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The Rachel Maddow Show, Transcript 09/21/11

Guests: Pete Williams, Thanh Troung, Dahlia Lithwick, Ben Jealous, Frank Rich, E.J. Dionne

RACHEL MADDOW, HOST: I eagerly await the arrival of that erudite woman. Martin, thank you very much for that. That was very kind. Thank you at home for staying with us this hour as well. We do begin with the breaking news that Martin mentioned tonight out of Jackson, Georgia. Troy Davis was scheduled for the fourth time it be executed at 7:00 p.m. Eastern tonight. But at this hour, Troy Davis is still alive. The state of Georgia temporarily delayed his execution while the United States Supreme Court considers tonight whether to review a request for a stay of execution. Troy Davis was convicted of killing off duty Police Officer Mark MacPhail in August 1989. Mr. Davis sentenced to death after a trial in 1991. But since that trial, seven of the nine witnesses who claimed to have seen Troy Davis shoot Officer MacPhail have recanted their testimony - - seven of the nine. Three of the jurors in the case now say they would not have voted to convict him if they knew then what they know now. President Jimmy Carter, Pope Benedict, Desmond Tutu are among the figures calling for clemency for Troy Davis, but the Georgia Board of Pardons and Paroles declined the class for clemency and today, the Georgia Supreme Court denied a stay of execution. But again, at this hour, despite a 7:00 p.m. execution hour tonight, Troy Davis is still alive. His execution on a temporary hold while the United States Supreme Court decides whether or not to consider the request for a stay of execution. Joining us now is NBC News justice correspondent Pete Williams. Pete, thank very much for joining us tonight. What can you tell us about what is expected from the Supreme Court? PETE WILLIAMS, NBC NEWS JUSTICE CORRESPONDENT: Well, what`s expected is an answer to the question, will you grant the stay or not? It`s a simple question and it will get a very simple response whenever the court is ready to do it. It`s been about three hours now since the lawyers for Troy Davis filed their emergency request with the Supreme Court asking for a stay of execution. What this basically means is the lawyers are telling the Supreme Court, look, we intend to appeal the case, but until we do, would you please put a hold on the execution while all of that is in process? It`s not an unusual request in these death penalty cases although it does come very close to the time for execution. There is no time limit here. But what`s clearly happened is that the Georgia officials, although they had every legal right to proceed with the execution, have decided to put it on hold. Or to put it another way, there`s no legal impediment to Georgia proceeding with the execution. But they`re waiting to see what the Supreme Court says. If the Supreme Court says there`s a stay on the execution, then it`s off. There will have to be a new execution date set, depending on what the Supreme Court decides to do with the appeal. But if the Supreme Court denies the stay, then the state could go ahead. We went into a similar situation last week in Texas, Rachel, with a death penalty case with just the Supreme Court ultimately did grant a stay of execution and it came two hours after the scheduled execution time. So, you know, the court does this when it`s ready and we just don`t know when that will come. I would think, though, that it would be tonight. MADDOW: This is the fourth time that Troy Davis has had an execution date set -- as you know, Pete. Based on what we know about the case up until this point, what we know would have been the basis for the request for the stay from Troy Davis` lawyers tonight, are you able to make an even educated guess as to what the Supreme Court might ultimately decide based on how they have considered this case in the past? WILLIAMS: No, because, you know, it`s -- the court did have this case last time, sent it back to the lower courts. And they have to decide whether in their opinion the lower courts did what the Supreme Court wanted them to do. Did they adequately address the issues that the court sent back to them? Did they get their homework done is the question? Now, part of the problem here, Rachel, is that this -- the lawyers for Troy Davis have filed papers with the Supreme Court. The state has responded. That`s a total of four pages between the two parties. There isn`t much to chew on for the Supreme Court here. Normally, when you seek a stay of execution, you separately file the reasons why you think the court should take the case, the guts of the appeal. That hasn`t been filed with the court yet. So, there`s not a lot for the court to consider at this point, at this hour. So, it puts the court in a very difficult position. They have to try to look back at the lower court record to see what some of the issues are. It`s a very, very difficult question. It`s not an unusual one for the Supreme Court -- it`s not an unfamiliar one I guess I should say because this does happen from time to time. And there`s a whole mechanism at the Supreme Court for handling these emergency appeals. There are people in the clerks office who do nothing but this. But it`s a difficult thing because the court doesn`t have the benefit of the regular kind of appeal that you would file. It`s just a very bare, you know, please give us a stay. MADDOW: While the state of Georgia is still awaiting word one way or the other from the Supreme Court, as you mentioned, Pete, there`s no legal impediment to them going ahead with the execution. They could decide to do that at any point. When states have this sort of interaction the Supreme Court over an execution like this, is it generally accepted practice that they do wait for the Supreme Court? That they do not make a decision to go ahead an their own when there could be at the last moment some word from the Supremes? WILLIAMS: I think the best answer is some do and some don`t. We`ve had cases where executions go ahead, even though there