innocent of shooting a killing a savannah georgia police officers 122 years ago. this case has drawn international attention for several years. seven of the nine witnesses have taken back their testimony, recanted, if you will. three of the jurors, by the way, involved in sentencing him to death have asked that he be spared. they have changed their minds. at least one witness has come forth under oath and said she heard another man who was actually involved in that scene at the time confess to the actual shooting. still, davis does admit to being at the scene of the crime and shell casings were found linking him to a previous crime. so that conviction in 1991, davis has since then exhausted every legal avenue. in fact his execution has been stayed now by various courts. we'll get word soon that davis has been put to death. we'll be live throughout this whole hour. we'll bring you the reaction from around the country, from our reporters as well, from those moth interested in this very dire case. al sharpton and sin think use talker joins us as well. reverend sharpton, it's 7:00. >> well, i'm at a real loss for words. i'm hoping -- and was hoping all day for a miracle. we had a vigil all day calling for justice here. i remember standing there in 2008 with troy davis out, and the excuse was stayed. i think it's outrageous. i also think that we've got to in his name deal with the fact that i do not think that a capital case should be allowed to go into court only on eyewitness testimony. no matter what your beliefs, there's so much data that says that eyewitness testimony is so flawed it should be outlawed that this can be used in a capital case if there's no physical or scientific evidence. >> if somebody seeing somebody shoot somebody at point-blank range, you want what other evidence? >> i want some ballistics, i want to have something that proves physically they did not in fact mistake what they said they saw. this case is an example of that. when you have 7 of the 9 witnesses -- you have any number of studies, chris, that say that people think they saw things in questioning they were shown the wrong pictures. there's all kinds of things. if you're talking about a capital case, not a murder case, not a case with life in jail, but a capital case, you should have more than just eyewitness as the basis of prosecuting a capital case, and we're going to washington on that this industry under the circumstances. >> i want to stay with you. we watched a recent example of public attitudes about capital punishment, not about this case, that may well be already brought to an end with the execution just moments ago, but one of the most shocking moments for nbc news and politico at the reagan library was what we saw from the cheering when rick perry talked about all the people, hundreds of them for whom he had signed execution papers. let's watch. >> your state has executed 234 death row inmates, more than any other governor in modern times. have you -- have you struggled to sleep at night with the idea that any one of those might have been innocent? >> no, sir, i've never struggled with that at all. >> well, you have a couple points there. i didn't even notice the last tag from the governor, but let's talk about the public reaction. instinctive, enthusiastic applause, representing the fact that in a recent poll, 80% of republicans, 82% are full supporters of capital punishment. now, democrats are mixed on the issue, a balance slightly in favor, but they struggle with this issue. republicans generally don't struggle with it, they're all for it. in this case it looks like governor perry says he has no sleepless nights. the most recent republican president, george w. bush, and there's not an ad hominem on my part, that he never spent more than 15 minutes in studying in case he had to review. it doesn't seem to bother a texas governor with an execution they have to approve, or at least not stand in the way of. what is it in the hard of republicans that seems to not be in the heart of democrats. i want your analysis, reverend, why a difference of heart here? >> i don't understand the difference of heart. i don't support the death penalty. i don't understand those that do, particularly those that claim to be moral and upstanding in other ways. what is beyond that, and i'm glad you showed it is, even if you disagree with my stand against the death penalty, what are you cheering about? why are we acting like we're at some coliseum throwing people to the lions and that is civilized behavior? in this particular kay, you have people that agree with the death penalty like bob barr, bill sessions, saying, no, there is reasonable doubt here, this shouldn't happen, and they still are going forward. have we become so insensitive and so bloodthirsty, when brian williams just raised a question, they started cheering? that is frightening in a civilized world to me. >> cynthia tucker has won a pulitzer prize trying to understand us. i argued that no human enterprise is perfect, to count as a statistician, to count is to err. simply the add of counting your dollars, you'll get it wrong once in a while. people don't do everything right. we execute, i'm convinced over time, over decades, sometimes they make a mistake. the guy or woman, mostly the guy, often an african-american, but almost always a poor person is executed. there must be times when we get it wrong as a society. isn't that a reason -- someone just argued quite legitimately, if we ever gelt it wrong, that is in itself a reason to stop executing people unless we're perfect about it. is that a reasonable standard, that we don't ever make a mistake? >> we clearly make mistakes in the criminal justice system every single day. innocent people are convicted of crimes. people are arrested -- not necessarily prosecuted, but arrested who didn't commit a crime. the criminal justice system is weighted with the burden of human frailty and prejudices and misunderstandings and misconceptions. there's a good reason that poor people, working-class people are those most often convicted of crimes, those who most often end up on death row. we already tend to believe they are more likely to commit crimes. those are some of the prejudices they carry around. we don't have the resources to hire good lawyers who can wage an appropriate defense for them. all of those are reasons that we ought to be extremely careful about the death penalty. like