Troy Davis Case Renews Death Penalty Debate

The state of Georgia is scheduled to execute Troy Davis on Wednesday, two decades after he was sentenced to death for killing police officer Mark MacPhail. WABE's Charles Edwards and David Savage of the Los Angeles Times discuss the case and the death penalty debate it has rekindled.

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NEAL CONAN, host: This is TALK OF THE NATION. I'm Neal Conan, in Washington. The execution of Troy Anthony Davis is scheduled four hours from now at the state prison in Jackson, Georgia. The State Board of Pardons and Parole denied a clemency appeal yesterday and declined to reconsider it today.

An off-duty police officer named Mark Allen MacPhail was shot and killed in Savannah 22 years ago. Two years later, a jury of seven blacks and five whites convicted Davis of the murder and handed down the death penalty.

Since then, there have been three stays of execution, including one issued by the Georgia Pardons Board and another issued by the U.S. Supreme Court. And several witnesses in the original trial recanted their testimony.

Davis' many supporters include the pope, former FBI Director William Sessions and former President Jimmy Carter. Throughout, he's proclaimed his innocence, while prosecutors and the victim's family maintain that the right man sits on death row.

The Davis case raises questions about eyewitness testimony, the length and expense of appeals, about race, allegations that witnesses were prompted by police, about who gets new hearings and why. What issues with the death penalty does this case raise for you? Give us a call: 800-989-8255. Email: talk@npr.org. You can also join the conversation on our website. Go to npr.org. Click on TALK OF THE NATION.

Later in the program, director, choreographer Bill T. Jones, as his musical "Fela!" starts a national tour. And if you tuned in to hear our conversation on the end of "don't ask, don't tell," we've rescheduled that to talk about Troy Davis and the death penalty today.

We begin with Charles Edwards, a reporter at member station WABE in Atlanta. He joins us from a studio there. And thanks for taking the time out.

CHARLES EDWARDS: Thank you, Neal.

CONAN: And are there any appeals possibly left?

EDWARDS: Based on legal experts that we've talked to, and based on the way the trial has proceeded, it doesn't seem like there are any legal options left. He has really - and when I say he, Troy Davis - has really tried to exhaust all of the legal options available to him, trying to get a stay of execution, which is what they've been trying to do today, trying to get the Board of Pardons and Paroles to reconsider its decision not to grant clemency.

Two years ago, the U.S. Supreme Court said we won't hear the case, but we will order an evidentiary hearing in Savannah, where the murder of Mark Allen MacPhail took place. They had that evidentiary hearing, but the judge in that case said I don't hear enough to grant another trial. So they're tried all these different avenues, but so far, they have not been successful.

CONAN: Is - are there vigils, demonstrations?

EDWARDS: There have been vigils. There have been demonstrations, a lot of protests and a lot of rallies. You hear two different cries a lot. One, you hear a lot of people saying too much doubt, too much doubt. You're seeing that in the public and a lot on social media. And that is a statement that seven of the nine witnesses who have - who did testify against Troy Davis earlier on have since recanted their testimonies. That adds to the phrase too much doubt that you're hearing people say.

You also hear people say I am Troy Davis, and you've seen that shouted in the streets of Atlanta, also around the nation and the world. You've also seen people wearing shirts saying I am Troy Davis, a lot of people identifying with what they believe to be too much doubt in this case.

CONAN: The State Board of Pardons, as you mentioned, denied that final clemency request yesterday. Who sits on that board?

EDWARDS: It's a five-member panel, and they are all appointed by the governor. The current Governor, Nathan Deal, did not appoint any of the members that are on this panel. And they basically serve at the pleasure of the governor, and they do this on a pretty routine basis.

They hear from prisoners who say that they should be granted clemency or should be granted parole, and after listening to people on both sides of any particular case, they make their decision.

They don't really talk much. They say what they rule, whether it's for or against an inmate. They don't really explain why they issue the decision that they do. So in a lot of ways, they're a very innocuous board, except for when you get large cases, international cases - or I should say cases that get a lot of international attention like the Troy Davis case.

CONAN: And does - because of their existence, does the governor have the option to issue a pardon if he should choose to?

EDWARDS: So Georgia is a really interesting state. It really depends on states. There are some states where the governor is sort of a last resort if the Board of Pardons and Paroles decides not to grant an inmate clemency.

Georgia is one of those states that does not have that power. So even though you have groups like the NAACP, who have said that, you know, Governor Nathan Deal cannot wash his hands of this case, the State Board of Pardons and Paroles is really the last legal option that you have other than, you know, the U.S. Supreme Court possibly stepping in or things of that nature.

So the governor does not have any last-minute power after the State Board of Pardons and Paroles issues a result. But that also is kind of a political question, because some say, well, if these members are appointed by the governor, then the governor can, you know, privately or publicly, you know, push for the board to act in a certain way. And we haven't seen this governor make too many statements. But again, the members on this current board were not appointed by the governor. They were appointed by his predecessor.

CONAN: You mentioned the NAACP. Edwards is black. The case is in Georgia. Has race been a factor in this case?

EDWARDS: Race has definitely been a factor. I mean, yesterday - it's been interesting to listen to his supporters, because they have walked a very fine line before the clemency hearing, saying that this board has a great responsibility, also saying that we respect the MacPhail family, really trying to tone down a lot of the racial rhetoric.

Since the clemency - since the clemency hearing, where the clemency was denied, then you've heard a lot of his supporters say this is Jim Crow in a new way. This is a real reflection back to the old South. So there's always been a bubbling of race here, especially when you're talking about a black man and a white police officer in the late - around 1989.

So there's always been race as a factor, here, but it has really started to bubble up in the last couple of days.

CONAN: The execution is scheduled for 7 p.m. Eastern time at Jackson State Prison. Can you set the scene for us? What is that like?

EDWARDS: So one of my colleagues who has been down to Jackson State Prison to watch another execution said a lot of times, you know, you don't really have a lot of people show up to these executions. In fact, when it comes to media witnesses, they even have to try to make sure that they have enough media witnesses to go.

The Troy Davis case seems not to be like any other. You've also had people taking buses down, coming down by the hundreds. You've seen civil rights activists like Reverend Al Sharpton, who have already come down to Jackson, Georgia. So the scene in Jackson, Georgia, from what we're understanding, is a lot different than what it usually is.

You're seeing a lot of people surround that area, hoping that their public appeals will have some sort of sway, or just saying if this execution goes forward, we don't want to be seen as being silent on the issue.

CONAN: And the method of execution, lethal injection?

EDWARDS: It - we've had a different set - we've had a different method of execution here in Georgia, because the other method was seen as unconstitutional. So it's a bit of a cocktail of sorts. And as you know, that really differs from state to state.

CONAN: Well, Charles Edwards, thanks very much for your time today. We appreciate it.

EDWARDS: Thank you for having me.

CONAN: Charles Edwards is a reporter for member station WABE. He's covered the Troy Davis case. And he joined us from the member station there in Atlanta.

And joining us here in Studio 3A is David Savage, who covers the Supreme Court for the Los Angeles Times and the Chicago Tribune. And David, nice to have you back on the program.

DAVID SAVAGE: Hi, Neal.

CONAN: And it's interesting, Charles Edwards mentioned that this case was before the Supreme Court just a couple of years ago.

SAVAGE: Yes, they did something very unusual. You know, the Supreme Court sits to decide legal issues, and there was not really a great legal issue or constitutional issue in this case. The fundamental issue was: Did they get the right guy?

And so the Supreme Court did something unusual. Rather than hearing the case, they said we're going to send it back to Georgia and have a judge hold a hearing - you've heard this statement about seven of the nine witnesses recanted - to have the witnesses come in, take the testimony, and have the judge sort of review the case from start to finish and decide whether this person was properly convicted.

And as you know, the judge issued a long opinion, basically saying that I'm not convinced by any of the new evidence. Most of the witnesses repeated what they said, and...

CONAN: In the original trial.

SAVAGE: In the original trial, and that he said: I think a reasonable juror would not have been convinced - had they heard all this - to have exonerated Troy Davis.

CONAN: I wanted to ask you, this is a piece that was written for CNN.com by the former Republican congressman from Georgia, former U.S. Attorney Bob Barr, who said prove - that in that hearing, the federal judge decided that Troy Davis had to prove his innocence, rather than - we think of the other way around. He has to be proved - proving innocence is far more difficult than establishing doubts as to one's guilt and flips our system or criminal jurisprudence on its head, Barr wrote.

