Op-Eds Speaking Truth to the Powers-That-Be
Troy Anthony Davis is in the final hours of the process leading to his execution by the State of Georgia. His case has received international attention. Did he murder 27-year-old police officer and former Army Ranger Mark MacPhail in a Burger King parking lot in Savannah, Georgia in 1989? A criminal court that is supposed to convict beyond a reasonable doubt has left plenty of doubt behind.
Davis has spent the last two decades on death row, even though the case against him has fallen apart. His execution date has been set for today at 7:00p.
“Monday September 19, 2011, the State Board of Pardons and Paroles met to consider a clemency request from attorneys representing condemned inmate Troy Anthony Davis. After considering the request, the Board has voted to deny clemency,” the board said in a statement Tuesday morning.” 
This is a reversal from the Board’s 2007 stance when they stayed his execution because they felt that the standard of proof of absolute guilt was not met.
Off-duty police officer Mark Allen MacPhail ran to the aid of a homeless man being pistol-whipped outside a Burger King when he was shot. The Georgia jury in his case found Anthony guilty, without a murder weapon or any other physical evidence linking him to the crime.
The case against Davis consisted entirely of witness testimony, which contained inconsistencies even at the time of the trial. Since then, all but two of the state’s non-police witnesses from the trial have recanted or contradicted their testimony. Many of these witnesses have stated in sworn affidavits that they were pressured or coerced by police into testifying or signing statements against Troy Davis.
One of the two witnesses who has not recanted his testimony is Sylvester “Red” Coles. Not surprising. Coles is the principle alternative suspect, according to the defense. There is new evidence implicating him as the gunman. Nine individuals have signed affidavits that implicate Coles, not Davis, in the commission of the capital crime.
One other problem for Davis is that the courts there allow those on death row in Georgia to be sentenced to death as co-conspirators in a felony that involves capital murder even if they did not actually the person. That allows a lot of latitude to the state in the execution of its lethal injection program.
Out of the 56 cases moved forward since the death penalty was restored in the state in 1983, only five inmates awaiting execution were freed from death row, and seven have been exonerated. 51 were executed. 
Amnesty International reports that over 130 people have been released from death rows since 1973 for wrongful convictions. There were 10 in 2003 alone.  There have been numerous instances where the death penalty has been applied to innocent people. 
Earlier this year, Amnesty International issued an “Urgent Action” to mobilize its three million members in Georgia, the United States and around the world to write the Georgia Board of Pardons and Paroles to advocate for clemency for Davis. It is the fourth urgent action that the human rights organization has issued on behalf of Davis in as many years. Pope Benedict XVI, former President Jimmy Carter, former FBI Director William Sessions, and Archbishop Desmond Tutu, among others, have all appealed to the Georgia’s Pardons Board to at least commute the sentence to life without parole. More than 3,000 people gathered for a protest march on Monday. Howard University is having its own protest today.
Appeals courts use a different standard for the appeal of a murder case with the death penalty on the table. They need clear and convincing evidence that the defendant is innocent, a higher standard than guilt beyond a reasonable doubt used at the actual trial.
There is something wrong about setting the bar that high. Many death row inmates had minimal defense by a public defender appointed to them. Davis has been able to demonstrate that there is more than a reasonable doubt about his guilt, but he cannot produce the actual murderer, which has been the downfall of his appeals. Even a judge who denied him a new trial found the statute that requires that bar for proof of innocence set at that level “unreasonably high.”
On March 28, 2011 the U.S. Supreme Court declined to hear Troy Davis’ appeal, setting the stage for him to face execution today. Mr. Davis’ options for appeal are exhausted. Georgia’s governor has no power to stop executions. The Pardons Board met yesterday, and declined his appeal.
Mr. Davis has been hours from death three other times, the last in 2008. There the U.S. Supreme Court granted a stay two hours before he was to be executed. Davis’ attorneys are asking for a polygraph today to prove his innocence. They may be able to obtain a stay from a the Supreme Court again, but it is considered unlikely. Without a last minute pardon, though, Troy Anthony Davis will be executed this evening.
Bob Barr, a former U.S. District Attorney for the Northern District of Georgia wrote yesterday:
“I support the death penalty, and have for a long time. And I am not making a judgment as to whether Davis is guilty or innocent. But surely the citizens of Savannah and the state of Georgia want justice served on behalf of MacPhail, the police officer.
“Imposing a death sentence on the skimpiest of evidence does not serve the interest of justice. The Georgia Board of Pardons and Paroles did not honor the standards of justice on which all Americans depend by granting clemency. In doing so, it will allow a man to be executed when we cannot be assured of his guilt.
“That was the final admirable principle standing between Davis and his scheduled death by lethal injection Wednesday. And the parole board did not uphold it.” 
If Davis is executed, public trust in the criminal justice system will die with him.