is a stay of execution request pending before the Supreme Court. We`ve had cases like this one, like the one in Texas last week where the state waits out of deference and to make sure that all the legal avenues are, in fact, exhausted. So, it`s really -- it`s a really a matter for the states. Obviously, Texas does a lot of executions. It has the record of the most in the nation and they do wait. That has been their pattern. I don`t -- I`m not familiar enough with the execution system in Georgia to know whether they have a habit of waiting or not. But I would think, again, that, you know, the Supreme Court is well aware of what`s going on at you see in those pictures right now of all those people waiting. They know there`s a whole mechanism going on in Georgia. There are people waiting, family members waiting on both sides. They know that. So, I -- you know, my sense is they`ll try to get this done as quickly as they can. But it is a very serious question and that`s why they`re not rushing. MADDOW: NBC News justice correspondent Pete Williams who has been on the story for us tonight at great length. Pete, thank you for staying with us tonight. Appreciate it. WILLIAMS: Sure. MADDOW: Dahlia Lithwick joins us. She is "Slate" magazine`s legal editor. Dahlia, thanks very much for joining us. I appreciate you joining us tonight on so much short notice. DAHLIA LITHWICK, SLATE (via telephone): My pleasure. MADDOW: What do you know about the grounds on which the Supreme Court will be making this decision tonight? How many people will be in on the decision? Will it be the justices, themselves, or their clerks? And what exactly will they be deciding? LITHWICK: Well, we don`t know much. You know, the petition that we`ve seen is incredibly bare bones, Rachel. And it more or less just says, you know, you need to stay this because we`re filing a petition and it`s going to be irreversibly awful if you execute him before we get this to you. So, there`s a sort of host of bare, bare bones, allegations. In the petition, it says newly revealed evidence reveals false, misleading and materially inaccurate information was presented at the trial in 1989. The convictions and death sentence are fundamentally unreliable. But I cannot stress how bare boned this is. So, in effect, what they`re saying is, just give us time to get something in front of you -- and I think that there`s a host of allegations we`ve been hearing, you know, over the course of the day, that there are allegations that the denial of the polygraph test today is something they`re talking about with the court that Troy Davis wanted to take a polygraph and wasn`t allowed to. That there are questions about a witness who was intimidated and that the real culprit here was intimidating one of the witnesses. So, there`s around the margins we know s there`s a lot of moving parts. As to the question of whether the justices, themselves, are looking at this, I would bet that they are. You know, this is the third execution this week that they`ve stopped. And something is clearly going on at the court where they`re starting to think very, very hard about these cases and I think the justices, themselves are thinking about this right now. MADDOW: Dahlia, in terms of people who shave been following the story for a long time or been aware this has been a fiercely contested death penalty case for a very long time, can you explain why it would be at this very last hour, what`s turned into the Supreme Court would be such a bare bones document? One might expect they would have been prepared for a long time for last minute appeal to the Supreme Court. LITHWICK: Well, the nature of the death penalty system and the capital system is you can`t bring all sorts of new pleas in. You can`t bring in new evidence at the last minute. You know, there`s pretty much everything they could have brought to the court, they`ve brought. Don`t forget, this is the fourth scheduled execution for Troy Davis -- so almost every issue has been litigated. And so, I think, really, there was until this morning, a very strong sense that there were no issues that could go up to the Supreme Court at all. In some sense, it`s a surprise that this document both made it to the court and that the court is taking it as seriously as it appears to be taking it. MADDOW: Dahlia, last question for you. And this isn`t precisely a legal question but a question about the legal system. Do you think that the immense public attention to this case, the publicity surrounding it, the advocacy around this case, the symbol that Troy Davis has become as well as being the object of so much specific attention, is it possible that that -- if there`s any way to -- I guess is there any way to quantify how that has affected his legal chances of the state of Georgia`s efforts to kill him? Does it help him or hurt him to have so many people outside the prison right now with his name and his face on placards, to have so many highly visible people weighing in on this case asking the state not to kill him? LITHWICK: You know, it`s such an important question, Rachel. And, of course, it`s just speculation. On one level, the courts are the one institution that aren`t meant to care that there are people standing with placards, that public opinion is what it is, that this is trending on Twitter. Public opinion doesn`t matter at all to courts. But I think we`d be insane to think at every level of this process with the growing, not just national outrage, but real international outrage -- you know, you`ve got Desmond Tutu, you`ve got the Pope, Jimmy Carter, Bill Sessions, former FBI chief -- every one of those people with all the clout that they have brought to their opposition to this death penalty, certainly is on the court`s radar at some level. Certainly everybody is thinking, this is a referendum on the death penalty in America. This might be the biggest death penalty case in a decade and we are deciding more than just factual questions about whether Troy Davis had a fair trial. So, I think you`re right to say, of course, all of this energy and