When Texas Governor Rick Perry said in a recent Republican presidential candidates' debate that his sleep is untroubled by doubts about the guilt of any of the 235 men and women who have been executed on his watch, he pointed out that his state has "a very thoughtful, a very clear process in place" to review death penalty cases. A cornerstone of that process, in Texas and elsewhere, is the Board of Pardons and Paroles, which is designed to act as a safety valve, removed from the emotion of the crime and the courtroom. It's a last resort, not to retry a case, but to ensure that a conviction is so ironclad that there is no doubt that it merits the ultimate punishment.
That safety valve failed in Georgia Tuesday, just as it has on a number of occasions in Texas. The Georgia Board of Pardons and Paroles denied convicted murderer Troy Davis' last appeal for clemency, setting him on a seemingly unstoppable course for execution Wednesday evening.
For the simplest picture of why that decision was so wrong — as so many of Davis' myriad supporters have pleaded for years — just look at the numbers.
— 7: that's how many of the nine original eyewitnesses have recanted their testimony against Davis.
— 0: the amount of physical evidence linking Davis to the crime (no fingerprints, no DNA, no weapon recovered).
— 3: the number of jurors who voted for death in the original trial who now believe their vote was a mistake.
— 22: the number of years the family of slain police officer Mark McPhail has had to wait for an answer to the question of whether or not Davis would die for the crime.
The last number — a symptom of the interminable appeals process — would seem to speak in favor of simply executing Davis and getting it over with. Justice delayed, as Newt Gingrich said when he fought for a law that limited death penalty appeals, is justice denied (a statement that he seemed to believe pertained only to the families of the victims, not the convicted). But the truth is that the Georgia Board of Pardons and Paroles should have ended this macabre theater when they had the chance three years ago, by commuting Davis' death sentence and either letting him serve out a life term or granting him a retrial.
Beyond all the evidentiary problems of Davis' case — to take one example, police Re-enacted the crime scene with all the eyewitnesses together and talking to each other, a practice which is now unheard of — it never had any hallmarks of a case that should have been eligible for the ultimate penalty. It was a senseless murder late at night that was only half-seen in a half-lit Burger King parking lot. A good man was killed, but even death penalty supporters, a number of whom have called for clemency in Davis' case, would agree that death cases should be reserved for those with the most incontrovertible evidence. Even before witnesses started recanting and jurors started regretting, Davis' case never met that standard.
"Seven of the nine witnesses have recanted at this point. That in and of itself is problematic," says Mary Schmid Mergler, Senior Counsel for the non-profit Constitution Project, whose high-profile advisers (a mix of abolitionists and death penalty supporters) have come out in favor of clemency for Davis. "But the most troubling thing is just the fact that a death penalty conviction rests solely on eyewitness testimony to begin with."
That was one of the arguments made in Monday's board meeting before the five board members appointed by former Governor Sonny Perdue (three of the members are new since Davis' case was initially heard in 2008). It was a quick affair: three hours for the defense, the same for the prosecution — though defense lawyers complained the prosecution got more time — followed by a decision released just after 8am the next morning.
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