Instead of the American system's presumption of innocence and a requirement the state prove guilt, Davis' evidentiary hearing began with the court presuming guilt and required the condemned to prove his innocence.

Even though the judge in the evidentiary hearing denied Davis a new trial, he conceded the standard was extraordinarily high. Davis was unable to meet this nearly insurmountable task. But while he fell short of proving his innocence, he established doubts to his guilt, prompting the judge to concede the state's case against him was not iron-clad.

SAVAGE: Well, I suppose that's a fair way of putting it. Of course, if you're a judge, and the person has been convicted by a jury, what you want to know is: Is there new evidence that's come forward, new witnesses that would question, cause you to doubt that?

So the judge starts off with the presumption that the guy - that this defendant was properly convicted, and then wanted to know what's the new evidence.

I will say, though, Neal, I think these are always the very hardest cases, because if I told you that somebody was tried and convicted, and I think with a 90 percent - nine chances out of 10 he's guilty, and we're going to go ahead and execute him, I think a lot of people would stop and say, wait a minute. Nine chances out of 10? What about that - and that's the scary part of a case like this.

CONAN: It's interesting, you mention that in the Atlanta Journal-Constitution, a writer named Jay Bookman raised exactly that point: I can't say that I think Troy Davis, scheduled to be executed this week, is innocent. My best guess is he isn't. My best guess, having reviewed as much of the evidence as I can, is that Davis probably did kill MacPhail. But there is no DNA evidence in the case, no fingerprint evidence to substantiate the fact. The case is based almost entirely on testimony from eyewitnesses that, in some cases, has altered over the passage of time.

Davis should not be freed, the writer continues. The minimal doubt that may exist about his guilt does not rise to the level needed to justify overturning his conviction. However, the sense of closure and justice that would be provided to some by his execution does not outweigh the possibility that we would be compounding one tragic killing by committing another.

And that's exactly the conundrum that you raise.

SAVAGE: Yes, that's right. I've seen some of these cases over the years where you could think doubts are raised, and you can read the record, and you think, well, I'm not convinced this person is innocent, but I can't imagine executing somebody when there is a substantial doubt.

CONAN: We're talking about the death penalty case of Troy Davis and the many questions raised on both sides. We'll get to your calls in just a minute. What issues with the death penalty does this raise for you? Give us a call: 800-989-8255. Email: talk@npr.org. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION, from NPR News.

(SOUNDBITE OF MUSIC)

CONAN: This is TALK OF THE NATION, from NPR News. I'm Neal Conan. Troy Davis has been on death row since 1991. He's run out of appeals. Later today, around 7 p.m. Eastern time, he's scheduled to die by lethal injection at a prison in Georgia.

His case raises questions about eyewitness testimony, the length and expense of appeals, about race, allegations that witnesses were prompted by police, about who gets new hearings and why.

We want to hear from you. What issues does the death penalty - does this case raise for you? 800-989-8255. Email is talk@npr.org. With us here in Studio 3A is David Savage, Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune. And Troy Davis has been appealing his conviction for some years now. Let's get a call in on the phone. Dave is with us from Pensacola.

DAVE: Yes, sir. I appreciate your taking my call. I'm a former assistant attorney general of Florida, and I was the appellate public defender who set up the program in the state of Oklahoma. And I've handled more than 3,000 criminal appeals. And the most unreliable of all testimony is eyewitness testimony, according to Elizabeth Loftus and others.

Loftus is a psychologist in Washington who's done just batteries of double-blind testing on this kind of stuff. And eyewitness testimony is the most unreliable of all. And to have somebody go to the death chamber based on eyewitness testimony, and that alone, is just reprehensible. And on top of that, any system that exacts a penalty that cannot be reversed should be unconstitutional.

CONAN: Yet juries find eyewitness testimony compelling. There's somebody in front of them, says: Do you see the person who pulled the trigger in this courtroom? And he says, yes. He's sitting right there.