momentum, this ground swell of opposition, at some level is playing into the thinking about this. Remember, we need five votes from the court. So, the question really is whether there are five people who are thinking about that or even just one extra person who`s thinking about that. But I think it`s certainly the case, like I said, when you`ve seen executions stayed like this and dramatically in a two-hour lag right now where we don`t know at all what`s going on, it is so rare for the court to be doing something like this. That it tells me that the court knows something very, very important is afoot. MADDOW: Dahlia Lithwick, legal editor for at "Slate" magazine, and someone who I always felt has a knack for putting legal things in a very human perspective -- Dahlia, thank you for joining us tonight. I really appreciate it. LITHWICK: Thank you, Rachel. MADDOW: We turn to NBC correspondent Thanh Truong. He joins us now from front of the Georgia Diagnostic and Classification Prison in Jackson, Georgia. Thanh, thanks very much for your time tonight. Can you tell us what the scene is like outside the prison? The mood out there right now? THANH TROUNG, NBC NEWS CORRESPONDENT: Well, the mood is very heavy and thick. I mean, it`s a muggy, humid night tonight. But the atmosphere is very heavy with anticipation. Hundreds of protesters right now. Mostly supporters for Troy Davis are lining Highway 36. That`s the main thoroughfare running through Jackson. And this area, this diagnostic prison is one side. On the other side of the highway is actually a truck stop, a very busy truck stop. But all along that highway right now is a massive shows of protesters in support. On the other side, on the prison side, we see more than 100 riot police, Georgia riot police, right now in full gear. Behind them, dozens more deputies -- that`s more of a preventive measure at this point. They`re anticipating depending on the decision there may be outbreak of violence, or perhaps more protests at this point. But they want to be prepared and on hand for anything that may happen. Inside, I`m looking right now from my vantage point, I can see a pit area where the Georgia Department of Corrections has cordoned off protesters. Right inside is the family of Troy Davis. And I saw a couple of his sisters and also his nephew. And speaking to them throughout, in the days leading up to this execution, they`ve been saying, look, this is not just justice for Troy Davis but they believe because there`s another man, they believe another man committed this crime. They believe that in seeking justice for Troy Davis, they believe that they would be giving justice to the family of Officer MacPhail who was shot and murdered in 1989, that set this whole situation into motion at this point. The surviving members, three of the surviving members of the MacPhail family are in the execution chamber and we had a chance to speak with them during the process and after the clemency hearing on Monday. And they basically said, look, this has gone through the process already. These witness testimonies that were before a jury were under oath and in a court of law, they don`t see why they should now be taking an invalid stance because it`s outside of the court process. They believe that Troy Davis is the killer and he deserves death. They`ve been repeating this kind of mantra almost, that, look, they`re not thirsty for blood. They`re thirsty for justice. They said that, look, this was an officer trying to help a homeless man who was fought in the face and chest while trying to help that homeless man. And this at this time, more than 22 years later after the murder, it`s time for justice and they believe that serving the death sentence to Troy Davis is justice. MADDOW: Thanh, in terms of the real human drama playing out there physically at the prison, where Troy Davis awaits execution, his execution as you know set for tonight at 7:00 p.m., now awaiting word from the Supreme Court -- in terms of how people are interacting with the news there, how has information been reaching the crowds out there tonight? Information about the delay and Troy Davis` status? How are people hearing about things? And is it a prayerful and quiet response, a boisterous response when new information reaches the groups? TROUNG: We`ve been hearing chants then cheers then just lulls and real long periods of silence. A lot of people right now are relying on their BlackBerrys and whatever device they can connect to the Internet. I spoke to Amnesty International folks. She`s been getting texts and people giving her updates in that manner. So, this is almost instantaneous. But the one thing she does kind of hammer home is that none of this is confirmed at this point and so when something hits the Internet, some people may want to run with it. But there hasn`t been an official word right now of whether this is going to be delayed, stayed, so on and so forth. So as people get these updates, there are moments that people are cheering and they believe that this execution is going to be delayed even further. But then you hear these long lulls of silence, because, again, we`re still waiting to hear some type of answer from the Supreme Court. MADDOW: NBC news correspondent Thanh Truong live at the Georgia Diagnostic and Classification Prison in Jackson, Georgia, doing great work for NBC tonight there, Thanh. Thank you so much for your time. We will be right back with NAACP President Ben Jealous. And also surprising news about why it is that the warden of the prison in which Troy Davis awaits possible execution tonight in Georgia, the warden of the Georgia Diagnostic and Classification Prison, the former warden of that prison, is weighing in and asking Georgia officials to delay, if not stop this execution -- a voice that you would not expect at this part of this case. And I`ll tell you why that is happening when we come back. (COMMERCIAL BREAK) MADDOW: We continue to cover the breaking news -- breaking and unexpected news out of Georgia tonight where Georgia prisoner Troy Davis who was due to be