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Globe Editorial

Georgia execution shows flaws in the death penalty system

September 23, 2011

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IF THE facts available to the Georgia State Board of Pardons and Parole this week had come before a jury 20 years ago, it’s unclear that Troy Davis would have been convicted in the 1989 murder of off-duty police officer Mark McPhail, much less been sentenced to death for it. But Davis was put to death anyway Wednesday. It was a grim end to a case that shows even a questionable verdict becomes all but impossible to undo once a trial jury reaches it.

As Davis’s execution approached on Wednesday night, supporters of capital punishment made much of the two decades of appeals he had supposedly been afforded. But convictions are easy to uphold when judges decline - as a matter of standard procedure - to second-guess the original jury, and it’s sadly unsurprising that the original verdict stood despite substantial evidence that it was flawed. There was no physical evidence; Davis was convicted after being identified by eyewitnesses, most of whom later backed off their testimony. Some said investigators had pressured them. Some accounts of the incident pointed to a different suspect. At least three jurors who originally convicted Davis now say they would not have done so.

Doubts like those proved sufficient to win Davis three previous stays of execution, but never a permanent reprieve. On at least two occasions, divided judicial panels came one vote short of granting him new hearings. In 2009, the US Supreme Court went so far as to give him an opportunity to prove his innocence before a lower court. In that proceeding, the judge found that the case against Davis was not “ironclad’’ - but let his sentence stand after concluding that Davis had failed to prove his own innocence and that “most’’ reasonable jurors would vote to convict. This week, Davis failed to gain clemency from Georgia’s pardon board. The Georgia Supreme Court and the US Supreme Court also declined to intervene.

Yet in blandly, bureaucratically refusing to second-guess juries in many death-penalty cases, courts are abdicating their responsibility to treat these cases with the highest of care - even as the advent of DNA evidence has exonerated at least 17 Americans who spent time on death row. Meanwhile, death-penalty proponents have resorted to arguments they cannot possibly believe: that the justice system unfailingly determines guilt or innocence, or that the occasional reversal is proof that the whole system works. Other proponents acknowledge - more honestly, at least - that there is some possibility of executing the innocent but support the death penalty anyway.

And yet to many other Americans, this seems deeply callous - especially in light of a state’s ability to keep convicted murderers behind bars without the possibility of parole. And then, should evidence of a prisoner’s innocence ever emerge, he could at least enjoy what remains of his life in freedom. Troy Davis, who might or might not have been innocent, doesn’t have that option.