DAVE: That's true. But if you read Loftus' work, you can find that cross-racial identification is horribly bad. All black people look alike to white people. All Asians look alike to black people. All white people look alike to Asians. So at the end of the day, you're dealing with things that happen instantaneously and make an impression, but not necessarily are valid.

CONAN: And what's the remedy?

DAVE: What's the remedy? Well, get rid of the death penalty out of the box, because the death penalty exacts a penalty that cannot be reversed. You can't dig the guy up and breathe life into him like Lazarus if you did the wrong thing. And DNA is the best thing we've come up with so far on tying proof to the person, but eyewitness testimony has been - look, eyewitness testimony was used for years on all kinds of cases that were proven to be wrong. To give you kind of a laughable example is that for years, in trying paternity cases - they used to be called bastardy cases - but in trying paternity cases, they would hold a child up and say: Does this look like the father?

Well, I don't know. Does a - how many six-month-old children do you know that look like their father?

CONAN: Dave, thanks very much for the call. Appreciate it.

DAVE: All right. Have a good day.

CONAN: And David Savage, he's got a point. Those studies do exist. There have been rulings recently in the state of New Jersey about the procedure that the police should follow on eyewitnesses that might improve that procedure, too, and calling into question the value of eyewitness testimony.

SAVAGE: Yes. The scary thing about eyewitness testimony, Neal, goes back to the point you raised that at the time of the trial, you look across the courtroom and say do you recognize that man sitting there, and the witness confidently says, yes. I recognize - that's the man.

But frequently, on the night of the crime, the person doesn't - can't identify the person that well. At this case, there was a tall, skinny guy in a white T-shirt. And a couple days later, the police put out a wanted poster with the picture of Troy Davis. And some of these witnesses who were not so sure that they could recognize him later on said yes, I recognize that face.

And then they become more sure of it. So their very certainty that they can identify the person, the thing that convinces the jury is why it's so scary and why it's so important to sort of change the police procedures so that from very early on, the police are not doing anything that causes the person to think, oh, that's the guy I should be identifying, that person.

CONAN: Here's an excerpt from a Times, New York Times editorial: The grievous errors in the Davis case were numerous. Many arose out of eyewitness identification. The Savannah police committed the - contaminated the memories of four witnesses by re-enacting the crime with them present so that their individual perceptions were turned into a group one.

The police showed some of the witnesses Mr. Davis' photograph even before the lineup. His lineup picture was set apart by a different background. The lineup was also administered by a police officer involved in the investigation, increasing the potential for influencing the witnesses.

In the decades since the Davis trial, science-based research has showed how unreliable and easily manipulated witness identification can be. Studies of 100 felony cases overturned because of DNA evidence have found that misidentifications accounted for between 75 percent and 85 percent of wrongful convictions. The Davis case offers egregious examples of these kinds of error.

There is no DNA evidence in this case. There was no weapon found. It is eyewitness testimony.

SAVAGE: Yes. This is sort of a 10 or 15, 20-year revolution that's going on very slowly in the criminal justice system, and the previous caller alluded to it. DNA came along, more DNA testing, and lo and behold, to the shock of prosecutors, judges and a whole bunch of other people who had great faith in the criminal justice system, a lot of people were in prison, and they were innocent.

And when they went back and looked at their cases - for example, rape cases - the woman very strongly identified the person as that's - that was the culprit, and it was the wrong person. And now, as you say, one of the major factors was faulty eyewitness testimony, and that's what's at the heart of this case.

CONAN: Let's get another caller in. Robert's on the line, Robert with us from Ashland in Oregon.

ROGER: Hi, Neal. It has always seemed very inappropriate to me for family members of victims to be given so much publicity and therefore influence, perhaps, on the judicial system. The victim's mother here has got to be one of the least impartial people in the universe, and it irks me to keep hearing quotes from her.

That's why we have a justice system. She would never be allowed on a jury. If she was a judge, she'd have to recuse herself. I think the media collaborates with this, and there ought to be a disclaimer. It's just - I think that is part of the victims' rights movement that is a grave error.

CONAN: If the mother of the victim had come out and said wait a minute, I'm not sure the verdict is right, would you credit that?

ROGER: Well, I would be impressed by her open-mindedness, but she is just an individual who has some very severe stressors that are going to point her away from impartiality. So I just don't think that the victim's family should be heard from quite so much. I don't mean to be cold about it, but it moves us away from impartiality in the system.

