Executing the Innocent?

Published on Friday, September 19, 2008 by Huffington Post

Executing the Innocent?

by David C. Fathi

At 7 p.m. on September 23, the state of Georgia plans to execute Troy Anthony Davis. That by itself is unremarkable; Georgia has carried out 42 executions since 1983, including two since May of this year. What makes this case different are the serious questions that have been raised about Davis ' trial -- and therefore about the reliability of his conviction for the crime for which he is to die.

Davis was sentenced to death for the 1989 murder of an off-duty Savannah police officer, Mark Allen MacPhail. Of the nine eyewitnesses who testified against him at his trial, seven have since recanted and now say they are not sure who shot MacPhail. Some say they gave their original statements only after the police pressured them. Three witnesses now say that another man has confessed to the crime.

Even without this new evidence, Davis ' death sentence would raise red flags. Studies show that black defendants are more likely to get the death penalty than white defendants, and those convicted of killing white victims are more often sentenced to death than those who kill blacks. Davis is black; Officer MacPhail was white. No physical evidence linked Davis to the crime, and the murder weapon was never found. The prosecution's case rested almost entirely on eyewitness testimony, which can be highly unreliable and has been implicated in many wrongful convictions.

More broadly, many Americans don't realize just how out of step their country is with the rest of the world in its retention of the death penalty. Many of our closest allies -- including Canada , Great Britain , France , Italy , and Germany -- abolished capital punishment decades ago. Their citizens express shock and incomprehension as the United States joins China , Iran , and Saudi Arabia in the ranks of the world's leading executioners. And our attachment to the death penalty has very real costs for our own justice system: many countries won't extradite a criminal suspect to the United States if he or she may face execution.

Human Rights Watch opposes the death penalty in all circumstances because of its inherent cruelty and finality. But even those who support capital punishment must shudder at the prospect of executing an innocent person. And we have come very close, not just once, but many times. Since 1973, 129 persons -- including five in Georgia -- have been released from death rows in the United States because of evidence that they were innocent. Some of these men and women had come within hours of execution.

Davis himself was 24 hours from execution in July of last year, when the Georgia Board of Pardons and Paroles granted him a stay. Now that stay has expired, and Davis is once again scheduled to die.

Because of strict rules limiting consideration of newly discovered evidence, Davis has been unable to get a court to hear the new evidence in his case. In March, the Georgia Supreme Court voted four to three not to grant him a hearing, and on September 12, the Board of Pardons and Paroles denied his request for clemency. Davis still has a petition pending before the US Supreme Court; that is his last hope. It also may be Georgia 's last hope to avoid the unfathomable shame of executing an innocent man.

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David C. Fathi is director of the US Program at Human Rights Watch. A longtime civil rights lawyer, he specializes in the death penalty and other criminal justice issues.

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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs