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updated 9/22/2011 10:46:41 AM ET 2011-09-22T14:46:41

Guests: Al Sharpton; Pete Williams, Barry Scheck, Cynthia Tucker, Bob Barr, Barry Scheck, Michael
Smerconish

CHRIS MATTHEWS, HOST: Execution watch.

This is HARDBALL.

(MUSIC)

MATTHEWS: Good evening. This is Chris Matthews in Washington.

Leading off tonight: is it justice?

It`s 7:00 p.m. on the East Coast and Troy Davis, a convicted killer,
is about to be put to death down in Georgia, but the words "convicted
killer" tell just part of the story.

Supporters have been gathering all day in Jackson, Georgia, about an
hour southeast of Atlanta. For years now, they have insisted that Davis is
innocent -- actually innocent of shooting a killing a Savannah Georgia
Police Officer Mark MacPhail 22 years ago. And this case has drawn
national and international attention for a number of reasons.

Well, here are some of the facts:

Seven of the nine witnesses have taken back their testimony, recanted,
if you will, against Davis.

Three of the jurors, by the way, involved in sentencing him to death
have asked that he be spared now. They have changed their minds.

At least one witness has come forth under oath and said she heard
another man who was actually involved in that scene at the time confess to
the actual shooting.

Still, Davis does admit to being at the scene of the crime and shell
casings were found linking him to a previous crime.

And so, that conviction in 1991, Davis has since then exhausted every
legal avenue in the hopes of being spared. In fact, his execution has been
stayed now three times by various courts.

We`re going to get word soon from the Georgia Diagnostic and
Classification Prison that Davis has been put to death. And we`re going to
be live throughout this whole hour as word comes in.

We`re also going to bring you the reaction from around the country,
from our reporters, as well from those most interested in this very dire
case.

We begin with my colleague, the Reverend Al Sharpton, whose host of
"POLITICS NATION." And also, syndicated columnist Cynthia Tucker -- she
joins us as well.

Reverend Sharpton, it`s 7:00.

AL SHARPTON, "POLITICS NATION" HOST: Well, I`m at a real loss for
words. I`m hoping -- and was hoping all day for a miracle. We had a vigil
all day calling for justice here. I remember standing there in 2008 with
Troy Davis`s mother and 90 minutes out, it was stayed, his execution. It
does not appear that that`s going to happen tonight -- as Cynthia had told
me and predicted it would.

And I think it`s outrageous. I also think that we have got to, one,
deal with the moral outrage of this, Chris. But then I also think that
we`ve got in his name, deal with the fact that I do not think a capital
case should be allowed to go into court only on eyewitness testimony. No
matter what your beliefs, there`s so much data that says that eyewitness
testimony is so flawed it should be outlawed that this can be used in a
capital case if there`s no physical or scientific evidence.

MATTHEWS: What do you mean by that? I mean, if somebody seeing
somebody shoot somebody at point-blank range, you want what other evidence?

SHARPTON: I want to have some ballistics. I want to have something
that proves physically that they did not, in fact, mistaken what they said
they saw. This case is an example of that. When you have seven of the
nine witnesses -- you have any number of studies, Chris, that say that
people think they saw things in questioning, they were shown the wrong
pictures. There`s all kinds of things.

If you`re talking about a capital case, not a murder case, not a case
with life in jail, but a capital case, you should have more than just
eyewitness as the basis of prosecuting a capital case, and we`re going to
Washington on that this Friday.

MATTHEWS: Well, I want to stay with you a bit now. You`re my
colleague, so let`s have this out right now. We watched a recent example
of public attitudes about capital punishment, not about this case, that may
well be already brought to an end with the execution just moments ago.

But one of the most shocking moments for NBC News and "Politico"
during that debate at the Reagan Library was what we saw from the cheering
when the governor of Texas, Rick Perry, talked about all the people,
hundreds of them for whom he had signed execution papers. Let`s watch.

(BEGIN VIDEO CLIP)

BRIAN WILLIAMS, NBC NEWS: Your state has executed 234 death row
inmates, more than any other governor in modern times. Have you --

(APPLAUSE)

WILLIAMS: -- have you struggled to sleep at night with the idea that
any one of those might have been innocent?

GOV. RICK PERRY (R-TX), PRESIDENTIAL CANDIDATE: No, sir, I`ve never
struggled with that at all.

(END VIDEO CLIP)

MATTHEWS: Well, you have a couple points there. I didn`t even notice
the last tag from the governor, but let`s talk about the public reaction --
instinctive, enthusiastic applause, representing the fact that in a recent
poll, 80 percent of Republicans, 82 percent are full supporters of capital
punishment.

Now, Democrats are mixed on the issue, a balance slightly in favor, 55
percent. But they struggle with this issue.

Republicans generally don`t struggle with it. They`re all for it. In
this case, it looks like Governor Perry says he has no sleepless nights.

The most recent Republican president, George W. Bush, and there`s not
an ad hominem on my part, surprised me when I heard about the fact that he
never put in more than 15 minutes in studying in case he had to review, a
capital execution case. It doesn`t seem to bother these Texas governors
with an execution that they have to approve, or at least not stand in the
way of.

What is it in the heart of Republicans that seems to not be in the
heart of Democrats? I want your analysis, Reverend Sharpton, why a
difference of heart here?

SHARPTON: I don`t understand the difference of heart. I don`t
support the death penalty. I don`t understand those that do, particularly
those that claim to be moral and upstanding in other ways.

But what is beyond that, and I`m glad you showed it is, even if you
disagree with my stand against the death penalty, what are you cheering
about? Why are we acting like we`re at some coliseum throwing people to
the lions and that is civilized behavior?