executed at 7:00 p.m. still awaits word from the United States Supreme Court. Joining us next will be Ben Jealous, the president and CEO of the National NAACP. Stay with us. We`ll be right back. (COMMERCIAL BREAK) MADDOW: Georgia prisoner Troy Davis has not been executed by the state of Georgia tonight. As of 9:20 p.m. Eastern Time, Troy Davis is still alive as the state of Georgia awaits word from the United States Supreme Court on whether or not the highest court in the country will grant a stay in this highly visible and highly contested death penalty case. As the delay in the execution became evident tonight, and the protesters outside the prison began to cheer the fact that the awaited time of execution had come and gone, what passed almost unnoticed at the exact same time was the state of Texas going ahead with killing a prisoner tonight -- at the same time that Troy Davis had been scheduled to be killed at 7:00 p.m. Eastern. The prisoner who Texas killed tonight was Lawrence Brewer. Lawrence Brewer was convicted in the racially motivated hate crime murder of James Byrd back in 1998. Mr. Brewer and two of his friends chained James Byrd to the back of their truck. Mr. Brewer and the other main assailant were white supremacists. Mr. Byrd was African-American. The two men beat him then wrapped a logging chain around his ankles and dragged him down a county road more than two miles. Forensics later showed that James Byrd remained conscious for most of the ordeal, tried to prop himself up on his elbows to protect his head and his neck. You can tell that from the damage done to his body. By the way the skin was worn off. Mr. Byrd tried to prop himself up and his elbows to stay alive until ultimately the dragging behind that pickup decapitated him and cut off his right arm. Tonight`s execution of Lawrence Brewer in Texas for the murder of James Byrd, an execution done by lethal injection was the 236th Texas execution overseen by Texas` governor, Rick Perry, now a leading contender for the Republican presidential nomination -- 236 is a record number of executions. The man killed in that attack in Texas in 1998, James Byrd, his wife and his children have been vocally opposed to the state of Texas executing anyone for that killing. Yesterday, James Byrd`s son, Ross Byrd, told "Reuters": "You can`t fight murder with murder. Life in prison would have been fine. I know he can`t hurt my daddy anymore. I wish the state of Texas would take in mind this isn`t what we want." In Mississippi this week, the state charged a teenager there with capital murder. Daryl Dedmon, Jr., age 19 is accused of being part of a gang of young people who set upon an African-American man in a Jackson, Mississippi, parking lot this past June. Police say the teenagers, all of them white, left a party and went out looking explicitly and deliberately to mess with someone who was black. They say that after coming across James Craig Anderson in that parking lot in Jackson, Mississippi, and beating him, 19-year-old Daryl Dedmon deliberately jumped a curb with his pickup and ran over James Craig Anderson and killed him. As in the case of James Byrd`s wife and children in Texas, James Craig Anderson`s family in Mississippi wants no one executed for that crime. The victim`s family last week wrote a letter to the prosecutor and to the attorney general of the United States asking for mercy for his alleged attackers, "Those responsible for James` death not only ended the life of a talented and wonderful man, they`ve also caused our family unspeakable pain and grief. Our loss will not be lessened by the state taking the life of another. As Coretta Scott King stated in explaining her opposition to the death penalty, an evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the taking of human life." "We also oppose the death penalty," the family said, "because it historically has been used in Mississippi and the South primarily against people of color for killing whites. Executing James` killers will not help to balance the scales. But sparing them may help to spark a dialogue that one day will lead to the elimination of capital punishment." ABC news is now reporting that the prosecutors in the James Craig Anderson case in Jackson, Mississippi, may not seek the death penalty in the case because of the stated wishes of James Craig Anderson`s family. But in the state of Georgia, officials spent the day today planning to kill one of Georgia`s prisoners. Troy Davis was convicted in the killing of an off duty police officer named Mark MacPhail in 1989. Officer MacPhail was trying to stop a beating in a parking lot in Savannah, Georgia, when he was shot twice, once in the heart and once in the face. Troy Davis insists that he was innocent of this crime. On three prior occasions, the state of Georgia set Troy Davis` execution date and on each occasion, he was granted stays of execution. This time, the fourth time, as the hours ticked away, thousands of protesters gathered to protest the execution outside the prison in which Troy Davis is held and in cities around the world. They`ve been demonstrating for weeks against this execution. They were joined in opposing it by some rather famous people. Some of those famous people were names like you might expect, Pope Benedict because the Catholic Church opposes the death penalty on principle. Others were something of a surprise, though. For example, Bill Sessions, who was appointed FBI director by President Ronald Reagan. This week, the Georgia Board of Pardons and Parole denied Troy Davis clemency and then they declined to reconsider that decision. The board heard three hours of testimony by the defense about witnesses who later recanted their stories and jurors who are no longer sure that Troy Davis should be convicted. The slain police officer`s family was also at the pardons board hearing. They called the defense of Mr. Davis, quote, "a lie" and said there was no was doubt that Troy Davis is guilty. They said, quote, "We are ready to close this book and start our lives." And, quote, "We need to go ahead