Georgia’s pardon and parole board Tuesday denied clemency to Troy Davis, a Savannah man convicted of the 1989 murder of an off-duty police officer, paving the way for his execution despite critics’ concerns that the state may be putting an innocent man to death.
The decision was probably welcomed by the family of Mark MacPhail, the Savannah police officer who, while working as a security guard, was gunned down as he sought to aid a beating victim in a downtown parking lot.
MacPhail’s widow, Joan MacPhail-Harris, and other family members contend that the jury was correct in convicting Davis in 1991, and that the death penalty was warranted.
“For someone to ludicrously say that [Davis] was a victim — we are the victims,” MacPhail-Harris said Monday night after addressing the parole board.
But Amnesty International and other groups have argued that Davis, 42, should be spared death by lethal injection based on new evidence that emerged after his jury trial, including numerous key witnesses who changed their stories that had originally implicated him.
Former President Carter and Archbishop Desmond Tutu have expressed similar concerns, as have conservatives including former Rep. Bob Barr (R-Ga.) and William S. Sessions, who was FBI director under Presidents Reagan and George H.W. Bush.
The board did not cite a reason for its denial, but noted in a brief statement that its five members “have not taken their responsibility lightly and certainly understand the emotions attached to a death penalty case.”
As the two-decade drama lurched toward climax, media coverage intensified, thrusting capital punishment to the center of the national conversation at a time when voters are examining the record of GOP presidential front-runner Rick Perry, who, as governor of Texas, has presided over 235 executions.
Twice within the last week, the U.S. Supreme Court blocked what would have been the 236th execution so it could decide whether to hear the appeals.
On Thursday, the high court halted the execution of Duane Edward Buck, whose 1997 death sentence came after a psychologist told jurors that he was more likely to be a future threat to public safety because he is black.
On Tuesday, the justices stayed the execution of Cleve Foster, a former Army recruiter who contends that another man committed the 2002 rape and murder for which he was convicted.
Race has been a factor in the mobilization to save Davis, an African American whose purported victim was white. Davis’ supporters think the Savannah police engaged in a frenzied rush to judgment after MacPhail’s slaying, coercing African American witnesses to testify against Davis.
Supporters held a news conference Tuesday at Atlanta’s Ebenezer Baptist Church, former home to the late civil rights icon Martin Luther King Jr.
“To execute a man with this much doubt does not bode well for any of us, and, quite frankly, it harkens back to some ugly days in the history of this state,” said Ebenezer senior pastor Raphael Warnock. “This is Jim Crow in a new era. There’s just too much doubt for this execution to continue.”
Amnesty International’s Laura Moye said she and others had hoped that the state board, which has more leeway to commute a sentence than the rules-bound courts, would have acted as a “fail safe” to guarantee justice.
The court system, she said, “has completely failed to serve as an adequate safety net, with a focus so narrowly bound on process and procedure that it has completely missed the more morally fundamental question, which is: ‘Can the state of Georgia be absolutely sure that it does not have an innocent man facing death on Wednesday?’ ”
Moye called on the parole board to reconsider.
Davis has few options left. The U.S. Supreme Court rejected his appeal in March, and Georgia Gov. Nathan Deal does not have the power to commute a death sentence.
Edward DuBose, president of the Georgia State Conference of the NAACP, said the national group was considering an appeal to President Obama, but called that a “long shot.”
Late Tuesday night, Davis’ attorneys asked that he be allowed to take a polygraph test, the Associated Press reported.
Supporters also pleaded for Larry Chisolm, the current district attorney in Chatham County, Ga., to request that the execution order be rescinded.
Chisolm took office in 2009, long after Davis’ trial, and is the county’s first black district attorney. Warnock said Chisolm told him in June that he would not have sought the death penalty if he had been prosecutor at the time.
Chisolm could not be reached for comment Tuesday.
Before the Supreme Court rejected Davis’ appeal, justices took the highly unusual step of ordering a federal district judge, William T. Moore Jr., to reexamine the case and consider the new evidence.
Moore held an evidentiary hearing and, in August 2010, found the new evidence to be “largely smoke and mirrors.” He criticized most of the witnesses’ recantations as partial, illogical or “impossible to believe.”
In some cases, Moore noted, defense attorneys “suspiciously” declined to call some of the witnesses to testify in the new evidentiary hearing, preferring to let their testimony stand in affidavit form. This devalued the testimony, he wrote, because it was not subject to cross-examination. The judge was similarly unimpressed with witnesses who said they had heard another man boast of committing the crimes.
In the hearing, Davis had to prove “by clear and convincing evidence” that “no reasonable juror would have convicted him in the light of the new evidence.”
That is a much higher hurdle than demonstrating a “reasonable doubt,” said Mary Schmid Mergler, senior counsel for the Constitution Project, a bipartisan national group that deals with constitutional matters and has called for clemency in the case.
Such hurdles, part of what Schmid Mergler called a “general emphasis on finality of verdicts,” are erected at the appellate level to prevent cases from constantly being retried and plunging the lower courts into chaos.
But, Schmid Mergler said, “a search for truth should always trump finality. The Davis case is a prime example of how emphasizing finality over accuracy can lead to injustice.”
Davis’ execution is set for 7 p.m. Wednesday.