and so do we. and so does troy davis. and so does the family of officer mark macphail. "the ed sh good evening, americans, and welcome to "the ed show" tonight, live from minneapolis. the execution of troy davis has been delayed. you are looking at a live picture just outside the prison in jackson, georgia. the united states supreme court is deciding whether or not to issue a stay of execution. davis has been on death row for 22 years following his conviction for the murder of a police officer. but advocates say his guilt has been seriously challenged. ben jealous of the naacp is standing by and will join us later in this broadcast. joining me now is nbc news justice correspondent, pete williams. pete, what is the latest? where are we at this hour? >> we have five hours since the lawyers for troy davis asked the supreme court to grant a stay of

execution and put the whole thing on hold while they ask the supreme court to take up an appeal of his case. about a half an hour after that request was made, lawyers for the state said there was no need to grant a stay of execution, there was no need for the supreme court to take up the case, the issues had all been thoroughly litigated and his lawyers were basically coming in too late. now, that's all we've heard from -- we've got no indication from the supreme court what it's going to do or when it's going to do it, though my own view is, i would be very surprised if the court doesn't do something tonight. of course, i've been saying this for the last three hours. but the justices obviously know the gravity of the situation. they realize that this is a serious case. they want to make sure they get it right. the problem is, the legal documents that were filed with the court tonight are the barest of bare bones. two pages each from the lawyers for troy davis and the state. the lawyers from troy davis basically say to the supreme

court, look, we're going to file an appeal and we want you to take a serious look at it. and while you're thinking about it, put a stay on his execution so you'll have time to look at it. but they haven't yet filed their appeal. they haven't given the supreme court much to go on here, so the justices are probably looking at the lower court record and thinking of what the likely issues will be. they're somewhat familiar with this case, because, of course, there's been at least one appeal to the u.s. supreme court a couple of years ago, and the court sent it back down to the lower courts to consider some issues that the state now says have been thoroughly litigated. so i just think the court is going to do something tonight, simply because they're aware of what's going on. the picture that you see, the fact that the state is waiting. the victim's families are waiting. troy davis' family is waiting. they know what they're up against here, but they obviously want to take time to get it right, and so we're simply waiting for the justices to act. >> and pete, what if they do

grant the stay tonight? what happens next? >> reporter: that's an easy one, ed, what that would basically say is, there's a stay of execution in this case until we, the supreme court, decide whether we're going to take up the case. the lawyers will file briefs for both sides, several weeks would go by, a couple of months, maybe, and then the supreme court would say, okay, we're going to take it. the stay will continue until we decide the case or we're not going to take it, the stay would evaporate, and then the legal impediments would be removed for the state of georgia to proceed with the execution. now, i have to point out, ed, that there are no legal impediments now. the request to the supreme court for a stay doesn't, in fact, or legally stop the state of georgia from carrying out this execution, if it wants to, but it's obviously chosen on its own to wait and see what the supreme court's going to do. >> nbc news justice correspondent pete williams with us here tonight. thank you, pete. great reporting throughout the evening. i appreciate it. >> reporter: you bet.

>> we'll bring you the latest developments as they happen. meanwhile, in washington, republicans have brought the federal government to the brink of another shutdown. this is "the ed show." let's get to work. >> it's pretty clear that the president's decided to forgot his role as president and leader of our nation in a time of economic uncertainty. >> the republicans are now declaring all-out war on the american jobs act. they're threatening another shutdown. and they're denying disaster relief. tonight, senator bernie sanders of vermont, congressman jim mcdermott of washington, and congressman bill pascrell from new jersey. meanwhile, boehner and his cronies sent a blackmail letter to the federal reserve bank. congressman barney frank is here to respond. the romney/perry fight is getti getting nastier than ever. and ted hargett prayed away the gay and now he's doing wife

swapping. daily show creator liz winsted is here. john boehner and eric cantor are whining again about president obama's proposal to make millionaires pay their fair share. boehner, cantor, and the rest of the republican party have been in a nonstop campaign mode since obama took office, and now the tan man is accusing the president of not being a leader. >> watching the president over the past couple of weeks has been a bit disappointing. and it's been a bit disappointing because it's pretty clear that the president has decided to forget his role as president and leader of our nation in a time of economic uncertainty and to begin the campaign for his re-election some 14 months away. >> boehner has held the speaker's gavel for almost ten months and is yet to produce one piece of legislation to create jobs, just for the record. the tan man's political hit man is using the same talking points. here's eric cantor. >> the president has made a

decision that he's going to go into full campaign mode now 14 months before the election. and that's fine. that's his decision. but what he's going to find when he goes traveling out to republican districts across the country is he'll learn that people don't want their taxes raised. >> you know, if they were in the radio business, they'd be playing the same song over and over again. once again, cantor doesn't know what he's talking about. according to a new gallup poll, 66% of americans are in favor of increasing income taxes on people earning over $200,000 a year and families earning at least $250,000. only 32% are opposed. to the president has republicans, i think, right where he wants them, if you want to talk about the campaign trail. boehner and cantor accuse president obama of waging class warfare on the rich. the president shot back on the class warfare talking point last night in a big way.