and execute him." As we have been reporting tonight, the execution of Troy Davis was scheduled to begin at 7:00 p.m. Eastern tonight. Just moments before that time, news broke that officials at the Georgia prison in which Troy Davis is being held and in which Georgia has its execution chamber, officials at that prison had gone into what they call a temporary delay while they waited for word from the United States Supreme Court. Not a stay, a delay. Georgia is legally able to go ahead with this execution at this point, but they are choosing to wait for word from the U.S. Supreme Court. Georgia is essentially saying, hold on a minute, not yet, we will wait to hear from the federal court. Today, phenomenally, a group of retired prison officials from Georgia, Ohio, Florida and California, including the former warden of the prison in which Troy Davis is being held and in which he would be killed, all former prison officials with experience carrying out the death penalty wrote to the State Corrections Department in Georgia and to the state`s governor asking that they stop what might be the execution of a man whose guilt is still in doubt for many. Quoting from the letter "We write to you" -- this is, I find this to be unexpected and quite remarkable. "We write to you as former wardens and corrections officials who had direct involvement in executions. Life few others in this country, we understand that you have a job to do in carrying out lawful orders of the judiciary. We also understand from our own personal experiences the awful lifelong repercussions that come from participating in the execution of prisoners. While most of the prisoners whose executions we participated in accepted responsibility for the crimes for which they were punished, some of us have also executed prisoners who maintained their innocence until the end. It is those cases that are most haunting to an executioner. We write to you today with the overwhelming concern an innocent person could be executed in Georgia tonight. We know the legal process has exhausted itself in the case of Troy Anthony Davis, and yet doubt remains. This very fact will have an irreversible and damaging impact on your staff." Meaning your prison staff. Quote, "Living with the nightmares is something we know from experience. No one has the right to ask a public servant to take on a lifelong sentence of nagging doubt and for some of us, shame and guilt. We urge you to ask the Georgia Board of Pardons and Paroles to reconsider their decision. Should that fail, we urge you to unburden yourselves and your staff from the pain of participating in such a questionable execution, to the extent possible by allowing any personnel so inclined to opt out of the activities related to the execution of Troy Anthony Davis." The letter goes on to request counseling for any staff who do participate in the execution. It is signed by a Georgia warden who formally oversaw the prison where Troy Davis is being held and where the state`s executions take place. It`s also signed by a former director of Georgia`s Department of Corrections, as well as the wardens of several other death row prisons around the country. This, of course, is not about which murder victims` families take the position you happen to agree with, if they call for execution, for closure, or for revenge, or for their sense for justice, or which family`s call for mercy and restraint in the hopes of one day ending the death penalty. The point of this is that families -- even the families of victims may get a say in this but do not get to generally decide these things. Whether to kill a person convicted of murder -- whether or not to kill a person convicted of murder or whether to let that person live, that may be influenced by the wishes of a victims` family in some cases. But in the end, it is decided by a representative government in our name. And then those decisions are carried out by real individual Americans who work for the government for a living -- real people who like everybody else in these stories has to live with the consequences. When we come back, NAACP President Benjamin Jealous joins us from outside the prison where Troy Davis is awaiting a decision from the United States Supreme Court. We`ll be right back with our continuing coverage of this breaking news story. (COMMERCIAL BREAK) MADDOW: Georgia prisoner Troy Davis was scheduled to be executed by the state of Georgia at 7:00 p.m. Eastern tonight. At 7:00 p.m. Eastern approached tonight, it seemed like the avenues available to avert his execution had been exhausted. But then the 7:00 p.m. hour arrived and passed without action by the state, as word came down that the United States Supreme Court was considering whether or not to review a request for a stay of execution. The Supreme Court has stopped or at least delayed two executions in the past week, Cleve Foster and Duane Buck, both Texas prisoners. And now, as of 7:00 p.m. Eastern tonight, the Supreme Court has at least delayed the execution of Troy Davis, perhaps the most attention getting death penalty case in this country in the past decade. Joining us now from outside the prison in Jackson, Georgia, where Troy Davis was scheduled to be executed more than two hours ago is the president and CEO of the NAACP, Ben Jealous. Ben, thanks very much for being with us tonight. It`s nice to see you, my friend. BEN JEALOUS, NAACP PRESIDENT: Thank you, Rachel. It`s always good to be here. MADDOW: I understand you were with Mr. Davis` family when they received news of the delay this evening. Can you tell us what their reaction was? JEALOUS: This is a family that`s always repaired for a -- something unexpected to happen, for, you know, their faith to be vindicated. And last night, Troy for the second time refused his last meal. He had done this several years ago. And that faith, again, bore out. And so, they were prepared for both possibilities. They didn`t know whether they were coming to witness a miracle or a funeral. They were prepared for both. MADDOW: In terms of the victim`s family here, the relatives