Did Troy Davis death-penalty case expose flaws in 'executive clemency'?

The Georgia Board of Pardons and Paroles stood firmly behind the 1991 murder conviction that put Troy Davis on death row. But the many doubts in the case have raised questions about 'executive clemency' as a fail-safe for the death penalty.

Unreliable eyewitnesses, the impact of race on a jury in the Deep South, the difficulty of proving innocence once convicted: Troy Davis's long journey through the US judicial system has hit nearly every sensitive button in America's complex relationship with the death penalty.

On Tuesday, the Georgia Board of Pardons and Paroles declined a final clemency bid by Mr. Davis, 42, who has spent 20 years on death row for the murder of an off-duty Savannah, Ga., police officer in 1989. The board reaffirmed the validity of the original conviction by a jury of his peers. His execution by lethal injection is scheduled for 7 p.m. Wednesday.

But to many legal experts, doubts raised about Davis's guilt after his conviction raise new questions about the Supreme Court's determination that so-called "executive clemency" – the power of a governor or review board to commute a death row sentence – is an adequate fail-safe for assessing death-row innocence claims.

"If a case like this doesn't result in clemency, which is a discretionary process that calls a halt to an execution based on doubt surrounding the integrity of the verdict, then it suggests that clemency as a traditional fail-safe is not adequate," says James Acker, a criminologist at SUNY-Albany. "The Davis case raises doubts about the discretionary clemency process and ultimately raises doubts about whether the legal system can tolerate this potential error in allowing a person to be executed."

While the number of people executed in the United States has dwindled steadily over the past 15 years, a majority of Americans – about 64 percent – still support the death penalty. At a recent GOP presidential candidate debate, a crowd cheered when Texas Gov. Rick Perry, the current Republican frontrunner, noted the 234 executions carried out under his watch.

But also this summer, an Arkansas judge allowed a complex legal maneuver to free three men known as the West Memphis 3, including one who was on death row, for the murder of three boys 18 years ago. Moreover, North Carolina, once one of the most active death-penalty states, currently has a moratorium on the sanction.

"The death penalty is really fading in the United States, and there is a lot of disagreement about why that is, but certainly, (there are) fewer executions than there used to be," said the New Yorker's legal writer, Jeffrey Toobin, in a CNN interview Tuesday. "But this one does appear to be going forward, even with all the protests."

DNA-based death row exonerations have influenced the public's view, but the Troy Davis case rises to the top of the death-penalty debate for several reasons. For one, he is arguably the best-known person on any US death row, and the show of public support for a new trial has been unprecedented, with nearly 700,000 people petitioning the parole board. Global figures like Pope Benedict XVI, Archbishop Desmond Tutu, former President Jimmy Carter, and even death-penalty supporters like former Congressman Bob Barr, all urged the parole board to either commute his sentence or give him a new trial.

In an indication of the seriousness of the doubts about the case, the US Supreme Court in 2009 transferred Davis's writ of habeas corpus, or request for relief from unlawful imprisonment, to a US District Court – the first time it had granted such a request in half a century. Two dissenting justices, Antonin Scalia and Clarence Thomas, called the ruling a "fool's errand."

The federal judge assigned to the case, Judge William T. Moore of the US District Court of Southern Georgia, concluded in 2010 that new evidence and testimony, including that 7 of 9 witnesses had changed or recanted testimony, wasn't enough to prove his innocence. “The state’s case may not be ironclad, [but] most reasonable jurors would again vote to convict Mr. Davis," Judge Moore wrote in his ruling.

In 1993, the US Supreme Court ruled in Herrera v. Collins that an individual’s provable innocence isn't, by constitutional standards, enough for courts to grant a new trial. The ruling put the onus on discretionary state-by-state executive clemency procedures – whether by extrajudicial boards or governors – as the "fail-safe."

"I really think that the decision made in Georgia puts the assumption that executive clemency is a fail-safe in so much doubt that it ought to stimulate the legal system … to revise, reform, revisit the formal legal process that results in convictions and allows sentences of death," says SUNY-Albany’s Mr. Acker. "In this case, the clemency process has failed."

The Georgia parole board noted that it has commuted three death sentences since 2000, and said in a statement that its five members "considered the totality of the evidence" and that members "have not taken their responsibility lightly."

The family of the slain police officer, Mark MacPhail, said that Davis and his family had duped people into believing in his innocence. "We know what the truth is," MacPhail's widow, Joan MacPhail-Harris, told CNN. "And for someone to ludicrously say that he is a victim – we are victims. Look at us. We have put up with this stuff for 22 years. It's time for justice. We need our justice."

But others believe Davis's claims of innocence and the substantial doubts about whether a jury today would find him guilty present the US with a moral quandary that could reflect more broadly on the death penalty.

"At its core, I think this case represents a serious moral issue," Rev. Raphael Warnock of the Ebenezer Baptist Church told the Christian Post. "If we're able to execute a man with this much doubt, that is not good for our moral health."