>> you're already hearing the republicans in congress, dusting off the old talking points. you know, you can almost -- you can write their press releases. class warfare, they say. you know what, if asking a billionaire to pay the same rate as a plumber or a teacher makes me a warrior for the middle class, i wear that charge as a badge of honor. i wear it as a badge of honor. >> president obama's $447 billion jobs bill is on the table, and so is the largest spending cut in american history. if boehner and cantor want to play politics on creating jobs for america, president obama, well, he's ready to join the fight. >> we have been a nation of responsibilities to ourselves, but also responsibilities to one another. and we've got to meet those responsibilities right now. so maybe some people in congress would rather settle these differences at the ballot box. i'm ready to settle them at the

ballot box. i intend to win this next election, because we've got better ideas. >> john boehner has no business accusing president obama of not being a leader. earlier tonight, boehner couldn't round up enough republican votes in the house to the pass a bill to keep the federal government from running through the month of november. more than 50 of boehner's republican members rejected the plan because the bill didn't have deeper can cuts. they wanted more. democrats rejected the bill because of eric cantor's provision for spending offsets to pay for disaster relief for victims of hurricane irene. congress is headed for yet another vacation next week, so boehner needs to quickly try to round up enough votes to keep the government from shutting down. the american people have had enough of this crap from congress, i think. that's why they have a record disapproval rating at this hour. americans, what do they need?

jobs. and president obama is the only adult and politician in the room that has a plan on the table. mr. bayoehneboehner, that is wh leadership is all about. where's your plan? where's your solution? get your cell phones out ppt i want to know what you think. tonight's question, who is more of a leader -- president obama or house speaker john boehner? text "a" for president obama, text "b" for speaker boehner to 622639. you can always go to our blog at ed.msnbc.com and comment and i'll bring you the results later on in the program. joining me tonight is vermont senator bernie sanders. senator, good to have you with us tonight. the votes that john boehner could not gather to pass this, is this just, really, the radical being even more radical than boehner? how do you read it? >> it is. i think as right wing as boehner is, he cannot control his even more right-wing extremists.

but the main point, ed, here is the point you just made. this country today has 16% real unemployment. 25 million people without jobs or underemployed. what the country is demanding is a real jobs program to put the american people back to work. the republicans have nothing to say, except the same old mantra, let's give more tax breaks to billionaires and let's cut programs for working people and the vulnerable and the sick. so i think the president is now -- i'm sorry? >> well, i want to ask you about president obama. i mean, he is saying things he has not said in the last three years. he's being very aggressive, he's taking it to them. is it too latittle, too late? >> i don't think it's too late. you and i have been chatting for months about how we want to see

this president stand up and make it clear he's prepared to take on the big money interests, prepared to take on the multicorporations. those guys are doing phenomenally well. corporate profits soaring, richest people doing better than thaifr ever done while their effective tax rate is the lowest in decades. meanwhile, we have massive unemployment. what the american people want to hear the president say, and he's beginning to say it, is we're going to put people back to work, we're going to ask the wealthiest people in this country to start paying their fair share of taxes. also, i would like to say, ed, as somebody who is the chairman of the defending social security caucus, i have been very concerned about some of the language coming from the white house over last couple of months. i am delighted, delighted to hearing the president saying he is not going to cut social security, he is not going to cut benefits for medicare. that's an important step forward. what the president is now doing is making sense in terms of good public policy and i think he's talking the language that the american people, especially working people, want to hear

from their president. >> senator, great to have you with us tonight. you have been a stalwart in the fight, no question about it. thank you. let's bring in now congressman jim mcdermott of washington and bill pascrell, joining us tonight out of the state of new jersey. great to have both of you with us. congressman pascrell, boehner not being able to get enough votes. what do you with make of that tonight? >> he can't control his own caucus, it's quite obvious. 50 votes going south on him. you know, i'm from jersey, so we're going to fight this out. we're going to get the money that we need to get to help not only new jersey, but the 52 other -- the 52 districts throughout the eastern seaboard and the 15 states that were hammered by irene. i agree with governor christie of our own state that this is not a time to have politics. we have never done this during tornadoes, hurricanes, snowstorms in dakota.

americans come to help americans. they don't affect democrats or republicans, these storms, they affect everybody. if you go through my district, which is probably one of the hardest hit of all of these 52 districts, ed, you'll see that people can't get back into their homes. many of the bridges have probably been really, really minimized, so that we cannot use them any longer. we need that money from fema and we need it up-front. because we don't know what the real damage is in this storm. we do not know. we have no idea of the health matters, the environmental matters, let alone the destruction on our streets. so for the republican party to try to put a string attached to this emergency money, which we've never had before, i'm not going to accept that. >> well, congressman mcdermott, we've known all along that they're a radical bunch, but today, i think, it's a new chapter. i mean, john boehner could not get enough votes, because he didn't go deep enough on spending cuts.