CONAN: Well, here's - this is a cut of tape of Joan MacPhail-Harris, the widow of the officer Troy Davis stands convicted of killing. She spoke with the media yesterday, after the Georgia Board of Pardons and Paroles rejected a last appeal for clemency. Standing with her family, she said that calling Davis a victim in the process is ludicrous.

(SOUNDBITE OF PRESS CONFERENCE)

JOAN MACPHAIL HARRIS: We have lived this for 22 years. We know what the truth is, the truth that came out in the trial and the truth that Troy is not innocent, the truth that everything that they have tried to say - that is, you know, recantations and everything else - has been a lie. Our judicial system has said so, and he's had ample time to prove his innocence, and he is not innocent.

CONAN: David Savage, victims' rights, more and more families are present at parole hearings, for example, and things like that.

SAVAGE: Yes, I think I don't really agree with the caller - the previous caller's point, because certainly the family of - in this case - Troy Davis can come forward and say you should not go forward with this execution. You're executing an innocent man.

And it seems to me if the press is going to allow the defendant's family to be a part of the story and voice their view, obviously, they're - they could be said to have a bias, too. They don't claim to be impartial. I don't see there's too much wrong with allowing the victim's family to speak in the press.

You wouldn't want the victim's family to decide the cases as a judge or juror, but as a - I don't see the problem of allowing them to speak and state their view.

CONAN: Email from Laurie in Las Vegas: My father was killed in the line of duty in 2004. I completely understand the officer's family's need to close the book on the sad loss of their loved one. My own thoughts about the death penalty have changed since my father's death. Putting that person deemed responsible for the killing to death does not bring my father back.

The horrifying part of this story is that perhaps Mr. Davis is innocent. How can we, as a society, apply the ultimate penalty, a penalty that can't be undone, in a case when we are not absolutely positive of his guilt? And that raises the question: Courts are arranged so that they try the case, and it's beyond a reasonable doubt. And if a person is found guilty, it's difficult to get a retrial, David.

SAVAGE: Yes, well, there is - in a lot of courts around the country, these cases go on for a long time. You know, you don't get tried and executed six months later in this country. There are a lot of appeals. And to state it most idealistically is that we allow a lot of time for even a new set of attorneys to come in after the trial to file a civil suit. It's called a habeas corpus suit. It's basically a second-chance appeal system. And you can raise any issue, and you can investigate the case from the start.

And while this case is going forward - and we've been talking about how it's difficult when you get a case, it gets to the very end and there's still a doubt remains. There are an awful lot of cases around the country that stay in the appellate process because judges have a doubt. They order new hearings. And that's why there are 3,200 persons on death row in this country, and there are, in a normal year, a couple dozen executions. And part of it is because we've got a system to have a double check, a triple check and a lot of years of appeals.

CONAN: I wanted to read an excerpt from a piece Ellis Cose wrote in - for The Daily Beast. This is - in his opposing brief, Georgia's attorney pointed out that six court proceedings in the state parole board have already rejected the recantations. This latest gambit, he argued, was simply an attempt to circumvent the law. We, as attorneys, are bound - we know what the ground rules are, says Russ Willard, spokesman for the attorney general. What Willard will not say is that Davis is actually guilty.

The trier of fact is the jury, he says. What's the burden on the state, asks Ellis Cose. The answer - implicit, but generally unstated - is that others may follow Davis' lead. In 1963, when the Supreme Court ordered an evidentiary hearing for a man convicted of murder on the basis of drug-induced confession, Earl Warren took note of that concern. The too-promiscuous grant of evidentiary hearings could both swamp the dockets of the district courts and cause acute and unnecessary friction with state organs of criminal justice. So prosecutors generally prefer to let verdicts stand.

SAVAGE: Certainly, prosecutors are not in favor of going back and retrying the cases again. But that's the real push and pull of the system, that defense attorneys don't - you know, want a chance to go back and reinvestigate the case and appeal on all the issues. Prosecutors would prefer to say, look, this case was tried. It's over and done with. For years, I've covered the Supreme Court, and there's always been that dispute between the conservative justices saying: Haven't these appeals gone on long enough? And many of the liberal justices say: There are serious issues, here. Do you want to close the book and simply not consider these appeals?