And in this particular case that we talked about tonight, you have
people that agree with the death penalty like Republican congressman,
former congressman, Bob Barr, former FBI Director Bill Sessions, saying,
no, there is reasonable doubt here. This shouldn`t happen, and they still
are going forward.

Have we become so insensitive and so bloodthirsty, that we can set up,
not even after Rick Perry sound bite when Brian Williams just raised a
question, they started cheering? That is frightening in a civilized world
to me.

MATTHEWS: And it is something.

Let`s go to -- Cynthia Tucker has won a Pulitzer Prize trying to
understand us.

You know, I just had an argument with one of the producers. I argued
that no human enterprise is perfect. Nothing we do is perfect.

To count as a statistician, to count is to err. Simply the add of
counting your dollars, you`re going to get it wrong once in a while.
Lighting a match or the cigarette lighter, it`s not going to work
sometimes. People don`t do everything right.

We execute, I`m convinced over time, over decades, sometimes they make
a mistake. The guy or woman, mostly the guy, sitting in the chair, usually
a poor person, often an African-American, but almost always a poor person
is executed. There must be times when we get it wrong as a society.

Is that a reason --

CYNTHIA TUCKER, SYNDICATED COLUMNIST: Absolutely, Chris.

MATTHEWS: Isn`t that a reason, one of the producers just argued to me
quite legitimately, if we ever get it wrong, that is in itself a reason to
stop executing people unless we`re perfect about it. Is that a reasonable
standard, that we don`t ever make a mistake?

TUCKER: Well, we clearly make mistakes in the criminal justice system
every single day. Innocent people are convicted of crimes. People are
arrested -- not prosecuted necessarily, but arrested, who didn`t commit a
crime. The criminal justice system is weighted with the burden of human
frailty and prejudices and misunderstandings and misconceptions.

And there`s a good reason that poor people, working-class people are
those most often convicted of crimes, those who most often end up on death
row.

We already tend to believe that they are more likely to commit crimes.
Those are some of the prejudices they carry around. And they don`t have
the resources to hire good lawyers who can wage an appropriate defense for
them. All of those are reasons that we ought to be extremely careful about
the death penalty. Like Reverend Al, I opposed it.

But even if you believe the death penalty is appropriate in some
cases, I don`t know how you cheer about it. It`s a duty to be carried out
somberly, and heaven knows Texas carts them off to the death chambers even
faster than Georgia does. Some mistakes have definitely been made in
Texas.

If we execute Troy Davis tonight -- and I say we for good reason.
These executions are carried out in the public`s name, and all of our name.
So, we execute Troy Davis tonight, we could well be making another mistake.

MATTHEWS: Reverend Sharpton, I have great respect for your passion.
I don`t always agree with you. I don`t know anybody always agrees with
you, or me either.

But let me ask you about this case -- when you got into this case and
sympathized enough to visit with the accused. When you sat down with this
fella, like they say, everybody -- I remember "Shawshank Redemption," all I
know about these things, mostly from movies, they say everybody says
they`re innocent.

But when this fella, we`re looking at a picture of him now as a
younger man. Now as a younger man, when he told you sitting down whim him,
I assumed he was innocent, what made you believe him?

SHARPTON: What made me believe him was what happened before we went
in. You know, we`ve been accused of jumping into cases without taking our
time and being deliberate. So, I did a lot of deliberation and had the
general counsel at National Action Network, do it before I even went in to
see Troy. When we saw the recanting of seven witnesses, I went to Savannah
and had a rally. We talked to people on the jury.

You had people, Chris, that was on the jury that convicted him that
said if they knew the ballistics, that they were told that was on some of
the shells did not match what they were told were Troy, they wouldn`t have
convicted him. Any one of them would have hung the jury.

What all of that, to me the matter wasn`t just whether he was
innocent. The matter was that there was enough reasonable doubt that you
do not execute the man. That is why I have passion because the legal
precedent that establishes in this case is that on eyewitnesses, no matter
how flawed they may be, is a basis of a capital case. We cannot tolerate
that in the 21st century.

MATTHEWS: Do you believe, Reverend Sharpton, the fact that it was a
cop-killing, whoever did the killing was killing a cop, whether it was him
or another guy, somebody else theoretically, but probably one of the two of
them, in the killing of that police officer was out there moonlighting,
trying to make some extra money for his family.

Here, we`re looking at the picture of this young guy. He`s an
innocent. This guy is doing his job. This guy went over and tried to help
a homeless guy not get beat to hell by two guys, and he gets shot to death.

This is a good man here, a good person. And anybody else in that
community would want to root for this guy and feel for him and care deeply
about his loss.

Now, I`m asking you, do you think that fact it self-led to a rush to
judgment?

SHARPTON: I think that fact itself probably created a climate to rush
to judgment. And let me say this, I`ve said from the beginning, when we
got involved and I say it tonight, this cop was someone that should be
applauded for what he was doing that night. His family should have nothing
but love and sympathy from all of us. They are victims, no question.

But the reality is if the work man is being executed, we`re making
Officer MacPhail a victim again, because the person that killed him is
walking free. You cannot take away from the fact that if, with reasonable
doubt, they`re executing the wrong man, what are we doing to MacPhail all
over again?

MATTHEWS: Well, would you want to execute the other guy if he got
convicted, if they get the other guy?

SHARPTON: I wouldn`t want to execute him. I would certainly want him
see him pay with life imprisonment. I don`t execute anyone. I forgave the
guy that tried to kill me.

But the question is that if you do execute this man, he loses his
life, and you make a victim out of MacPhail again if it is the wrong
person, because we still have not done justice to who took the life of this
officer.

MATTHEWS: We don`t know, except by the clock, Reverend Sharpton, that
this man has probably already suffered the beginning of his end. That he`s
probably already being given the injection. It`s supposed to be at 7:00
Eastern. We`re going to get the clear word in a couple minutes.

But the schedule called for him to be executed 7:00 Eastern. That`s
past that time now. This guy may be past his time.

How can you continue your efforts here? I mean, it seems to me
worthwhile to our society, if can you demonstrate even with stronger
emphasis or more convincingly that this guy didn`t do it, he`s actually
innocent.

You get a case like this where somebody who gets executed, who is
actually innocent, and you can basically prove it, although you don`t have
to do in our country system, prove you`re innocent, you will have a very,
very strong argument against capital punishment with our without physical
evidence?

SHARPTON: No, I agree. I said that at the vigil today. I talked to
his sisters today when they came out from visiting him. We must walk out
of this tonight even if Troy is executed, and say that we must prove this
was wrong, and we must change the law to where even though the support the
death penalty will have to agree with us that you need in order to
establish a capital case more than eyewitnesses as your basis of evidence.

If we can at least make that step, then Troy Davis` case will mean
something in terms of civilized society. I don`t know why people that even
support the death penalty, and we`ll be in Washington meeting with the
Justice Department, why they wouldn`t agree that at least there needs to be
a bar to have to reach to justify capital case punishment.

MATTHEWS: Well, here we are -- Reverend Sharpton, thank you very
much. Cynthia Tucker, thanks so much. We`re waiting now to get the word
on what happened. We expect we`re going to hear very soon about an
execution having taken place.

But this is a strange case. This man has so many supporters who
believe he`s actually a not victim of technical problems in terms of the
court system, but really innocent, and these people believe he`s really
innocent, and this is a miscarriage of justice.

We`re going to come back and look at this evidence of innocent people,
if there are such cases in this country, maybe this was one we are clearly
watching. That`s ahead

As we await word from Georgia on this execution, planned tonight for
7:00 Eastern, his time may already have passed of Troy Davis.

You`re watching HARDBALL, only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS: Look at this scene outside the prison. Of course, Troy
Davis was scheduled to be executed at 7:00 p.m. Eastern. We`re well past
that right now and we`re waiting word from the officials at the prison down
there to find out what`s going on inside that prison right now.

It`s one of the scariest things to think about, of course, the idea
that an innocent man could be executed by the state, by society, when he`s
not guilty. It`s often the stuff of movies. But many death penalty
opponents believe it`s happened in real life over the years who have
actually been executed, who are screaming their innocence, and they were
right -- and that`s pretty scary. We have to talk about that.

Let`s go right now to Barry Scheck, who was on earlier tonight on an
early edition. And we have Bob Barr joining us who`s involved in this
matter.

I want to go to Barry Scheck. You were great a couple of hours ago
when we talked about this. Your career is basically about appeals cases,
the O.J. case, of course, we all got to know you, about physical evidence.

Al Sharpton, our colleague said we shouldn`t be executing people
without real scientific evidence, and that eyewitness accounts are simply
not reliable. Is that too rigorous a standard under common law intuition?
Can you really limit cases to where you have actual evidence, ballistic
evidence, DNA, that sort of thing?

BARRY SCHECK, INNOCENCE PROJECT: Well, I mean, the first thing that
should be noted, Chris, is that, you know, for the last 20 years, we`ve had
an Innocence Project, 55 chapters in the country and there are 275 people
who were convicted, and then real exonerated with DNA testing. An
eyewitness misidentification was the contributing factor in 75 percent of
those cases.

There was also junk forensic science, and the same thing happened in
this case. We had what everybody agrees was a bad ballistic testimony in
this matter. But I -- you know, Chris, let me bring it back personally to
you, OK?

If you recall during the 2000 presidential campaign, I was seeking a
stay of an execution from Governor Bush for a guy named Ricky McGinn to get
a DNA test, and on your show, Governor Bush said I will grant that stay,
because I will always grant a stay if DNA testing can shed light on
somebody`s guilt or innocence.

MATTHEWS: I remember that vaguely. Yes.

SCHECK: Now, let me tell you something else. On December 7th, 2000,
the last person that George Bush executed was a man named Claude Jones.
Claude Jones was sentenced to die after a 3-2 decision of the Texas Court
of Criminal Appeals where it was said that an accomplice in Texas, you need
independent evidence to corroborate an accomplice. The independent
evidence in that case was analysis of a hair that was found around a
countertop where the person was killed.

MATTHEWS: Barry, we have to -- I`ve got some news. We got to right
now.

We`ll be right back with your analysis. Let`s go right now to Pete
Williams, NBC`s justice correspondent.

What`s the word, Pete?

PETE WILLIAMS, NBC NEWS JUSTICE CORRESPONDENT: Well, Chris, we are
waiting for the U.S. Supreme Court to say whether or not it`s going to
grant a stay of execution. The request came just a little over an hour ago
from the lawyers for Troy Davis. And the court hasn`t yet responded.
There`s no time limit by which it must respond.

However, it does appear from what we`re hearing from people in
Georgia, that the state is delaying execution. There`s word from our
affiliate that one of the lawyers has said that the state has granted in
essence a temporary reprieve, to more or less in practical terms, so that
the state is waiting to see what the U.S. Supreme Court is going to do.

Now, to make it clear here, as Barry Scheck could explain better than
I can, the state is in control of the time for the execution. If it wants
to delay the execution, it can. That is a matter for the state, not the
Supreme Court. The Supreme Court doesn`t grant reprieves. That`s a state
issue.