reverend al, i opposed it, but only if you believe it's appropriate in some cases, i don't know how you cheer about it. it's a duty to be carried out somberly, and heaven knows texas carts them off -- some mistakes have definitely been made. if we execute troy davis tonight -- and i say we for good reason. these executions are carried out in the public's name, we could well be making another mistake. >> reverend sharpton, i have great respect for your passion. i don't always agree with you, but let me ask you about this case. when you got into this case and sympathized enough to visit with the accused. when you sat down with this fella. i remember "shaw sharon redemption" they say everybody says they're innocent. when he told you he was innocent, what made you believe him? >> what made me believe him was what happened before we went in. we've been accused of jumping into cases without tag our time, so i did a lot of deliberation and had the general counsel do it before i even went in to see troy. when we saw the recanting of seven witnesses. i went to savannah and had a rally. we talked to people on the jury. you had people on the jury that convicted him that said if they knew the ballistics that they were told that was on some of the shells did not match what they were told were troy, they wouldn't have convicted him. any one of them would have hung the jury. what all of that, to me the matter wasn't just whether he was innocent. the matter was that there was enough reasonable doubt that you do not execute the man. that is why i have passion. the legal precedent that establishes in this case is that on eyewitnesses, no matter how flawed they may be, is a basis of a capital case. we cannot tolerate that in the 21st century. >> do you believe, reverend sharpton, the fact that it was a cop killing, whoever did the killing was killing a cop, whether it was him or another guy theoretically, in the killing of that police officer was out there moonlighting, trying to make extra money for his family. he's an innocent. this guy is doing his job. he tried to help a homeless guy not get beat to hell, and he gets shot to death. this is a good man, a good person. anyone else in that community would want to root for this guy and feel for a him and care deeply about his loss. i'm asking you, do you think that fact it self-led to a rush to judgment? >> i think it probably created a climate to rush to judgment. i've said from the beginning, when we got involved and i say it tonight, this cop was someone that should be applauded for what he was doing that night. his family should have nothing but love and sympathy from all of us. they are victims, no question. but the reality is if the work man is being executed, we're making officer mcphail a victim again, because the person that killed him is walking free. you cannot take away from the fact that if, with reasonable doubt, they're executing the wrong man, what are we doing to mcphail all over again? >> well, would you want to execute the other guy if he got convicted, if they get the other guy? >> i wouldn't want to execute him. i would certainly want him -- i don't execute anyone. i forgave the guy that tried to kill me. but if you execute this man, he loses his life, and you make a victim off mcphail again if it is the wrong person, because we still have not done justice to who took the life 6 this officer. >> we don't know except by the clock that this man has probably already suffered the -- we're going to get the clear word in a couple minutes, but the scheduled call, that's past that time now. he may be past his time. how can you continue your efforts here? it seems worthwhile to our society, if can you demonstrate even with stronger emphasis or more convincingly that this guy didn't do it, he's actually innocent. you get a case like this where somebody who gets executed, who is actually innocent, and you can basically do it, you will have a very, very strong argument against capital punishment with our without physical evidence? >> no, i agree. i said that at the vigil today. i talked to his sisters today when they came out from visiting him. we must walk out of this tonight even if troy is executed, and say that we must prove this was wrong, and we must change the law to where even though the support the death penalty will have to agree with us that you need in order to establish a capital case more than eyewitnesses. is it we can at least make that step, then troy davis' case will mean something in terms of civilized society. i don't know why people that even support the death penalty, and we'll be in washington meeting with the justice department, why they wouldn't agree that at least there needs to be a bar to have to reach to justify capital case punishment. here we are, thank you very much. we're waiting to get the word on what happened. we expect we'll hear very soon about an execution have been taken place. this is a strange case. this man has so many supporters. really innocent, and these people believe he's really innocent, and this is a miscarriage of justice. we're going to come back and look at this evidence of innocent people, if there are such cases in this country, maybe this was one we are clearly watching. that's ahead. as we await word from georgia on this execution. planned tonight for 7:00 eastern, the time already passed. you're watching "hardball," only on msnbc. ecutor of efficiency. you can spot an amateur from a mile away... while going shoeless and metal-free in seconds. and you...rent from national. because only national lets you choose any car in the aisle...and go. you can even take a full-size or above, and still pay the mid-size price. now this...will work. 