Will Georgia Execute an Innocent Man?

Today Georgia’s pardons board rejected a petition for clemency from Troy Davis, a high-profile death row inmate whose guilt in murdering a police officer has been seriously brought into question. He is scheduled to die tomorrow.

The police officer, Mark MacPhail, was shot and killed in 1989 after intervening in a heated argument, one of whose participants, Sylvester Coles, was the man who ultimately fingered Davis as the guilty party. Investigators found no murder weapon or physical evidence implicating Davis, who has insisted upon his innocence to this day.

Of the nine eyewitnesses who connected Davis to the crime, seven have recanted part of all of their testimony. Additional witnesses have come forward pinning the murder on Coles.

Davis was handed an unfair jury and incompetent counsel, according to many experts, journalists, and legal and political leaders who have watched the case unfold with some interest. So egregious was the procedural injustice that the demands for a new trial or evidentiary hearing have come from a rather diverse group of luminaries—Jimmy Carter, the Pope, Archbishop Desmond Tutu, and former FBI Director William Sessions.

Last June at the evidentiary hearing, former witnesses for the state took back their testimony and claimed the police had coerced them. The tribunal ultimately denied Davis the right to a second trial, on the grounds that the new evidence had only shed “minimal doubt on his conviction.”

Some will argue that the inertia driving the execution of a man convicted of killing a cop is so powerful that the board may have been intimidated into rubberstamping the process rather than questioning it. But I would argue that even by the state’s own terms, “minimal doubt” is still a “reasonable” enough amount of doubt to overturn a death sentence. The moral implication of keeping a man in prison who might be guilty and trying him again after most witnesses against him have admitted to misrepresenting the truth is simply that the legal system is determined never to make someone pay the ultimate price for the state’s own error. The moral implication of executing an innocent man is infinitely worse: To kill an innocent man, not by accident but deliberately, knowing there is at least some chance he may be innocent, and when there is no impending threat to anyone’s life or liberty, is itself an act of murder. A state that executes a single innocent man should be condemned universally.

Has the American criminal justice system executed innocent men in the recent past? Will it tomorrow? These are tough questions for those who defend the status quo, folks who are forced either to say that executing the innocent is a price worth paying to have the death penalty, or to argue that the system is so flawless in its safeguards that this mistake simply doesn’t happen. But the latter is hard to believe. Of the 234 people that Texas Governor Rick Perry, to thunderous applause at the GOP Politico debate, proudly boasted were executed on his watch, one was Cameron Todd Willingham, whose guilt in the murder of his children is also very questionable. Willingham insisted on his innocence up until his death, refusing to admit guilt even in exchange for his life. And then, when a top arson expert submitted a report on the day of Willingham’s execution to Governor Perry arguing that the fire that took the lives of Willingham’s children was probably not caused by arson, Perry ignored it, allowed the execution to commence, and spent years effectively covering up this horrible scandal.

The only way to ensure that the government—a highly imperfect and corrupt organization that can hardly do anything right—never executes the innocent, is to abolish the death penalty altogether. For more on this very important issue, a matter of life or death, see the Independent Institute’s event “The Death Penalty on Trial” with Bill Kurtis and Franklin E. Zimring.

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