The court is either going to grand the stay of execution or not.
That`s the only thing pending right now before the U.S. Supreme Court.
Now, a logical question would be, well, how long will that take, and
there`s no good answer to that. The court is under no time limit here.

Obviously, the justices are aware of the clock issue here, but they
have to take some time to think this. They have all be rounded up, and
that`s I`m sure going on now. Last week, for example, Chris, when the
Supreme Court issued a stay of execution in the Texas case of Dune Buck,
who had been convicted of a double murder in Houston and his lawyers were
asking for a new sentencing hearing, the court granted the stay two hours
after the time for the scheduled execution.

The state was waiting in that case in Texas. It did not have to, but
it did. So, presumably, the same thing is going to happen here, that the
state is going to wait. That`s what it appears to be. The court will act
when it`s ready. But there`s no deadline -- there`s no time limit until
federal law for the Supreme Court to act.

But that appears to be the situation here, where we`ve gone beyond the
scheduled execution time. It appears that the authorities in Georgia are
waiting to see what the Supreme Court does.

How many federal judges -- of the nine Supreme Court justices, how
many associate justices or the chief have to intervene to act for this to
stop?

WILLIAMS: Well, it would take a vote of five votes to grand a stay of
execution.

MATTHEWS: Really.

WILLIAMS: That`s my understanding. I may have to refresh my memory.
It`s either four or five -- I think it`s five votes to grant a stay of
execution. Procedurally, what`s going on here is that the lawyers for Troy
Davis are saying in essence, look, our guy`s gotten screwed here. We have
an appeal that`s coming your way. While we`re waiting for file that
appeal, and while you does I to take it, please don`t let the state proceed
with this execution because it wouldn`t make any sense to later say, yes,
we`re going to take this case and already have the execution already
happened. So, that`s the usual procedure here in this death penalty cases.

Sometimes, the Supreme Court grants these stays. Last week it did,
and last week it also denied a stay. So, there`s just no way to predict
what`s going to happen here. You have to remember, this case has been
before the Supreme Court once before. They sent it back to the lower
courts, and, you know, the justices may now feel that the lower courts have
adequately addressed the issues, that they sent it back for, we just don`t
know what they`re going to do.

MATTHEWS: This is what I think the average person hears right now,
beyond the obvious emotions of this case, and the desire of most Americans
overwhelmingly in fact to see justice done here, to avoid the execution of
an innocent man or the execution of someone who is guilty, depending on
your views here.

But how come this guy has enough legal power right now to operate at
all levels? Dealing with the state courts, dealing with the federal
courts, trying to get five out of the nine supreme court to get his side,
if he had this kind of legal firepower in his trial, he would have been
off, it seems to me.

I mean, how can they have such great legal help now and he didn`t seem
to have very good trial support when he was convicted of murder in the
first degree and sentenced to death? Where did they all come from? And
where were they in the first place?

WILLIAMS: It`s very often the case that the states don`t spend a lot
of money for people who can`t afford their own lawyers and the kind of
defense that people get in death penalty cases has been a subject of great
concern in the legal community for decades, that there isn`t sufficient
legal support for people the first time around.

You very often happen in a case like this, as more people get
interested, lawyers sort of come to the case and find things that they
think should have been done that weren`t done in the first go-around.
That`s not uncommon.

MATTHEWS: Without getting any into the details -- well, I give you
one detail. You have nine eyewitnesses, now all of a sudden, you only have
two. One of whom is accused by the defendant`s people of the crime itself
and the other one who has apparently led to make the testimony that he did
give.

Seven out of nine recanting -- does that surprise you? I can
understand why nine, 12 jurors were affected by the testimony of nine
witnesses, but so quickly, they all -- overtime, they have all sort of
evaporated. So, there`s no real eyewitness case left for this conviction.

WILLIAMS: And, of course, the question for the lower courts is, well,
OK, what difference does all that make? Did he nonetheless get a fair
trial?

You know, the legal standard`s a very high one when you want to reopen
a death penalty case. You have to, in essence, show, at least in the
federal system, that had the jury known what you`re -- the new facts you
have or the new information you have, they very likely would have come for
a different conclusion. That`s a difficult legal standard to meet because
there`s obviously other evidence, other circumstances that it`s hard for
the court to go back and look at.

MATTHEWS: Yes, I guess it`s the arguments that we non-lawyers don`t
get, that when you appeal a case, you`re not looking at a view of the
innocence or guilt of your client. You`re asking to whether he had a fair
trial or not.

WILLIAMS: Right, exactly.

MATTHEWS: And if it looks like a fair trial, you`re stuck with it,
right? That`s the limits of our system.

WILLIAMS: Exactly.

MATTHEWS: OK. Thanks, Pete. We`ll be watching with you. Thanks so
much.

WILLIAMS: You bet.

MATTHEWS: And we`ll be back to you, probably.

Let`s go back to Bob Barr. Bob Barr was a longtime conservative
Republican congressman who doesn`t have -- I don`t believe you have a
theoretically objection to capital punishment, is that right? You don`t
have a principled objection to some execution, right?

BOB BARR, FORMER GEORGIA CONGRESSMAN: I think that properly applied
and with proper safeguards, it is an appropriate punishment.

MATTHEWS: What do you think of this case?

BARR: In this case, I don`t think it`s present to carry out the
execution, because there has been very substantial evidence of innocence
that has been raised in this case. I don`t think that it is morally or
legally correct for the state of Georgia to execute a man against whom
there is very substantial evidence of innocent.

MATTHEWS: How did nine people come to make convincing testimony
against this fellow we`re looking at different ages, Troy Davis, convict
him before a court. Their testimony was powerful, as well as the
showcasing. All that seems to now under the bright lights of the appellate
system evaporated.

What happened? How can it be so convincing on trial day, so
convincing to a jury, and now it doesn`t seem to even exist anymore, this
evidence?

BARR: I think it really has to do with the level of scrutiny and the
amount of scrutiny that is brought to bear. This is evidence and witnesses
have recanted, that has been brought to the attention of a very, very large
number of people, a lot of judges have looked at it, a tremendous number of
lawyers, really from all across the political spectrum, Chris, have looked
at this, and have proceeded a much more thoughtful analysis of the legal
standard and the evidence available than might have been available or that
was available during the trial itself many years ago.

MATTHEWS: What do you think about capital punishment? Me as a
citizen who does pay attention to politics, I look this -- you know,
there`s something like 15,000 murders a year in this country. There`s a
couple of hundred executions. It`s not like everybody who kills somebody
gets executed.

It seems like the people who are executed seem to be poor people,
black or white, who seem to have a hard life. They looked like they have a
very hard life in many ways, the way they`re brought into trial. They`re
not exactly appealing people. They may have a rap sheet.

What is it about capital punishment? Is it basically reserved for the
down and out, the guy usually the guy who`s had a bad, miserable life in
prison in many cases? Is that what it`s for? Sort of the recidivist, is
that how is used the guy who has a life long criminal loser type, they jury
doesn`t` feel any sympathy for? Is that what happens?

BARR: As a program matter, that is partially correct. I don`t think
that one overly generalize about it Chris. But that is certainly correct.
The great deal of what goes into a jury`s deliberations on a death penalty
case is very, very emotional. And whether or not they feel any sort of
sympathy or there`s anything redeeming about that defense, that is indeed a
lot of what goes on.

MATTHEWS: And in this case there were two people involved,
allegations always going into the trial, the two people were beating up a
homeless guy, apparently to get a beer off, a bottle of beer off, from an
off-duty police officers, who is very compelling as a personality, working
an extra shift as a night watchman down the street, comes upon the
situation, he could have avoided, yet he intervened, he`s tried to save
this whole guy from getting beat up. He shot dead doing the best thing a
citizen or police officer can do.

Tremendous sympathy, as there should be, I mean personally I feel it.
They wanted to get somebody for it. So they bring this guy to trial. He
obviously at the scene, part of it, two people apparently beating up this
guy kind an allegations and I wonder whether the jury felt that had a
problem executing the guy with nine witnesses?

It looks to me like a fairly easy day in court. Nine witnesses, the
guy is there, he`s one of the two people beating the people up, a person
up, and then he has a gun that was apparently used in a crime earlier that
night, the shell casings match, conviction. Then all these year later
since 1989, we go back and look at the case and say, well, the evidence has
evaporated since then. This is a hard one.

BARR: It is a hard one. And I`ve seen nothing that would lead me to
believe Chris for example, this was an improper prosecution. I don`t think
there was anything wrong done by the prosecution. He proceeded in good
faith through the normal course of trial down there.

There was some evidence in a case, but as Barry indicated earlier, the
primarily overwhelming evidence in this case of guilt was eyewitness
testimony. And not only is eyewitness testimony among the most unreliable
of testimony, but in the circumstances of this case, where was night, a
poorly let parking lot, it really does race substantial questions about the
evidence. And when you couple that with the fact that the vast majority of
the witnesses not just one or two, which almost always happens but the vast
majority of witnesses have recanted. That certainly in my mind and the
mind of a lot of other both conservative and liberal lawyers have joined in
this effort raises a sufficient question as to implore the board of pardons
and paroles to stop the execution or at least have the courts stop it.

MATTHEWS: Hold on, congressman. Let`s go back to Barry. Barry, this
whole idea of recanting, witnesses who recant, it`s a very sort of miss
evil term, recanting. It sounds like something to do with the church, like
turning candles upside down. Is this something that happens to people
testified? I mean, you`re actually somebody says that guy kill that guy.
I saw him shoot that police officer. That`s an amazingly strong charge by
nine people.

Seven of those nine people took it back. That guy didn`t shoot that
police officer. That I said he did under you know under oath, sitting in
the witness box. I said it, I meant it, I was wrong. How often does that
happen, that kind of thing, seven people out of nine pulling back?

SCHECK: Well, that many recantations, it does not happen very often.
And as Congressman Barr you know pointed out, it is the fact that initially
the eye witnesses in this case didn`t really have a good opportunity to
observe. But what is even more disturbing is the police took them back to
the scene. A number of them and had them all talked together and say,
where were you all. And then one of them said no, you were here, you were
here, you were here and they all talked together.

Now Chris, just two weeks ago we won the landmark decision from the
New Jersey Supreme Court on new standards, on new methods for doing eye
witness identification procedures. Because we do know from science, some
best practices would have prevented it. One of the things the court talked
about, and it`s true across the country, one of the last things that you
would ever do is bring all the witnesses together to talk about what they
saw. That is a total no-no. In addition to that, the police were showing
single photos of Troy Davis to these witnesses, again, another no-no.

So, you know, we know a lot more now about how to at least minimize
eyewitness misidentification, the single greatest cause for the conviction
of the innocent and we`re going state by state. We`re getting cooperation
of the police. I can tell you that police officials in Georgia that we
work with, who are instituting some of these eyewitness reforms tried to
make their views known about this board of pardon of parole about this case
and there, that`s about it.

