Too Much Doubt to Execute

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Open Society Foundations
Sara J. Totonchi
September 30, 2011
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The tragedy of Officer Mark MacPhail’s murder was compounded by Troy Davis’s drawn-out march to death. Last week, Davis was executed in the state of Georgia, despite the fact that questions still remain about whether he was guilty of the crime for which died.

Troy Davis's case represents everything wrong with the death penalty—from procedural obstacles to racial bias to witness mishandling to allegations of police and prosecutorial misconduct to inadequate assistance of counsel. We at  the Southern Center for Human Rights (SCHR) litigate these constitutional issues daily as we represent people facing the death penalty in Georgia and Alabama.

I started my work at SCHR in 2001, the year of that the Georgia Supreme Court issued a ruling that abolished the electric chair.  It was our firm that argued the case that successfully eliminated this enduring symbol of the harshness of the southern justice system. Between the time it was first used in 1924 and its last use in 1998, Georgia used the chair to electrocute 349 African-Americans and 86 white people.

It was also in 2001 that I first became aware of the case of Troy Davis. Martina Correia, Davis’s sister, called to welcome me to the movement to end the death penalty and shared that her brother was an innocent person on Georgia’s death row. As an employee of SCHR—a firm that is dedicated to providing legal representation to people facing the death penalty who wouldn’t otherwise have lawyers regardless of guilt—I was taught to be cautious, even skeptical of claims of innocence. As I learned more about the sequence of events that led to Davis’ arrival on death row, my skepticism turned to shock and disbelief.

He maintained his innocence from the day of his arrest until his very last words on the night he was killed: “I am innocent.” No physical evidence tied Mr. Davis to the crime. He was convicted solely on the basis of eyewitness testimony and seven out of nine witnesses have recanted or changed their story. An eyewitness testified for the first time in 2010 that he saw someone else, not Davis, shoot Officer MacPhail. And at least ten individuals have been implicated as alternative suspects.

There is simply too much doubt that persisted in his case.

When human error leads to a failure to examine critical evidence, and jurors are not informed of reasons to doubt what the state alleges, the Board of Pardons and Paroles is supposed to act  as a safety net to prevent the irreversible mistake of executing the innocent. Regrettably, last week the Parole Board declined to grant clemency to Davis. This is despite its previous statement that it would not allow an execution to proceed where there is any doubt as to guilt.

It has been repeatedly demonstrated that our criminal justice system is not devoid of error. We know that since 1976, 139 individuals have been released from death rows across the U.S., most often due to mistaken witness identification. In Georgia, this problem is particularly acute: all eight of the men who have been exonerated, thanks to the work of the Georgia Innocence Project, were wrongfully convicted on the basis of faulty eyewitness testimony.

Some states are beginning to move away from the death penalty because of growing concerns about innocence, unfairness, discriminatory application, lack of efficacy, and other reasons. The death penalty was intended to be reserved for the worst offenders, but in practice, it is arbitrary and unfair. The system is fraught with error, plagued by poor legal representation, and discriminates on the basis of income, race, and geography among many problems that leave it too broken to be fixed.

In 1976, the same year the U.S. Supreme Court reinstated the death penalty, Jerome Bowden, a man with an IQ of 65, was sentenced to death in the murder of Kathryn Stryker in Columbus, Georgia. In his last words to the world before the switch was pulled, Bowden said:

I am Jerome Bowden and I would like to say my execution is to be carried out. I would like to thank the people of this institution. I hope that by my execution being carried out, it will bring some light to this thing that is wrong.

When Bowden died, legal and volunteer advocates were crushed, but his last sentence kept them working. They didn’t stop until the Georgia General Assembly passed the first law in the nation that banned the execution of persons with mental retardation. Jerome’s words fuel me and push me forward on the days when I feel there is no hope left at all.

It is hope that remains despite the disappointment, sadness, and anger over the execution of Troy Davis. As long as the state continues this futile and brutalizing exercise in vengeance, we will continue to make our treks to death row, the state capital, and the courthouses to take a public stand against this killing in our name.


This article was originally published on the Open Society Foundations blog.  It is reprinted here with permission.

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