is there any limit that these republicans -- what is the limit that they'll go to? is there any line drawn that they will stop, just continuing, pounding away? it's all about defeating president obama and stopping government at this point. that's what it seems like. your thoughts? >> well, mitch mcconnell said it a year and a half ago that his job was to prevent the president from being re-elected. and they will do anything, as they did today. if you will take hostage people who have been ravaged by a hurricane and ravaged by an earthquake in the central part of the united states, or in the eastern border of the united states, you are willing to take anybody hostage. they have no scruples whatsoever. this is a religious element in the republican party that john boehner has absolutely no control. he's not running that thing anymore. it's being run by the radicals,

who are basically knneo lists. they donate want government, they don't think government should solve anything. god did it and god will fix it and they don't want to use the government. >> is there going to be a special session, congressman mcdermott, this weekend? you're scheduled to be gone next week, congress is going to adjourn. what do you make? the fact of the matter is, we're headed for another shutdown unless there's action. what do you think? >> i think there will ultimately be enough adults in the room who understand what america is, and that we take care of people when we need to take care of them and that we want jobs. when you think about the fact that you got increasing home foreclosures, even today, in my district, one of the districts that's done very well, you know this country is in problems, and there are enough adults who are going to say, we can't close the government down. that's crazy. we will get the votes and get out of there. >> i want to ask both of you, quickly, congressman pascrell,

what about president obama? now, taking it to the wealthiest americans. isn't this a slam dunk for the democrats to support him on this, saying that the wealthy americans have got to pay more? i mean, is he going to get enough support from his own party to push this through? what do you think? >> the answer to the last question is yes. he really punched everybody in the nose who wants to do nothing last week in his speech. and i think the republican party has to understand that the americans want to put politics aside and get people back to work. and we can do that best if we put our heads together. but if you have an attitude that the president can do no right, your own president, and you saw that, ed. on the day of the speech, mr. boehner said, why should we, americans, be forced to watch a politician when they'd rather be watching a football game? and i say to mr. boehner, you are a coward, of the worst

extent, to talk about our president in that manner, shape, and form. you respect the president. he's all of our's president. >> gentleman, we could talk all night. congressman jim mcdermott and bill pascrell with us tonight. be sure to answer the question at the bottom of the screen, we want to know what you think. house republicans send an unbelievable letter to the federal reserve chairman, telling him to stop helping the economy. barney frank joins me to talk about that. and we are watching events as they unfold outside a prison in jackson, georgia. the united states supreme court is currently deciding the fate of a man whose supporters absolutely insist his innocence. ben jealous, president of the naacp on the troy davis case, coming up. stay with us. [ beep ing ] ♪ hush, little baby ♪ don't you cry ♪ soon the sun ♪ is going to shine

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reporting that the supreme court has denied a stay of execution. for more on this, let's go to pete williams, nbc news justice correspondent. you're looking at pictures right outside the jackson facility in jackson, georgia. pete, it's being reported by reuters that the supreme court has moved on this. what do we know? >> well, we're all reporting that, ed, and it's a very brief order from the court, as these are. i will read it to you in its entirety. it says, the application for stay of execution of sentence of death presented to justice thomas and by him referred to the court is denied. that's it, that's all it says. let me just explain what that means. the way these emergency applications work is they go first as a technical matter to the circuit justice, that's justice clarence thomas for that federal circuit, the normal practice is for the circuit justice to refer the matter to the full court, and the full

court decides whether to deny it. we don't know what the vote is. we never know in these cases, and that's all we ever get, is a simple one-sentence order. now, sometimes in these things, other justices will write separately to say, you know i would have granted this, and here's why, but we don't have that here. and obviously the court wanted to get this out without waiting for other justices to write. so as it's been -- as has been true all night, there are no legal impediments now for the state of georgia to go ahead with this execution if they want to. they could have done this at 7:00 tonight. they apparently decided on their own, as their own matter, to wait for the supreme court to decide on whether to grant this stay, and now we know the answer. the court is denying the request for a stay of execution, and that's it. there's nothing more that his lawyers can do now. >> pete williams, what do you with anticipate happening now?

will the execution take place tonight or will they set another date and watch the clock tick again? this has been absolutely gut wrenching to watch. what do you think's going to happen, pete? >> well, as a legal matter, the setting of the date of execution is for the courts to do. the execution date has been set now. so i can't imagine that a new execution date would be set. i would think now that the state of georgia will go ahead with this tonight, starting soon. >> and that, of course, it is now 23 minutes after the hour, the tenth hour in the p.m., and it would seem to me that it would happen at any moment, they would begin the process. this has been -- >> i would think so. >> -- you called it. you said that the supreme court would move quickly on this. what about that? what about the timing? is this pretty normal for them to move on something like this, and to be so brief about it? >> well, the brief part about it is no.