A former parole commissioner Buddy Nicks (ph) has now come out
publicly that he also communicated to the board of paroles and pardon here.
That he had a lot of trouble with this case.

You know, the safety valves of these boards of pardons and paroles not
working and continues that story that I was telling you, we can now prove,
we have a DNA test, post execution in the case of Claude Jones that shows
that the evidence did not support of conviction of this guy. And the
tragedy of it is that President Bush on December 7th, 2000, was not even
told by his legal staff that this guy, Jones` lawyers had been seeking the
DNA test. We finally found it through a press lawsuit years later.

And this issue is not going to die, Chris, because it`s coming up in
the campaign. There`s very substantial evidence that Governor Rick Perry
in 2004 excused Cameron Todd Willingham, not withstanding the fact that he
had an expert report beforehand that I can`t believe he ever seriously
examined, or he certainly did not have any other expert look at that should
have at least led him to stay that execute. And we now have definitive
proof that the Joe (ph) testified in that case perjured himself about being
offer to deal. Cameron Todd Willingham`s case has been examined by a lot
of people. And there`s very substantial evidence that Governor Rick Perry
executed an innocent man, something that he`s going to have to explain in
this campaign when people such as yourself begin to examine the evidence in
that matter because it`s ordinarily upsetting.

MATTHEWS: Let`s go back to this case. I will follow up on that and
you have intrigued me there, but let me go to this case. How that nine
witnesses, see this murder take place op-ed a police officer? Were they, I
understood they were at a hamburger joint late at night it was the moment
at 1:00 or something. They were all inside looking out the window. Just
imagine looking out the window into the dark. How do you see something
like that happen? Did they all come out and watch it? I mean, how close
were these nine witnesses to that crime?

SCHECK: They were from varying different distances. But as you have
accurately been saying all day, seven of them recanted, right, and were
subject to suggestive procedures. The eighth is Red Cole (ph), the guy
that everybody said committed the crime and that certainly the defense`s
theory, but the ninth witness, right? He was I think almost like 110, 120
feet away, and I can show you scientific analyses that even that far away,
even in perfect lighting conditions with 20/20 vision, you cannot see the
features on somebody`s face.

MATTHEWS: Yes. I find it stunning because I think people are a
little bit groggy, anyway that time of night. It was the middle of the
night, right?

SCHECK: Yes.

MATTHEWS: And you`re sitting in a burger joint before you go to
sleep, you go home. And something happens a good distance away, you see
two men, three men involved in. Two involved in the beating up of this
guy. Then another guy comes along, and they all happen to be watching at
the window whatever, at the scene at the time. I just wonder about that.
Well, that`s the kind of thing we`re trying to figure out all these years
later.

Anyway, Barry Scheck as always, it`s great to have you on. We will
follow up that other case as you come back with us. I do find that
interesting about Perry. I always wonder these Texas governors said how
quickly they reviewed these cases and whether it even makes sense for
somebody of average legal competence who is not even an attorney, while
this case maybe one. No, he was not an attorney. I`m trying to figure out
these cases like opening up a jacket, and all the stuff is not even in
there.

SCHECK: Chris, you read David grand`s award-winning piece "trial by
fire" in "the New Yorker" two years ago and review the evidence in the
Cameron Todd Willingham case, and I assure you, this is going to be a major
issue in this presidential explain, because there`s substantial evidence
that Governor Perry executed somebody that was innocent, and even worse
still, when there was a follow-up investigation by the Texas forensic
science commission, he removed the commissioners and attempted to cover up
what happened.

MATTHEWS: OK. We`ll have you back to that. More information that
everybody, suspend your judgment about that. You`ve been intriguing. You
just heard something very intriguing. Let`s figure it out as we hear
balanced views on that.

Barry Scheck, Thank you sir for coming on with that.

SCHECK: Thank you,

MATTHEWS: And Bob Barr, it`s great to have on this very intriguing
and perhaps very disquieting for have tragic evening for justice.

The war from Texas, white supremacist gang member Lawrence Brewer has
been executed for the dragging death of an African-American man James Byrd
Junior 13 years ago. Byrd was chained to the back of a pickup truck, we
all knew about this, in one of the most grisly hate crimes. We all
remember this one. We`ll be right back with a report from the scene in
Jackson, Georgia. You`re watching "Hardball," only on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS: Alright, 7:43 in the east, 43 minutes after Troy Davis was
set to be executed. Let`s go down to the prison in Jackson, Georgia with
NBC`s Thanh Truong. Thanh Truong. Thank you Mister Truong. Thanh, tell
us what`s happening right now.

THANH TRUONG, NBC NEWS CORRESPONDENT: Chris, from my vantage point
right now, we just saw the sunset over the crowd here and there`s a large
massive crowd lining highway 36, its Georgia diagnostic prison here in
Jackson, Georgia. And it`s actually right across from a struck stop. And
there are hundreds of protesters and supporters for Troy Davis right now
lining highway 36. On the order side, on the side of the prison at this
point, there are dozens probably close to more than a 100 riot police in
full gear at this point on hand more of the preempted and kind of
preventive measure at this point in case anything breaks out.

There is a delay in this execution, as you know right now. We`ve been
trying to get updates from the Georgia department of corrections. We just
spoke with a spokeswoman a while ago. She said right now they`re some kind
of delay. They`re waiting. She assumes to hear some type of word from the
U.S. Supreme Court whether this execution moves ahead or is now again
delayed for the fourth time in so many years.