of Officer MacPhail say the efforts to cast Troy Davis as a victim of a miscarriage of justice here are not only not things they agree with, but that they feel like they have been victimized by the length of time it has taken to resolve this case and that they feel hurt by the continued protestations of Troy Davis` guilt when they feel like he`s been convicted justly and they would like to see him executed. How does that affect your feeling about advocacy for Troy Davis and movement to support him, which the NAACP has been so involved with? JEALOUS: We`re very clear that Officer MacPhail that he was a hero. That MacPhail was a hero. That night he did not fail to do his duty though he was off duty. That he went and saved a homeless man and lost his life in the process. And yet, as our heart goes out to the family, we know that justice must be precise, that we cannot in this country allow people to be executed amid so much doubt. And I personally have reviewed thousands of cases in my career. I have worked on capital punishment issues off and on for more than 15 years. We`ve never seen a case like this before where the case for innocence was so compelling. Where you had seven of the nine eyewitnesses -- and, you know, the only thing that put them on death row was their word. Seven of them, one way or another have now admitted they lied. You don`t see cases like this often. And I wish -- I wish that the city of Savannah would re-open the case, would look at all of the suspects. I was on CNN today with a woman who lives in fear for her life daily because she says that just a few years ago a man admitted to her that he was the actual killer. This was a man who was a suspect. This is a man who was one of the two remaining witnesses against Troy Davis. And she says he admitted he was the actual killer and he just a few months ago threatened her life and so she fled Savannah. And she finally decided that talking about that threat publicly perhaps would make her more safe. And so, you know, here we are 22 years later, questions, people being threatened. Former head of the FBI coming forward saying there`s too much doubt. Former warden of this prison coming forward saying there`s too much doubt, this is not your usual case. Our heart goes out to the MacPhail family. We want them to have closure. We want them to have peace and we want there to be justice. But Justice must be precise. MADDOW: Ben, I know that this case has been important to you, personally, as well as to the NAACP for a long time. Am I right that in remembering that you have met with Troy Davis, that you have spoken with him personally during the course of his incarceration? JEALOUS: Yes. We were together less than a month ago here at the prison for hours. And, you know, we sat and we talked. We spent a lot of time, you know, talking about his fear of this moment. That he unlike many death row inmates has had four execution dates. He`s come down to the wire, within 45 minutes last time. He can`t take it anymore. He`s a man of tremendous faith. I mean, the man is the most fearless people I know. But you could see a little crack there for a second as he just kind of spoke to his vulnerability as a human. I mean, it is inhumane to go through these four times. You know, with all this doubt, we shouldn`t be here. We should be in a courtroom rehearing this case. You know, he talked about the investment he`s made in his nephew who`s really like a son to him, how -- who has visited him virtually every weekend he`s been in death row. And this is a young man, a beautiful young man. He`s on his way to college. He`s an aspiring young robotic scientist. Maybe he wants to go into biogenetics, very bright young man. He`ll tell you what Troy said, which is that Troy has invested in him, helping him learn right from wrong, helping keeping him motivated, telling him every weekend, you are my biggest investment. We talked about his frustration, that this prison allows the media to get in to talk to him -- "60 Minutes" wanted to get into talk to him, this network wanted to talk to him. You know, so many others, and yet they keep shutting the door. And I confronted the warden. I said, look, what deal can we cut to get in here, get him on the phone and let him tell -- the warden at the end of all that, the warden said, well, you know, 22 years ago I was law enforcement in Savannah. I didn`t know that. I don`t know why that matters. But to him it mattered. This morning, a same warden refused to let Troy take a polygraph test, frankly something that`s a real risk for a death row inmate on your day of execution because everybody can be jittery. Yet, Troy wanted to take it. The inmate -- I mean, the warden said no. This is a remarkable case and it really deserves the full attention of the public that it`s receiving right now. MADDOW: Ben Jealous, president of the NAACP, nationally, joining us from outside the prison in Jackson, Georgia, where Troy Davis was scheduled to be executed more than two hours ago -- Ben Jealous, thank you so much for your time tonight. We`ll stay in touch with you as the case continues to unfold. We will be right back with Frank Rich. Please do stay with us. (COMMERCIAL BREAK) MADDOW: As we continue to cover tonight`s breaking news that the state of Georgia has unexpectedly not gone ahead with the execution of Troy Davis, awaiting word from the United States Supreme Court as the Supreme Court considers whether or not to review a request for a stay of execution. We are joined now in studio by "New York" magazine`s Frank Rich who I will always consider to be the MVP and team captain of America`s liberal political commentators. Frank, it is good to have you here. Thanks for joining us. FRANK RICH, NEW YORK MAGAZINE: Nice to be with you, Rachel. MADDOW: The Troy Davis execution receiving so much attention, so much controversy, even before tonight`s very unexpected developments in this case. There`s a lot of suspense right now. Really everybody waiting to find out what is going it be happening. Nobody expected the Supreme Court to be weighing in at this time of the night in this way. RICH: Exactly. MADDOW: Does this put the death penalty on the national agenda in a way that goes beyond the merits of this individual case? RICH: Well, I think, you know, the word you just used, suspense -- America likes suspense. I think if anything good is coming out of this drama and this sort of circus that`s happening around while we wait for the Supreme Court, is it`s really focused people on a case that really is about the best argument against the death penalty you could possibly muster because there`s so many holes, obviously, in this guy`s conviction. I mean, when you have intimidated witnesses recanting, eyewitnesses recanting their testimony. Plus, the sort of, as you say, this rather abrupt last-minute legal procedure which kind of suggests that the whole process has a chaotic quality even more we knew. So I think it`s going to focus people`s attention on an issue that actually once was a big issue in America and is now sort of, you know, in recent years faded to the back burner -- or at least did until the Republican debate where we had the, in my view, repellent, if not obscene spectacle of people cheering Rick Perry`s record in terms of administering the death penalty in Texas. MADDOW: You know, it was interesting, the night of that debate -- I`m going to forget his name, forgive me. But it was a surrogate for the Perry campaign, a Republican congressman asked about that moment in the debate, explained, you know, it may not have been the most seemly thing for that crowd to have done, but conservatives in America feel defensive and beleaguered over their support for the death penalty. They feel like they have been caricatured and made to feel bad for supporting things like the death penalty. And so, it`s almost a defensive show of pride in something that they ought not feel bad about to have done that. We shouldn`t see it as something repellent. We should see it as a reaction to liberal demagoguery on this issue. RICH: I love a conservative spin artist basically invoking Freud to explain away what was a really crude reaction that shows why people who are sort of bloodthirsty about this are held in poor esteem by so many of their fellow Americans. MADDOW: One issue that is not very political, but I think a pretty deep part of this -- I`m very struck by this letter that written tonight by the former warden of the death house prison in Georgia where Troy Davis is being held. This letter from not only the former warden of that prison, which houses Georgia`s execution chamber, also a former warden from San Quentin, also a former director of the Department of Corrections in Georgia, which, of course, is responsible for carrying out this execution if they do go ahead with it. They wrote a letter tonight to the Georgia Department of Corrections saying, "As former wardens and corrections officials who have had direct involvement in executions, we essentially are asking you not to do this because we are haunted by having participated in executions in which we have nightmares about whether or not the people we executed were actually guilty for the things for which they were punished." RICH: It`s incredibly moving and powerful because these are people who actually execute the machinery of death. And this idea that whatever the circumstances or whatever seems somehow the righteous sense of justice, that the people who do this are not going to be marred or hurt by it or haunted by it is preposterous because they`re human beings, too. And I would say, extend that to the entire country. I think this weighs on the conscience of the country. Even though some people lightly dismiss it or laugh it away, whatever, I think what those people are saying is they`re speaking to their fellow citizens saying this is on America`s soul, too. There`s something wrong with a society that takes life. And for a country where everyone is constantly talking about the culture of life, many of the people on the right who are in favor of the death penalty are very, as they say, pro-life. Well, it`s completely inconsistent and hypocritical and itself expresses how troubled I think people are. MADDOW: Does it also connect to broader American debates, especially the very current debates we`re having right now about the efficacy of government -- when Rick Perry was challenged not just during the debate but in days after the debate, after there was the crowd reaction that you describe, people cheering that he had overseen 234 executions, now up to 236. The way that he explained why he didn`t lose sleep over it and in fact why he was not embarrassed by people cheering for it, he had faith in the system, described the system as having an almost mechanical un- impeachability, that the system should be trusted to do this in an orderly fashion, and that if we believe in law and order, you have to believe in the system that imposes capital punishment. Contrasting what you I think aptly describe tonight as the chaos around this one execution, not knowing what`s going to happen, not knowing the grounds on which the Supreme Court is deciding this, not knowing what will happen once the Supreme Court makes the decision, this awkwardness in which the state of Georgia could right now legally execute Troy Davis before the Supreme Court says anything -- is there a libertarian case to make for the necessary and inevitable chaos of government not being able to be trusted with something as heavy as killing American citizens? RICH: I think there is. And I think that, you know, it`s in the founding of our country, that we`re not perfect. And that we don`t have a perfect system of government. We have an ideal of what perfection would be in administering justice and everything else in our public life, but we don`t have it. And whether it be Webster the former FBI director who was -- MADDOW: Sessions. RICH: Sessions, excuse me, weighed in on this case, or many other, sort of, Republican law and order types are not as firm as Perry is, because they`ve seen the glitches in the system. Look at what happened in