this is what all denials of a stay look like. the grants would be slightly longer if they decided to grant the stay request, but all denials look like that. they're always just one sentence long. they never give reasons, they never give votes. that's the way et goes with these requests for emergency applications. so this is standard form. you know, is it unusual? yes, that the supreme court would issue an order 3 1/2 hours after a scheduled execution time, yes. but, remember, they only got this request about 4 1/2 hours ago. they got it around 6:00. so -- and they didn't have a lot of legal documents to go on. the request from his lawyers was two pages long. it basically said, this case has problems, it would be wrong to let the execution go forward. please stay the execution, to give us some time to give you a full brief on why you should take his appeal. well, with very little to go on, the supreme court had to take

some time. the justices, i'm sure, wanted to take some time to get up to speed on what the issues were and decide if that's something that the supreme court should take a look at. and so that's, i think, why it took so long. but, you know, no, it doesn't usually take this long, but i think it did, because it came less than an hour after the scheduled execution time, with very little for the court to go on. >> i think will take a stab at this, that there might be some americans out there tonight, somewhat surprised that the recanting of testimony of seven of the nine eyewitnesss had noeskt on the supreme court. your thoughts on that? >> you know, all i can say is that what the supreme court looks at, what the supreme court doesn't have just absolute ability to reopen cases. it is bound by federal law, by something call eed the anti-terrorism and effective death penalty act. the federal law sets a pretty

high bar for what it takes to get the supreme court to stop an execution and hear somebody's appeal on a case that has been so thoroughly chewed over and litigated. the point you make is a very good one. i think a lot of people wonder why this is going forward, but strange as it may seem, it's a different legal question that comes to the supreme court. it's a different legal threshold that has to be met. and frankly, from that perspective, i don't think it's surprising that the supreme court has done what it's done tonight. >> and pete, what would the state of georgia do? just go forward with the execution without any announcement, or would they set a time and then begin the process? how do you think this would work and would we get any word from them in any way on that? >> my guess is that they will simply go ahead now without making any announcement. they may or may not. my own guess here, with very little to go on about how the state of georgia does this, is that they would -- they've already got everybody in position that has to do this deed. so they will simply resume where

they were three hours ago and go ahead with the execution and probably not make any public announcements until it's over. that would be my guess. >> pete williams, thanks so much. and you see it, folks, nbc news reporting, pete williams, the supreme court denying the stay of execution of troy davis, the execution will take place. let's turn now to nbc news correspondent thanh traung in jackson, georgia. this news is starting to filter through the crowd. what's the reaction? >> reporter: first, can i tell you, as i was listening to you and pete talking, ed, here's how the process is going to move ahead right now. i just got confirmation from the department of corrections here, there was a spokeswoman that came through and she said it's going to take about 20 to 30 minutes to get everybody in place for this execution. inside, you'll have media witnesses and also three members of the macphail family that we have confirmed will be inside.

they have said that they will be witnessing this execution. from there, the execution will take place, and she says after it's taken place, they'll come over here, which is an area of the diagnostic prison here in jackson, georgia. they'll give us a confirmation that the execution has taken place. the witnesses, the media witnesses and then if the macphail family, the witnesses on that behalf of family, will come forward and make any statements, if they choose. so the timing right now, they believe it's going to take place within 20 to 30 minutes. they have to gather everybody that's going to be involved in this execution in place, inside of the execution chamber, and then they'll move ahead and proceed with the lethal injection. we're anticipating right now that there'll be some word maybe within the hour. but, again, we're working on that time frame, that's going to take about 20 to 30 minutes. i can tell you that the mood here all night has been very tense, and when there was word that the stay had been denied, it got even more tense.

there are hundreds of protesters and supporters, many coming out in support of troy davis. the diagnostic prison is on one side, the other side is a truck stop, but lining that highway are hundreds of supporters. on the other side, on the prison side, there is a huge show of force, more than 100, i would say, right now of georgia riot police, in full gear, anticipating -- and this is more of a preventative measure, i don't think it's a situation where they're trying to intimidate, but they're trying to have as many hands on deck as they can, in anticipation of any outburst, of any violence. of course, this is a very emotional time for many of these protesters. in the pit area, which right now i can see, and you'll be later talking to ben jealous with naacp, that area right now also has the family, three family members i've seen of troy davis', his sister and also a nephew as well. and this has been a very long night for them. so the emotions, obviously, on one side, so many praying for