And right now, we are seeing a lot of people chanting. There have
been sporadic cheers and then moments of silence. And so we are trying to
make out what`s going on here at this point. A lot of people are waiting
for any type of word coming in at this point. And the mood right now is
very sensitive as you can imagine. So many people are now supporting Troy
Davis. Hoping that this execution doesn`t move forward, but inside the
execution chamber right now, three of the surviving family members of the
officer Mark MacPhail, the officer that was murdered in 1989, whom Troy
Davis was convicted for that murder, they`re inside hoping to witness this
execution, and they say this is their justice. They say they`re not
thirsty for blood, but thirsty for injures. For 22 years they said they`ve
been living with this. The surviving family member said that they
understand there are some doubts, but they don`t believe those doubt are
credible. They said that Troy Davis is the killer. They believe they
killed or he killed office MacPhail and its time that right now justice is
served.

So, at this point, we are still waiting for any type of word. Again
riot police here are on hand, full sure force here on one side. On the
other side, hundreds and hundreds of protesters are waiting to here for
some type of word for this executions going to be forward or not. Chris?

MATTHEWS: Thanh, Thank you for doing this great report tonight. How
do you people, how do you possibly, I guess it`s a tough charge, how do you
put together the what we`ve been hearing all night, some people convinced
of the guilt of this convicted man, Troy Davis, other who keep talking
about how all the witnesses have recanted. How can they both points of
view be credible, both points of view?

TRUONG: Well, that`s hard to discern. And the point of view from the
family and also from the original prosecutor in Chatham County, the
district attorney, he says, look, this is the situation. This has gone
through the process. These same witnesses who has been, who drawn so much
focus and so much attention at this point, they`ve gone to the process
under oath. They testified that Troy Davis was the trigger man. Shot
officer MacPhail in the face and the chest while he was trying to help a
homeless man.

And now, many of those, on the side of the MacPhail family, many of
them part of the fraternal police organization, and also the MacPhail
family and of course the prosecutors say, look, this is outside the court
system. Why are we to believe these witnesses now when they`re not under
oath and there is no type of legal process that they have recanted on this
situation?

Obviously on the other side, on its face, you have to see it from the,
I guess the public opinion and a lot of people right now are operating in
that court of public opinion. They say you really can`t take this at face
value. Because understanding the situation and understanding the
circumstances that this was late at night, and that now we`re relying
heavily on the witnesses and the testimony of these witnesses that they
have recanted, so you have to take it for what they have said.

And at this point it`s a he said/she said almost, but seven of the
nine witnesses as at stands have come forth and made statements now that
they believe that Troy Davis is innocent. They say they were coerced by
police, one man saying he was too young at that time. He was intimidated,
intimidated by the police and so he told them what they wanted to hear.
Another witness later said he made up the whole confession and said he just
made it up on what he saw and heard on TV. So, at this point, you have two
opposing sides that are trying to reach the same goal which is justice.
But obviously they have different opinions and different philosophies on
what that justice should be at this point. Chris.

MATTHEWS: Great reporting. Thank you for Mister Thanh Truong. We
have a man for greater reporting. Thank you for coming on, Thanh Truong of
NBC done in Georgia.

Let`s bring in MSNBC Political Analyst Gene Robinson. He put surprise
winning a columnist for "the Washington Post." Gene thanks for joining us.

We also have Michael Smerconish joining us right now from radio talk
show. He is a contributor here. Thank you, Michael.

Both of you, I mean both of you looked at this from different lenses
in trying to figure out this case. I wonder if it`s about facts at this
point, if it`s not about penchant point of view. Because it seems to me
this, I said Thanh did a great job there. The facts presented at trial.
Under intense light of prosecution, defense under oath, with a jury
watching, the guy was convicted with nine witnesses saying show with
apparently showcasing and matched them with the previous crime. All, it
sounds like a pretty easy case to be a jury on, you know. And then all
these years later, it`s like disappearing ink. The quest is will pen was
wet back then. Then it happened. He was convicted.

EUGENE ROBINSON, THE WASHINGTON POST: Well, he was. You know, look,
I`ll be just flat-out. I think this is an illustration of why the death
penalty is wrong. And it took me a while to get to that position, and you
have to say it`s wrong not just for Troy Davis, but it`s also wrong for the
other gentleman who was excused tonight in Texas, the guy that killed James
Byrd.

MATTHEWS: Which is a famous case?

ROBINSON: Which is a famous case, a horrific case. You could argue
if there is a case in which a death penalty is justified, that would be a
case. But -

MATTHEWS: Talk about premeditated.

ROBINSON: Exactly. Well, yes. But mistakes will be made. There
will be uncertainly. I agree with you there is no perfection in human
endeavor. And this is an irrevocable punishment. You can`t say, oops,
when new information comes out. You just can`t. And it`s gone beyond
discomfort for me to -

MATTHEWS: Do you think the answer is the old Mario Cuomo solution, I
don`t know he`ll call me of done wrong about this. If the juries were
convinced that life imprisonment meant that, that it wasn`t one of these
while you face seven years, you`re on good behavior out in ten or whatever,
you know that kind of thing. And they lost faith in the government
basically to do what it promised to do. The people wouldn`t be so
bloodthirsty about this case because the idea of life in prison is so
horrible to most people to think about.

ROBINSON: Yes but life means life now. There`s no parole in a lot of
states. And I think most states now.

MATTHEWS: So that`s enforced.

ROBINSON: So, it`s enforced, yes.

MATTHEWS: Let me go to Michael Smerconish. You`ve been through the
Mumia case and I`m going to be with you on that one. And that`s a weird
case. Because the guy never actually said he was innocent. But this case,
the guy apparently for years, he said he`s innocent. I don`t know it seems
like a very different case. It seems like a case where it`s really open to
a thoughtful analysis at this point although I bet a lot of murder cases
are.

