a short time ago from the Supreme Court, just one sentence long. It reads, quote, "The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the court is denied." With that sentence, Troy Davis ran out of options. The execution will happen tonight.
Back with us from outside the prison in Jackson, Georgia, David Mattingly. Also senior legal analyst, Jeffrey Toobin, senior political analyst Roland Martin, and criminal defense attorney B.J. Bernstein, who's a former prosecutor with a lot of experience in the Georgia courts, including with the state superior judge who denied Davis' appeal today.
Roland, were you surprised that the Supreme Court took so long? Were you surprised at how they ultimately ruled?
ROLAND MARTIN, CNN POLITICAL ANALYST (via phone): Anderson, I'm very surprised. I did not expect them to take this long. Obviously, we expected his attorneys to file an appeal. And it will be filed in court. Many people look at it as (UNINTELLIGIBLE) folks on the left or folks on the right, right in there in the center but clearly the amount of time they took, very surprising, you know, more than three hours.
Look, I'm born and raised in Texas. I've stood outside of prisons covering executions. And I'll tell you, it was very surprising to watch people, a lot of people on social media who thought that was -- that there was a ray of hope that the court would have a stay, further conversation, felt everything had been exhausted and simply did not rise to the level of the stay of execution.
COOPER: Jeff, given that it was basically a one line from the court -- I mean, you had thought maybe someone was writing a dissenting -- dissenting brief, but none of that appeared.
TOOBIN: I was wrong. And I thought there -- I thought all this time, that was the explanation. It may be as simple as a communication problem: they couldn't reach everyone quickly. It could be that somebody just took some time, longer than they expected, to reach their decision.
Just if I can explain something in that order that people might be curious about. It said "referred by Justice Thomas to-- to the court as a whole." The reason for that is the justices divide up the country. Every justice covers a few states. It's called a -- each justice has a few circuits, as it's known. Justice Thomas covers the 11th Circuit, which includes Georgia. So the application for the stay would initially go to him. And when it comes to cases like this, they always refer it to the court as a whole. But that's why Justice Thomas was mentioned in that order, is because he's the justice who covers the area that includes Georgia.
COOPER: Will it ever be known, Jeff, if there, you know -- what the vote was on this?
TOOBIN: Definitely. If -- and I think the vote we do know, because there was no dissent. I think we know that it was unanimous.
COOPER: So, all of them voted just to deny any kind of stay?
TOOBIN: Absolutely. Because even -- even if one justice did not participate, that would be noted in the order.
So I think this is yet another example of every judge that has considered this case had has declined to rule in Troy Davis' favor. Every judge has let the death penalty proceed, and that now includes all nine justices on the current Supreme Court.
COOPER: That is very telling. I mean, if -- in the court of public opinion, Roland, in the court of public opinion, this case has taken on a life of its own. People have very strong opinions about it. Every court that's looked at it now seems to view it otherwise.
MARTIN: Absolutely. And (UNINTELLIGIBLE) a lot of people don't understand is that judges make decisions based upon the law. It's not a question of emotion. It's not a question of, well, how we feel. They are making legal determinations. That is what always surprises people, when they say, "Well, I can't believe it went that way."
But again, these cases, you have the passion, you have, you know, so much attention in social media, people on radio, but the reality is our system is simply based on laws. And that's how judges have to make decisions and, you know, Lady Justice is blind. Some people say not so, but the reality is that's the only way they can operate.
COOPER: We've got to take a short break. We'll be right back.
(COMMERCIAL BREAK)
COOPER: Breaking news tonight, the execution of Troy Davis expected to happen just a little bit past the top of the hour.
Back with us from outside the prison in Jackson, Georgia, David Mattingly. Also, senior legal analyst Jeffrey Toobin, CNN political analyst Roland Martin, and B.J. criminal defense attorney B.J. Bernstein.
You're looking at a scene outside the Supreme Court there. Obviously, the justices are not there. They are in a different -- a variety of different locations. That may be one of the reasons why it took so long to get the final word from them. The final word didn't come down in the last, I guess, 30 or 40 minutes or so.
We're going to continue to stay on the air until we have the word of the execution. It's supposed to be happening in just a matter of a few minutes.
B.J., at this point, what -- what is the process?
BERNSTEIN: Right now the process is the final preparations of Troy Davis. He already had the IV in his arm. They will be getting him into a room, and they will administer a lethal injection. And...
COOPER: The IV is for a sedative that he's allowed to have to calm him before?
BERNSTEIN: Exactly. The IV to calm him before. And then he'll go in and there will be an injection. It will be witnessed by members of the media, members of law enforcement. And then, as we heard, the -- some of the family members from the slain officer. And then, of course, some of the Davis family members have the option to be present, as well.
COOPER: And is he allowed to say anything before the injection is administered?
BERNSTEIN: He is briefly allowed to say something. He had an opportunity earlier today to say something and he declined, saying that he didn't want a special meal. He want to do anything special, because he believed he was going to live.
COOPER: I believe in 2008, he was scheduled to be executed, as well, and was offered a last meal and declined it, saying it was not going to be his last meal. And obviously, he was right then.
BERNSTEIN: Exactly. This is the about fourth time that he has been close to death, and unfortunately, in the next few moments, it's going to be a reality.
COOPER: We're going to take a quick break. Our coverage continues. We'll be right back.
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COOPER: Good evening, everyone. We're expecting word any moment now that Troy Davis has been executed. We have not received that word yet. A short time ago, the U.S. Supreme Court denied a last-minute appeal by Davis' team of attorneys.