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[ junior ] ...and they've helped build my business. a network of possibilities... ♪ in here, pets never get lost. ♪ in here, every continent fits in one room. it was fun, we played football outside. why are you sitting in the dark? ♪ [ male announcer ] in here, you're never away from home. it's the at&t network. and what's possible in here is almost impossible to say. look at this scene outside the prison. of course, troy davis was scheduled to be executed at 7:00 p.m. eastern. we're waiting word from the officials at the prison down there to find out what's going on. it's one of the scariest things to think about, the idea that an innocent man could be executed by the state, by society, when he's not guilty. but many death penalty opponents believe it's happened in real life over the years. and that's pretty scary. we have to talk about that. let's go to barry sheck, and bob barr joining us who's involved in this marine. you were great when we were talking about this. your career is basically about appeals cases. al sharpton, our colleague said we shouldn't be executing people without real scientific evidence, and that eyewitness accounts are simply not reliable. is that too rigorous a standard under common law intuition? can you limb indications to where you have actual evidence, ballistic evidence, dna, that sort of thing? >> the first thing that should be noted, is for the last 20 years we've had an innocent project, and there are 275 people who were convicted, and then real exonerated with dna testing. an eyewitness misidentification was the contributing factor. there was also junk forensic science, and the same thing happened in this case. we had what everybody agrees is a bad ballistic testimony in this matter. if if you recall during the campaign, i was seeking a stay of an execution from a governor bush for a guy, and on your show, governor bush said i will grand that stay. >> i remember that vaguely. on december 7th, 2000, the last person that jush executed was a man named claude jones. he was sentenced to die after a 3-2 decision where it was said that an accomplice in texas you needed corroborated evidence. the evidence was analysis of a hair that was found around a countertop. >> barry, we have to -- >> i've got some news. we'll be right back with your analysis. let's go to pete williams, nbc's justice correspondent. what's the word, pete? >> reporter: we are waiting for the u.s. supreme court to say whether or not it's going to grant a stay of execution. the request came just a little over an hour ago. there's no time limit by which it must respond. however, it does appear from what we're hearing from people in georgia, that the state is delaying execution. there's word from our affiliate that one of the lawyers that the state has granted in essence a temporary reprieve do that the state is waiting to see what the u.s. supreme court will do. to make it clear here, as barry sheck could explain better than i can, the state is in control of the time for the execution. if it wants to delay the execution, it can. that is a matter for the state, not the supreme court. the supreme court doesn't grant repreefs. that's a state issue. the court is either going to grand the stay of execution. that's the only thing pending. a logical question would be how long will that take, and there's no good answer to that. the court is under no time limit here. the justices are aware of the clock issue here, but they have to all be rounded up, and that imsure is going on now. last week, for example, chris, when the supreme court issued a stay of execution in the texas case of dwayne buck, who had been convicted of a double murder in houston and his lawyers were asking for a new sentencing hearing, the court granted the stay two hours after the time for the scheduled execution. the state was waiting in that case in texas. it did not have to, but it did. so presumably the same thing will happen here. there's no deadline -- there's no time limit until federal law for the supreme court to act, but that appears to be the situation here, where we've got bedownthe scheduled execution time. it appears that the authorities in georgia are waiting to see what the supreme court does. >> how many federal judges -- of the nine supreme court justices, how many have to intervene to act for this to stop? >> it would take a vote of five votes to grand a stay of execution. >> really. >> that's my understanding. i may have to refresh my memory. i think it's four or five, but i think it's five votes. procedurally what's going on, is the lawyers are saying in essen essence, our guy's gotten screwed here, we have an appeal that's coming your way. while we're waiting for file that appeal, and while you does i to take it, please don't let the state proceed with the execution. it wouldn't make any sense to later say, yeah, we're going to take this case and already have the execution already happened. that's the usual procedure. sometimes the supreme court grants these stays. last week it did, and last week it also denied a stay. there's no way to predict what's going to happen here. this case has been before the supreme court once before, they sent it back to the lower courts, and the justices 345i feel the lower courts have adequately addressed the issues. we just don't know what it's going to do. >> this is what i think the average person hears right now in fact to avoid the execution of an innocent man or the execution of someone who is guilty, depending on your views. how does this guy have enough legal power to operate at all levels? if he had this kind of legal firepower in his trial, he would have been off, it seems to me. how can they have such great legal help now and he didn't seem to have very good trial support when he was convicted of murder in the first degree and sentenced to death? where did they all come from? and where were they in the first place? >> it's very often the case that the states don't spend a lot of money for people who can't afford their own lawyers and the kind of defense that people get in death penalty cases has been a subject of great concern in the legal community for decades, that there isn't sufficient legal support for people the first time around. you very often happen in a case like this, as more people get interested, lawyers come to the case and find things they think should have been done that weren't done in the first go-around. >> without getting -- i give you one detail. nine eyewitnesses, now all of a sudden you only have two. does that surprise you? i can understand how a gyre would be teaked by the testimony of nine witnesses, but they have all sort of evaporated. >> and of course the question for the lower courts is, well, okay, what difference does all that make? did he nonetheless get a fair trial? the legal standard's a very high one when you want to reopen a death penalty case. you have to that had the jury known the new facts or new information you have, they very likely would have come for a different conclusion? that's a difficult legal standard to meet. there's obviously other evidence,