MICHAEL SMERCONISH, HOST, RADIO TALK SHOW: You know, Chris, I`m glad
you referenced my involvement because the Mumia Abu-Jamal cases arguably
the highest profile of death penalty case in the world. And I`ve served
this pro-bono legal counsel to Maureen Faulkner, the police officer`s widow
for literally decades. And what I have seen in that case, which I applied
to this case, I don`t know the underlying facts of the case that we`re
discussing tonight as well as your other guests that you had.

But what I do know is how evidence and the presentation of evidence,
is being manipulated over time the further you get from the trial date.
And what I`ve seen in the Abu-Jamal case is a complete mischaracterization
of what was presented to the jury. So, I listen to all that`s being said
about it with a very skeptical ear. Because if it`s the same way in which
there`s been a whisper down the lane in the Abu-Jamal case, then I`m
loathed to just buy into these presentation of the facts.

I want to say, one of the things if I may and that is that, you`re
discussing with Eugene not only what transpired in Texas and what`s taking
place in Georgia. But also the trifecta (ph) is what`s going on in
Connecticut as we`re having this conversation. And I`ve paid very close
attention to the petit case.

Today there was testimony about this case, a home invasion. Cheshire,
Connecticut, the padded family where a doctor survives, his daughters are
dead, his wife is dead. Today, they aired a confession, an audio
confession from one of the guys who is now being tried. The other is being
convicted of how an 11-year-old had to perform oral sex on this dirt bag
before he tied her to her bed and set the house on fire and it was a triple
homicide. And I look at a case like that and I say there are some
circumstances that are so egregious where this punishment is appropriate.

MATTHEWS: I agree with you completely Michael as I often do. Yes?

ROBINSON: Appropriate, absolutely, and I won`t argue with Smerc. But
do we do it? I mean, you know and to me it`s taking that step knowing that
over time when you look at all the executions, maybe there are only two
mistakes. Maybe there are only five mistakes. Maybe there are only 15. I
also agree with Smerc that evidence does degrade over time and there must
have been a convincing case against Troy Davis presented at trial. It`s
been scrutinized over the years. But how much uncertainty is enough? And
I don`t know how to answer that question. But I do know that you can`t
take it back and that`s my problem with this punishment.

MATTHEWS: You know, the trouble is, one thing I don`t think we should
try these cases by public opinion, whether it`s the duke across team or is
that guy from the IMF, the French guy. The public opinion, the way the
press covers these cases, no way to decide guilt or innocence. It`s a
hopelessly improper way to do it. And we`re not doing it here tonight, we
are just trying to find out what`s going to happening tonight. Thank you,
Gene Robinson and thank you Michael Smerconish for your humility and what
we understand here.

When we return, we get an update on the Troy Davis case from NBC`s
Pete Williams. You`re watching `Hardball" on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS: Now, we`re looking at the scene down in Georgia right now
outside the prison facility where there has been apparently a long delay
now, almost an hour, in the execution of Troy Davis. Let`s go right now to
NBC news justice correspondent Pete Williams. Almost 8:00, Pete. Almost
an hour after the scheduled execution time.

PETE WILLIAMS, NBC NEWS JUSTICE CORRESPONDENT: Right. Well I think
they`re doing down in Georgia, Chris, what we`re doing up here which is to
see what the U.S. Supreme Court is going to do. It`s been now about two
hours since the lawyers for Troy Davis asked the U.S. Supreme Court to stop
the execution while they prepare to appeal his case for the second time to
the U.S. Supreme Court. So that`s what`s pending here. A technically
known as a request for a stay of execution and we`re simply waiting for the
U.S. Supreme Court to decide whether to grant that stay or to deny it.

Now, in the meantime, the state of Georgia on its own, which is
certainly has the authority to do decided in essence to wait to see what
the U.S. Supreme Court was going to do. To be clear about this, Chris, the
state didn`t have to. There`s no legal impediment right now that would
stop the state of Georgia from proceeding with the execution. They have
chosen to do this to wait to see what the U.S. Supreme Court is going to do
which is their, which is their prerogative.

Now, the big question is how long is it going to take the Supreme
Court to do this? And of course, we simply don`t know. Last week just by
way of illustration, the U.S. Supreme Court granted a stay in a Texas death
penalty case two hours after the scheduled time for execution. So the
state of Texas decided to wait as the state of Georgia is doing.

I would think, you know, as a practical matter we`ll hear from the
court tonight. I would be stunned if the court waited until tomorrow to
respond. They certainly will, I would almost certainly think respond
tonight. But when, I just can`t say. Nobody knows.

MATTHEWS: Well, can they acquit? Can they have a retrial? How far
can the Supreme Court go tonight? How much latitude do they have?

WILLIAMS: It`s a yes or no question. Will you grant the stay of
execution or not? That`s all that`s before the court at this point. So
they either grant the stay in which case the state can`t proceed with the
execution,

MATTHEWS: Ten seconds.

WILLIAMS: Or they`ll let it go forward.

MATTHEWS: Thanks, Pete Williams. It`s great reporting as always.
Thanks. Pete Williams, NBC justice correspondent. Stay with MSNBC
throughout tonight, tonight as you get further updates throughout the
evening on live developments of this case in Troy Davis down in Georgia.

As I said, you`re looking at the scene at court at the prison right
now. That`s "Hardball" for now. Thanks for being with us.

"The Last Word with Lawrence O`Donnell" substituted tonight by Martin
Bashir coming up right now.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY
BE UPDATED.
END

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