updated 9/22/2011 10:39:06 AM ET 2011-09-22T14:39:06

Guests: Pete Williams, Thanh Troung, Bernie Sanders, Bill Pascrell, Jim McDermott, Ben Jealous, Barry
Scheck, Jeremy Scahill

ED SCHULTZ, HOST: 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?

PETE WILLIAMS, NBC NEWS JUSTICE CORRESPONDENT: We are 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.

SCHULTZ: And, Pete, what if they do grant the stay tonight? What
happens next?

WILLIAMS: OK, that`s an easy one, Ed, because 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, OK,
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 state --
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.

SCHULTZ: NBC News justice correspondent Pete Williams with us here
tonight -- thank you, Pete. Great reporting throughout the evening. I
appreciate it.

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.

(BEGIN VIDEOTAPE)

REP. JOHN BOEHNER (R-OH), SPEAKER OF THE HOUSE: It`s pretty clear
that the president`s decided to forget his role as president and leader of
our nation in a time of economic uncertainty.

SCHULTZ (voice-over): 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 getting nastier than ever. Democratic
strategist Harold Cook has the latest.

And Ted Haggard prayed away the gay and now, he`s doing wife swapping.
"Daily Show" creator Lizz Winstead is here.

John Boehner and Eric Cantor, well, they 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 President Obama took office.

Now, the tan man is accusing the president of not being a leader.

(BEGIN VIDEO CLIP)

BOEHNER: 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.

(END VIDEO CLIP)

SCHULTZ: Boehner has held the speaker`s gavel for almost 10 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.

(BEGIN VIDEO CLIP)

REP. ERIC CANTOR (R-VA), MAJORITY LEADER: 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.

(END VIDEO CLIP)

SCHULTZ: 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 percent 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 percent are opposed. 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.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: 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.

(APPLAUSE)

(END VIDEO CLIP)

SCHULTZ: 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.

(BEGIN VIDEO CLIP)

OBAMA: 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.

(END VIDEO CLIP)

SCHULTZ: 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 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.
Boehner, that is what leadership is all about. Where`s your plan? Where`s
your solution?

Get your cell phones out, 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, of course,
comment. 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?

SEN. BERNIE SANDERS (I), VERMONT: 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
percent real unemployment. Twenty-five 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?

SCHULTZ: Well, I want to ask you about President Obama. I mean, he
is saying things he has not said in the last three years. I mean, he`s
being very aggressive. He`s taking it to `em.

Is it too little, too late? Can his jobs plan passed and will he get
the people with him?

SANDERS: I don`t think it`s too late. And, Ed, I`m just delighted.
I mean, 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 multi-corporations. Those guys
are doing phenomenally well. Corporate profits soaring, richest people
doing better than they`ve 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.

SCHULTZ: 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?

REP. BILL PASCRELL (D), NEW JERSEY: 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.

SCHULTZ: Yes.

PASCRELL: 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.

SCHULTZ: 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?

REP. JIM MCDERMOTT (D), WASHINGTON: 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 nihilists.

They don`t 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.

SCHULTZ: 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? I mean, the fact of the matter is, we`re headed for
another shutdown unless there`s action. What do you think?

MCDERMOTT: 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.

SCHULTZ: Yes.

MCDERMOTT: 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.

SCHULTZ: 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?

PASCRELL: 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 presidents.

SCHULTZ: Gentlemen, we could talk all night. I appreciate you
joining us. Congressman Jim McDermott and Bill Pascrell with us here on
THE ED SHOW tonight.

Remember to answer the question there at the bottom of the screen. We
want to know what you think. House and Senate Republicans send an
unbelievable letter to the Federal Reserve chairman, telling him to stop
helping the economy. Congressman Barney Frank joins me to talk about that,
about Ben Bernanke`s response.

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.

(COMMERCIAL BREAK)

SCHULTZ: Welcome back to THE ED SHOW.

This word now, "Reuters" is 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?

WILLIAMS: 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 grant or deny it. It takes,
as I said earlier, five votes to grant a stay.

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.

SCHULTZ: 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 is going to happen, Pete?

WILLIAMS: 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.

SCHULTZ: 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 --

WILLIAMS: I would think so.

SCHULTZ: 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?

WILLIAMS: 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 it
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 before the scheduled execution time, with
very little for the court to go on.

SCHULTZ: 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 eyewitnesses had no affect on the Supreme
Court. Your thoughts on that?

WILLIAMS: Well, the -- you know, we -- 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 called
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.

SCHULTZ: 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?

WILLIAMS: 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.

SCHULTZ: 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 Troung in Jackson,
Georgia, just outside the facility there in Jackson.

Thanh, this news is starting to filter through the crowd. What`s the
reaction?

THANH TROUNG, NBC NEWS CORRESPONDENT: Well, 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 at this point. There are hundreds of protesters and
supporters, many coming out in support of Troy Davis.

Georgia Highway 36 is right now running along here. The diagnostic
prison is on one side, the other side actually 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, a lot -- 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.

SCHULTZ: 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?

BEN JEALOUS, NAACP PRESIDENT: 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 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, past (INAUDIBLE) from 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 the Davis` family is
showing, to really use this as a moment of reflection and solidarity, a
time to recommit one`s self to the non-violent 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.

SCHULTZ: 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?

JEALOUS: 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, maybe even 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 wardens of this prison, and said, there`s
just too much doubt here.

This -- this really is a special case. You have to look back maybe to
the case of Carl Chessman (ph) 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 that it has struck a deep chord
in the conscious of this country.

And for millions of people, they will never be able to look at the
justice system again. I think 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.

SCHULTZ: 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 the 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 eyewitnesses 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.

JEALOUS: 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 warden 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 feel that anything but that justice
has failed us, the Supreme Court has failed us.