CONAN: David Savage is with us. He covers the Supreme Court for the Chicago Tribune and the Los Angeles Times. We're talking about the issues raised around the death penalty by the case of Troy Davis. You're listening to TALK OF NATION, from NPR News.

And this email from Rob: It raises the same issue that every execution raises with me. Unless we can guarantee with 100 percent accuracy that an individual is guilty of capital crimes, we do not have the right to take their life away from them. Since our justice system has demonstrated time and time again that it is imperfect, as are all human endeavors, we should not presume that it is capable of determining who lives and who dies. And you can hear that argument, but you can also look at the opinion polls and say that something like two-thirds of the American public supports the death penalty.

SAVAGE: Yes. And even that caller's - that there are some cases where there's DNA evidence, or there's - really no doubt about the guilt. So it is not true that all death sentences, there's a residual doubt. There are cases where, I think, everybody, even that defendant sometimes agrees that he committed the crime, but there are some extenuating circumstances. But it - certainly, there are a large category that, even to the end - I've been surprised all the years I've been doing this, where you see a case that comes up and you read one side of the brief and you think, well, this guy's clearly guilty.

And then you read the briefs on the other side, and what you learn was two fellows committed some crime. They shot somebody at a 7-Eleven. And suspect A goes and tells the police, well, it was my friend B who did the crime. And B's the guy on death row. Years down the road, and you realize it could have been Mr. A that did it, not Mr. B.

CONAN: Well, that's the way you get convictions. You get somebody to flip on somebody else. And whoever comes up with the agreement to plea out first gets the deal.

SAVAGE: Absolutely right. And that's - those are very scary, because witness A is a very strong - he could say, I was in there. I saw Mr. B did the shooting, and I want to, you know, testify. And it turns out, he may be lying.

CONAN: Here's an op-ed that appeared in the Savannah Morning News yesterday: Many death penalty foes are appalled by this outcome, which is their right, but capital punishment is still permitted in Georgia. The place to fight the death penalty is before the Georgia Legislature, not the courts. There's no question that Davis has been well-served by some highly skilled attorneys who oppose the death penalty. They have filed numerous appeals regarding the trial and the testimony. Their zeal has been impressive. But facts are facts, and the law is the law. The death penalty, once administered, can never be rescinded. That's why appeals are automatic - why it's wise to take a close look at every case. Davis was the beneficiary of several close looks. Now, perhaps "justice can be served," quote, unquote.

That, some people would say, 20 years of appeals and 20 years of looking, well, enough is enough.

SAVAGE: One of the things that's happened in a lot of states over the last 20 years, Neal, on this front that's important and a lot of people wouldn't pay attention to, is almost all the states have adopted life without the possibility of parole as an option, because a lot of persons were sentenced to death because they were worried, if we don't sentence this person to death, I really think he's a violent, dangerous guy. He may get out in 20 or 25 years, 30 years. But if you give jurors the option to say, you can send this person to prison for life and he will never leave prison, and there's a little bit of a residual doubt about the guilt of this person, I think a lot of jurors - a lot of defense attorneys can make that argument, and a lot of jurors would say I'm going to err on this side. I think this guy is guilty. I think he's violent. He needs to stay in prison, but I'll sentence him to life without parole. And that's why some of the death penalty numbers have gone down.

CONAN: And some advocates of that point out that's a lot less expensive than fighting all of these appeals, And this email from Mattie(ph): Could the president grant a pardon from execution?

SAVAGE: I should know the answer to that, and I don't, but I think the answer is no. I think the president can pardon anybody for any federal crime, but this is a state death sentence being imposed, and I don't think the president has the authority to intervene in such a case.

CONAN: Troy Davis is scheduled to be executed in Georgia in, well, about three-and-a-half hours' time. David Savage, thanks very much for your time.

SAVAGE: Thank you, Neal.

CONAN: David Savage covers the Supreme Court for the Los Angeles Times and the Chicago Tribune. Coming up: dance legend Bill T. Jones. His latest production "Fela!" just launched a national tour. Got to see it last night here in Washington. We'll talk with him about his new show and his remarkable career. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION, from NPR News.

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