the life of troy davis to be spared, but inside that execution chamber, obviously, you have the macphail family. they've been trying to get what they call justice, and they point out that throughout this whole process, they haven't been crying for blood. they're not blood-thirsty. they say they've been thirsty for justice, ed. >> nbc news correspondent thanh truong with us tonight on the scene in jackson, georgia. let's bring in now ben jealous, president of the naacp. ben, your reaction to the news as the united states supreme court has denied the stay of execution. your thoughts? >> this is a sad day for our country. when you can have the former director of the fbi come forward and say, stay this execution, you can have former republican congressman and prosecutor bob barr come forward and say, stay this execution. you can have six former death row inmates, including dr. alt, the former ward of this prison,

come forward and say, stay this execution, not to mention a million people, more than a million people around the world signing letters and petitions saying, stay this execution, and yet, our nation, our nation's highest court still lets this go forward, it's a very sad day for our country. it's a day really probably history will show to be a game changer. a day where, one day, people who thought they supported the death penalty woke up the next day and questioned how they could support it any longer. but right now there's a very specific tragedy happening. i mean, what we understand here in georgia is that they will go forward. it hasn't been confirmed, we can't see inside of death row, but that certainly is the mood here, the expectation here, that they're preparing in there to ask guards to hold down the left leg and the right leg, the left arm, and the left arm, as they

inject troy davis and kill him amid much doubt. what's been very clear here, with among dr. king's old church and so many others, is that we're calling on everybody to remain calm, to show the same discipline and poise that davis' family is showing, to really use this as a moment of reflection and solidarity, a time to recommit one's self to the nonviolent struggle for justice in this country. we have seen in the last 20 years this country take dramatic steps towards abolishing the death penalty and we expect what happens here tonight will propel that movement forward even faster. >> why would this execution be any different from any other? there have been so many in contemporary times, ben. you said that this is going to be the start of a movement. reverend sharpton also said that earlier tonight on this network in coverage. why would this be the start of something moving forward that would be any different from any other effort? >> in the more than 15 years that i've been working off and

on, on capital cases, i've reviewed thousands, been involved in one way or the other with dozens or maybe hundreds, and never seen a case like this where there was so much doubt, where there were so many people to come forward and say that they lied. where the inmates or the man's story of innocence was so consistent. where so many people looked at it, including former directors of fbi, former wards of this prison and said, there's just too much doubt here. this really is a special case. you have to look back maybe to the case of carl chessman in the 1950s to find one where the case of innocence was both as compelling and evoked such global attention. and the reality is that this case, because it struck that very deep chord in our people, all people in this country, republican, democrat, black, white, death penalty supporters, death penalty opponents, that court of justice.

this case is such a clear case of injustice, it's struck a deep chord in the conscious of this country. and for millions of people that will never be able to look at the justice system again. it's one of the most remarkable things about troy davis is that he kept faith in the justice system, right up to this moment. that he implored people to hope for a miracle. that he refused his last meal again, confident that in the end, the justice system would do the right thing. and as it seems to so many people here, it's just not what has unfolded. >> ben, i have one more question for you, but i just want to tell our audience tonight, watching msnbc, if you just joined us, the united states supreme court has denied the stay of execution of troy davis, and execution of troy davis will take place tonight. there are no legal avenues available at this hour for his attorneys to take and the state of georgia is going to move forward, as it was reported earlier, it's going to take

about 20 to 30 minutes to get people in place for that process. but ben jealous, the president of the naacp, i do want to ask you one more question. seven of the nine eyewitnesss recanted their statements, said that this man was not responsible for the death of officer macphail. in your opinion, could you tell us how you feel about the supreme court tonight not paying attention to that. >> i believe that the supreme court tonight has paid attention to the limits of the letter of our constitution and ignored the spirit of the constitution and the nation. the reality is that we have no constitutional guarantee against the execution of the innocent. but the reality is that we, as americans, believe that as a nation, we do not execute innocent people. we do not execute people when there is a shred of doubt, and here there is a bucket of doubt, there is a flood of doubt. that's why we've seen the former head of the fbi come forward. that's why we've seen the former

number two in george bush's own doj come forward. that's why we've seen the former ward of this death row come forward and all call for a stay. and my heart right now goes out. it goes out to the macphail family who lost a hero 22 years ago. it goes out to the davis family who is sitting here, feeling helpless as their loved with one is murdered inside those prison walls. and it goes out, really, to the children of this country, who deserve to grow up in a country knowing that justice is done here. and the reality is that, tonight, it is very hard to find that anything but that justice has failed us, the supreme court has failed us. >> naacp president, ben jealous, stay with us. let's bring in now jeremy skahill. jeremy, thanks for your time. what makes this case so unusual? what strikes you about this case? >> well, ed, you know, i got