SCHULTZ: NAACP President Ben Jealous, stay with us. We`ll come back
to you, Ben.

Let`s bring in now Jeremy Scahill of "the Nation" magazine, joining me
on the phone. He`s been following this case closely. Jeremy, thanks for
your time. What makes this case so unusual? What strikes you about this
case?

JEREMY SCAHILL, "THE NATION": Well, Ed, you know, I got involved with
this case about four or five years ago. I met Troy Davis` sister, Martina
Karaya (ph), and I spoke on a panel with her about wars abroad and wars at
home. And just spending an hour with her and her breaking down the case
about her brother, I immediately as a journalist, but also as an American,
could not believe what I was hearing. And I started looking into it myself
with a journalistic eye.

And I`ve come to the conclusion that Troy Anthony Davis is guilty of
no crime, and that he was innocent of the charges against him, that he did
not kill Officer MacPhail.

SCHULTZ: What brought you to that conclusion? Jeremy, what --

SCAHILL: Yes. Well, when you have --

SCHULTZ: What brought you to that conclusion. I need to know that.

SCAHILL: -- as you were just discussing. When you have the fact that
there is a viable suspect, Sylvester Red Coles (ph), who actually was the
one who said Troy Davis did it, and has allegedly confessed to others that
he was, in fact, the man who shot Officer MacPhail that night, when you
have the fact that Troy Davis was treated in a different way when the
eyewitnesses 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 non-police eyewitnesses recant their testimony,
at a minimum, as a responsible American, you have to say, our country has
no business putting that man to death.

I, though, believe that he is innocent. And I`m ashamed, Ed. I`m
ashamed for our country right now, 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.

SCHULTZ: 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?

SCAHILL: 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 coerced or that they were
somehow pressured into saying that Troy Davis was, in fact, the killer,
when they now say that they didn`t see him.

So I think that there was, at a minimum, police misconduct or at least
serious allegations of police misconduct. And I think that 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 seemed 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, 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.

SCHULTZ: 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.

SCAHILL: 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 was --that was sort
of stunning about this was that 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.

SCHULTZ: Jeremy Scahill 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?

JEALOUS: 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 was sitting next to
a woman named Keyana Glover (ph). We were on CNN together. And she had
just come out of hiding. She had gone into hiding when the Board of
Pardons and Parole did the wrong thing, because Sylvester Coles -- Red
Coles has 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 to others one night when he was drunk, a few years ago,
when the case had heated back up.

And he admitted that he had killed Officer MacPhail. Sylvester Coles
is one of the only two remaining witnesses. He had been one of the
original suspects. And there are many people who have come forward and
said, he has done it. He`s admitted to it.

And there`s a sense that Georgia`s justice system really didn`t care.
They chose not to pay attention to her. This woman is fearing for her
life, has actually moved out of Savannah, fearing for her life. This is
the type of thing, here 22 years later, is still happening.

It leaves people deeply unsettled. You know, justice must occur, but
it must be precise. And we must be certain that we`re killing the right
person. And when our nation rolls forward amongst this much doubt, when
the former warden of this death row here in Jackson, Georgia says there
should be a stay, the former director of the FBI says there should be a
stay, you know, it`s, frankly, hard I think 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.

SCHULTZ: Well, Ben Jealous, I have to ask you tonight, if there is
someone stepping up, saying that they know that this man did not do 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?

JEALOUS: 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 amongst some law enforcement here when I sat down with the
warden here and asked him to let "60 Minutes" and MSNBC and CNN and others
who had expressed interest in it several weeks ago.

And he ended the conversation by saying that he had been on law
enforcement in Savannah 22 years, as if this should matter, as if as 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.

SCHULTZ: President of the NAACP with us tonight, Ben Jealous, outside
the facility in Jackson, Georgia.

Joining us now -- let`s bring in the co-founder of the Innocence
Project, Barry Scheck, joining me by telephone tonight. Mr. Scheck, your
response to the news tonight that the United States Supreme Court has
denied the stay of execution of Troy Anthony Davis?

BARRY SCHECK, THE INNOCENSE PROJECT: 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.

There`s a very famous case, Herrera (ph), 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 in 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 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 didn`t that 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.

SCHULTZ: Mr. Scheck, were you surprised by the Supreme Court response
tonight?

SCHECK: No, I wasn`t surprised by the Supreme Court response, from a
legal point of view, because as your prior caller -- prior speaker, Mr.
Scahill, 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 innocence,
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 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
mitochondrial DNA test on a piece of hair which was the only piece of
evidence that corroborated an accomplice`s testimony. And the Texas Court
of Criminal Appeals had ruled three to two that you couldn`t execute or
even sustain this conviction unless that hair was 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
presidential campaign continues. And that`s of Cameron Todd Willingham.

SCHULTZ: 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, obviously, 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 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, I
appreciate your time tonight. 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.

(COMMERCIAL BREAK)

SCHULTZ: Breaking news. You`re watching MSNBC. I`m Ed Schultz
reporting from Minneapolis. Tonight, the United States Supreme Court has
denied a stay of execution of Troy Anthony Davis. And we are expecting him
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?

PETE WILLIAMS, NBC NEWS JUSTICE CORRESPONDENT: 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 rounds 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. They -- 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.

SCHULTZ: 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?

WILLIAMS: And remember, the court isn`t in session right now. The
regular term for the court -- it`s still in the summer session. The
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 you none of them were in the court building tonight.
So -- but the court has a regular mechanism for keeping in touch with the
justices in a case like this.

My guess is here, Ed, is that 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, OK, shall we grant the stay, and if we do, 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 again. And I think we know the answer to
that. The answer to that is no.

SCHULTZ: 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.

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