Illinois, for instance, with the Republican governor. You know, we know the system is imperfect. We know many incident people have been put to death. MADDOW: And when an imperfect system makes irrevocable decisions, sometimes the way to fix that is to not allow the system to do irrevocable things anymore. RICH: Well, I couldn`t say it better. MADDOW: I could barely say it, frankly. Frank Rich, now with the "New York" magazine -- this was not what I booked you to talk about tonight, but I hope you will come back. RICH: I`m delighted to come back anytime. MADDOW: And it`s nice of you to have stretched to do this. I really appreciate it. RICH: I`m delighted to be here. MADDOW: Thanks. We`ll be right back as we await a decision from the United States Supreme Court. But as of right now, the Georgia execution of Troy Davis, an object of international attention at this point, it was scheduled for 7:00 p.m. Eastern tonight. It has been delayed while we await that decision from the Supreme Court. We`ll stay with it and we`ll be right back. (COMMERCIAL BREAK) MADDOW: Joining us now is E.J. Dionne, "Washington Post" columnist and a senior fellow at the Brookings Institution. E.J., thank you for your time as we continue to follow this breaking news story tonight out of the state of Georgia. E.J. DIONNE, WASHINGTON POST: Good to be with you always, Rachel. MADDOW: Tonight, the reason this is breaking news out of Georgia is because the U.S. Supreme Court is apparently going to weigh in on whether or not they are going to review a request for a stay of execution in the celebrated case of Troy Davis. He has had four separate execution dates set, the most recent being tonight at 7:00 p.m. the Supreme Court apparently weighing that issue. And this is not something on which one justice has to weigh in. We are waiting to hear from a majority of justices. The Roberts court has been a profoundly important influence in the last few years on so many elements of U.S. policy and politics. It has not been the focus of a lot of political discussion, though. Do you think this brings either the court or the issue of the death penalty to national prominence? DIONNE: I think it does both. I think the court got itself a lot of attention with decisions like Citizens United, of course, but I think what you`re -- this decision is important and this whole case has gotten this energy, because it`s in the context of a very slow shift away from the death penalty in public opinion. It used to be, in the early 1960s, about half the country was against the death penalty. Then we had the crime wave of the late 1960s-early 1970s, which really dented faith in the criminal justice system and made people very angry and support for the death penalty grew and grew to the point, where you only had about 15 or 20 percent of the country against the death penalty. It`s bumped back up to a third or more. And I think two things have happened. One, the simple introduction of DNA evidence and the discovery that there very likely had been wrongful executions or a lot of evidence that some executions were wrongful. You had those students at northwestern university who did a lot of investigating, of old death penalty cases. And even people who are for the death penalty on principle don`t want the wrong people executed. And so I think then the Troy Davis case comes along, where there is a lot of evidence of, at the very least, that creates grave doubts about this. I`d probably put it more strongly than that. So, I think this case has captured a shift in mood, and that`s why so many people are exorcised about it. You said it earlier, this is an irrevocable decision and people are having doubts about making irrevocable decisions like this. MADDOW: E.J., I think that`s how I broadly understood public opinion about the death penalty and the salience of a political issue now, until there was that moment in the Republican presidential debate this year, in which the crowd cheered 234 executions. Do you think that that was an aberration, an accurate reflection of a very small portion of the electorate? How do you make sense of that given what you`ve just described of the overall shift of opinion of the death penalty in public opinion? DIONNE: You still have a majority of the country, without question, probably a pretty substantial majority in favor of the death penalty. But the minority against it has grown. So, I was -- I was kind of horrified by cheering for death, but I`m not surprised that there are people strongly for the death penalty. Interestingly, one of the places you`ve seen a shift is among some conservative Christians, and particularly Catholics, because of the position of the church. They are part of the conservative base who have doubts about the death penalty. MADDOW: E.J. Dionne, "Washington Post" columnist and a senior fellow at the Brookings Institution -- E.J., thanks for your time and your insight tonight on this on short notice. I really appreciate it. DIONNE: Good to be with you. MADDOW: We will be right back. (COMMERCIAL BREAK) MADDOW: Unexpected breaking news this evening as there continues to be no decision from the United States Supreme Court on a pending and very controversial execution in the state of Georgia. Troy Davis was with sentenced to death for the 1989 murder of off-duty police officer, Mark MacPhail. Since Mr. Davis` trial, seven of the nine witnesses against him have either recanted or contradicted their testimony and three of the jurors in his case now say they would not have voted to convict him if they knew then what they know now. Despite a scheduled 7:00 p.m. Eastern execution date tonight and despite exhausting all his state-level avenues to prevent the execution, Georgia tonight waits on word from the United States Supreme Court. Georgia is legally entitled to go ahead with this execution tonight, but the state of Georgia has chosen to wait -- and so do we. And so does Troy Davis. And so does the family of Officer Mark MacPhail. "THE ED SHOW" starts right now. THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END