involved with this case about four or five years ago. i met troy davis' sister, martina kraya, and i spoke on a panel with her about wars at broad and wars at home, and i just spending an hour with her and her breaking down the case about her brother, i as a journalist, but also as an american, couldn't believe what i was hearing, and started looking at it myself, and i've come to the conclusion that troy davis is guilty of no crime and he was innocent of the charges against him. that he did not kill officer macphail. >> what brought you to that conclusion? jeremy, what -- >> yes. well, when you have -- >> what brought you to that conclusion, i need to know that. >> when you have the fact that there is a viable suspect, sylvester red coles, who said he is the man who shot officer macphail that night. when you have the fact that troy

davis was treated in a different way when the eyewitnesss were being presented with photographs of the suspects. when you look at the vast majority of the evidence against troy davis, and you realize that there was no physical evidence presented against him, and that seven of the nine nonpolice eyewitnesss recant their testimony at a minimal, as a responsible american, you have to say, our country has no business putting that man to death. i don't believe that -- he is innocent, and i'm ashamed, ed, i'm ashamed of our country, because this is not what america is supposed to be about. and my heart goes out to troy davis' family and also to the macphail family, because the real killer is walking around, ed, and that's something that needs to be repeated over and over about this case, there's not justice for that family either. >> jeremy, how did the prosecutor get a conviction if the evidence is so overwhelming that he, in your opinion, is innocent? how did they get a conviction? >> if you actually go back and you look at the history of the trials and the appeals here, what it boils down to is that

you have several witnesses who say that their testimony was either coerce ordinary that they were somewhere pressured into saying that troy davis was, in fact, the killer, when they now say that they didn't see him. so i think there was at a minimum police misconduct or at least serious allegations of police misconduct, and i think when you had the original trial, it appeared that there was overwhelming evidence against troy davis in the form of eyewitness testimony. but eyewitness testimony is fallible, as we see from these recantations. the other point, though, is that there was no physical evidence linking him to that crime, and it seems as though the police didn't even want to pursue leads on other suspects who were also spotted at the scene and had told other people that they were involved with it. so i think that on first glance, what often happens in death penalty cases is that the individuals are poor, they have public defenders who are overwhelmed by these cases, they don't have the budget or the resources to pursue the best defense they could have under the law, and only after their case generates some attention do

top legal minds step in and say, we're going to take a closer look at this. and that's exactly what happened in troy davis' case. this was a fairly poor, young black man, in a southern state, who basically had lawyers that didn't have the money to go up against the whole system. and i think that's a big part of why they were able to get that conviction against him. when you have this kind of doubt, though, raised, under our legal system, with that should be sufficient for us to say, we are going to step back until a closer look can be taken at this. i think the supreme court, you know, erred. i think they were right the last time they stepped into this case and said that this new evidence needs to be presented. at a minimum, troy davis should have been given a new trial. that didn't happen. >> well, why did the supreme court do what they did tonight? so brief, so quickly, and with unusual circumstances that seven of the nine witnesses recanted their testimony. >> right, i mean, in talking to legal analysts about this, not just over the past couple of weeks, about this case, but over

the years, i think the supreme court did much of what it could have done the last time that it reviewed this case. and the fact is that it would have really required the board of pardon and paroles in the state to come forward and stop this. it's very unusual for the supreme court to intervene twice in a case of this nature. and i think that, you know, i could give you my theories as to the viewpoint of various justices. what i found that was sort of stunning about this, my understanding is that it was unanimous. that there were no dissenting opinions on this. and i think some people had help out hope that some of the justices appointed by president obama may have stood up in this case, realizing that there were so many extenuating circumstances, too much doubt, as so many people are saying on twitter, that they would have impacted it. but, you know, i think from a legal perspective, most people did not believe the supreme court was going to step in and issue a stay, and of course, they didn't. this is just one of the darkest days in our country in a long time. you could say, well, it's one

man and there are thousands of people dying in wars around the world, but it also cuts to the heart of what kind of country do we live in? do we live in a country that executes people when there's that much doubt? and that's why i say we should be ashamed tonight, ed. it's not just one man. in a way, it cut a hole in the heart of our justice system by moving forward the execution of troy anthony davis. >> jeremy skahill of "the nation" magazine, who has been following and reporting on this for several years. the execution was scheduled for 7:00 tonight and the united states supreme court, if you're just joining us, has denied a stay of execution for troy anthony davis and we are anticipating that the execution will take place tonight. let's bring back naacp president ben jealous, who i think would characterize this as a miscarriage of justice. ben, if you can be our eyes and ears out there tonight. how is the crowd reacting to this news? >> people are praying, they're

coming together. some are sitting by themselves, sorting this out. this is a deeply personal moment in many ways, because it's a moment when your heart breaks, when your faith in our justice system is challenged, when our nation's greatest court has just deeply disappointed millions of people. one of the most terrifying moments of my day today is sitting next to a woman named keyana glover. we were on cnn together and she had just come out of hiding. she had went into hiding when the board of pardons and parole did the wrong thing because sylvester red coles had threatened her, threatened her just a few months ago, because she made clear that she intended to come forward and tell the world what he had said to her and others one night a few years ago when he was drunk and the case had heated back up, and he admitted that he had killed officer macphail.

he had one of the remaining two witnesses, one of the original suspects, and there are many people who have come forward and said, he did it, he's admitted to it. and there's a sense that the georgia justice system really didn't care. this woman actually savannah, fearing for her life. and here 22 years later, it's still happening. justice must occur, but it must be precise, and we have to make sure we're killing the right person. and when our nation rolls forward amongst this much doubt. when the former death row ward says there should be a stay, the former director of the fbi says there should be a stay, it's hard for any of us to have faith that the justice system is as precise as it must be if we're going to be in the business of executing people. >> well, ben jealous, i have to ask you tonight, if there is someone stepping up, saying that they know that this man did not doe it and seven of the nine

people recant their position on this case and there's someone who's willing to be in a position to say that they know who the killer is, where's the curiosity of the prosecutors? where is the justice in the system that someone did not go forward from a prosecution standpoint to make sure that someone who could be innocent is not going to be executed. there just seemed to be such a failure of the system here when all this extra information comes out, 22 years after the fact. your thoughts? >> you know, and really, it's been coming out for years. and there's been an absolute lack of curiosity on behalf of the district attorney in savannah. you know, really, you know, got kind of a glimpse into the culture among some law enforcement here, when i sat down with the ward here and asked him to let "60 minutes"

and msnbc and cnn and others who had expressed interest several weeks ago. and he ended the conversation by saying he had been on law enforcement in savannah 22 years, as if this should matter. as if a former law enforcement official in savannah, he shouldn't be more interested than anybody in making sure that the right killer is brought to justice. justice has to be precise. when justice becomes blunt, when it just seems like anybody will do, then we've slipped into vengeance of the worst kind. and the reality is that the supreme court of the united states should not be in the business of allowing sacrifices to move forward. and that's what this may be. when there's this much doubt, we just may be simply killing the wrong person for the sake of killing somebody. and that is terrifying. >> president of the naacp with us tonight, ben jealous, outside the facility in jackson, georgia. joining us now, let's bring in the cofounder of the innocence project, barry scheck, joining

me by telephone tonight. mr. scheck, your response tonight news tonight that the united states supreme court has denied the stay of execution of troy anthony davis? >> well, it's a very tragic day for our country. i think it's now clear to everyone in america that our capital justice system is broken. you know, boards of pardon and parole are supposed to act as a safety valve for the system. as a very famous case, herrera, out of the united states supreme court, where scalia and thomas in their dissent saying that there was no need to recognize actual innocence as a federal constitutional claim. they said, you don't have to worry about it, because we've these clemency boards that will act as a safety valve. the governors at the last minute will act as a safety valve, and those cases where there's real and substantial doubt that we might be executing an innocent person. that did not happen in this case. and it's really tragic, because,

now everyone in the world, frankly, sees how bad this evidence was. i can understand where the supreme court, from a legal perspective, was not going to revisit this case, because under, you know, their rules, they would need overwhelming proof of innocence to set it aside, but that's not the function of a board of pardon or parole. when they have a case where there's this much doubt, this much new evidence, not just in the recantation, but in the forensic evidence. i mean, everybody agrees that the ballistic evidence in this case, one of the jurors told the board of pardon and paroles that was critical to her verdict, was unreliable. the georgia bureau of investigation admitted that. there's so much wrong with this case. what they just should have done is said, we're going to give him clemency, we will not execute this man, we'll keep him in jail for the rest of his life. that would have been the sensible decision. and you just wonder why, why

that isn't true, why that didn't happen, and there's a lot of, unfortunately, in our system, a lot of people just want to say, we won't admit a mistake. if we give him life without parole, that is admission of a mistake and people will begin to doubt the legitimacy of the system. and quite the contrary. people have got to doubt the legitimacy of this system if a man could be executed when there's this much doubt about his guilt. >> mr. scheck, were you surprised by the supreme court response tonight? >> no, i wasn't surprised from the supreme court response, from a legal point of view. because as your prior caller -- prior speaker, mr. cahill, i guess, from "the nation" had indicated, that they had interviewed twice in this case, they had taken the very unusual step of granting an original writ, that's something that hasn't happened in over two decades, and the burden of proof

that would have to be met of actual evidence, clear and convincing evidence that he's innocent, such that they would put the whole case aside, that really wasn't going to be met in this instance. but the real breakdown here in the final analysis is with the boards of pardon and parole. this is just not a case where there should have been an execution. and i want to point out, ed, and all the viewers who are out there should know, is that in texas, we've had two instances that illustrate the problems in this system. on december 7th, 2000, while george bush was waiting for the recount in florida, he executed his last prisoner, a man named clyde jones, unbeknownst to president bush, jones' lawyers had asked for a mite continued rile dna test on a piece of

hair, and the texas court of appeals had ruled 3-2 that you couldn't execute or even sustain this conviction unless that hair is the independent corroborating evidence. well, a few months ago, the innocence project and the texas observer, we were able to get a dna test on that hair that demonstrated that it did not come from claude jones, it came from the victim, and that means, legally, there was legally insufficient evidence to sustain that conviction. and what's extraordinary about it is the president didn't even know. bush didn't even know that this request had been made. and then, of course, there's the case that i hope you will be covering as the president campaign continues, and that's of cameron todd willingham. >> i heard you spoke of that earlier tonight. there's so much there. we do know this. that if we did not have the death penalty in this country, only, we wouldn't be in this situation tonight. we'll find out if this is a turning point for this country

in the way we view this. this has been gut-wrenching to watch and i think that there are, as i speak tonight, i think that there probably are a lot of americ americans really wondering if this man is guilty and did our system really fail? is this the number one case to point to in our judicial system and in our country's history that tells us that we are going down the wrong road? barry scheck, we've got to move along, of the innocence project, we appreciate your time tonight. and thank you so much. we'll have more on this breaking news, the united states supreme court has denied the request for a stay of execution of troy davis. stay with us. it's nice 'n easy colorblend foam! permanent color with tones and highlights. now in a delightful foam. just three shakes, foam it, love it! it's foamtastic! new nice 'n easy colorblend foam. your right color.

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to be executed some time tonight. joining me now from our washington bureau is nbc news justice correspondent pete williams. pete, your thoughts at this hour, the way this all unfolded. we keep hearing from all of the people that we're visiting with tonight on the network, that this case is so different. this case has got overwhelming, you know, evidence in it, presented by people thinking that, you know, this man is innocent. has there ever been any other case that would parallel this in your opinion, that we've seen unfold like this? >> it's hard to think of a parallel like this. a case that has received so much attention and so many people concerned about the fairness of what happened in the state court, given that so many people that were witnesses have changed their minds over the years and said that they did not see what they testified to in court. i guess the least surprising part of it, though, ed, is what

unfolded tonight in the supreme court. remember that this was extensively litigated, there were round and rounds and rounds of appeals, so that by the time it came for the supreme court to step in, it was, in essence, too late. he'd already been to the supreme court once. there really wasn't anything that new to raise to the supreme court that hadn't been raised before, and i think that's probably why the supreme court didn't take it. we'll never know, but they probably felt there was no new handle that they can grab on to. and of course, under federal law, the supreme court doesn't have a free-roaming warrant to just go and open up a death penalty case. again, federal law restricts very closely when the supreme court can reopen a death penalty case like this. so the only thing that's surprising, i guess, a little bit, is that it took four hours for the court to reach this conclusion. but the lawyers really sort of came rushing into the court,

figuratively speaking, less than an hour before the scheduled execution date, and said, please stop the execution. well, that's asking a lot, really, and finally, after four hours, the supreme court issued this very brief, one-sentence order. this is the least surprising part of it in its entirety, that the order is so brief. that's the way they tend to be in these cases. it simply says, the application for a stay of execution presented to the court is denied. we never know in these cases why the court acted the way it did. we don't know what the vote breakdown is. this isn't a full-blown decision in a case, so you don't know how each justice voted. this is a simple order of the court, but, of course, a simple order that has a very big consequence. >> pete, drawing on your experience and your professionalism, can you give us an idea of what kind of conversations maybe the justices had tonight? you said four hours, we know

that. what do you think took place in that four-hour time frame? how much conversation do you think there was? how might it have gone down? >> and remember, the court isn't in session right now. the regular term for the court is still in the summer session. regular supreme court term won't start for a little over a week now, about ten days from now, the first monday in october. so the justices are all over the place. some of them, i don't, frankly, know where they all were tonight. some of them probably in town, but i can guarantee none of them were in the court building tonight. but the court has a regular mechanism for keeping in touch with the justices in a case like this. my guess here, ed, is what the justices had to decide first of all is, is there a reason that we would take this appeal again? that was the threshold question. are there four justices who believe that we should hear this appeal yet again? if there are, then the thinking probably went, all right, then we should grant the stay.

in other words, my guess is that that was the sequence of thinking. not, okay, shall we grant the stay, and then should we take the appeal? it doesn't work that way. my guess is they had to first decide whether there was enough new for them to take this appeal once begin. and i think we know the answer to that, the answer to that is no. >> nbc news justice correspondent with us tonight, pete williams. pete, thanks so much. we'll have more breaking news coverage after this. the united states supreme court has denied the stay of execution of troy anthony davis. he will be executed this evening by the state of georgia and we will have more coverage as we continue. you're watching msnbc. xe