A Day of Shame for Georgia

By Bianca Jagger, Reader Supported News

20 September 11

The execution of Troy Davis is nothing less than state-sanctioned murder.

oday, the 20th of September 2011, the Georgia State Board of Pardons and Paroles refused clemency to Troy Davis, giving the green light to his execution by lethal injection tomorrow, at 7pm. If Troy Davis' execution is carried out, it will shame both Georgia, and the US justice system. Executive clemency is meant to be a fail-safe where the courts have been unwilling, or unable to act. Larry Cox, head of Amnesty International USA, called it "unconscionable" that the board denied Davis relief, adding that Davis was "to be sent to death under an enormous cloud of doubt about his guilt ... an outrageous affront to justice." It is vital that the State of Georgia grant clemency to Troy Davis and halt a wrongful execution. Otherwise, tomorrow, he will be killed. The US judicial system has failed to establish Mr Davis's guilt beyond reasonable doubt.

I appeal to the Board of Pardons and Paroles to reconsider their decision.

I urge Chatham County District Attorney Larry Chisolm to intervene, and call for a withdrawal of Troy Davis' death warrant without delay.

To execute Troy Davis, an innocent man, under these circumstances, would be state-sanctioned murder.

Work With the Death Penalty

I have witnessed the state machinery of death at work, selectively killing people because they are poor, a minority and cannot afford adequate legal counsel. In 2000 I witnessed the execution of Gary Graham, an innocent man, who was a juvenile when he was sentenced to death in Texas. I am sickened by the thought that another innocent man is going to be executed. The similarities between Gary Graham's and Troy Davis' cases are shocking.

For nearly three decades I have campaigned for justice and human rights throughout the world. I have called for the abolition of the death penalty worldwide because I believe that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment" in the name of justice as stipulated in Article Five of the Universal Declaration of Human Rights. The death penalty is the ultimate denial of human rights, a premeditated and cold blooded killing of a human being by the state. I have spoken on behalf of numerous prisoners on death row; many among them have already been executed. In 2003, I was appointed Council of Europe's Goodwill Ambassador "for the abolition of the death penalty.' Through the Bianca Jagger Human Rights Foundation, I continue to advocate and campaign on behalf of prisoners on death row.

Troy Davis' Case

Troy Davis was sentenced to death in 1991 for the murder of off-duty police officer Mark Allen MacPhail, who was shot dead outside a Burger King in Savannah, Georgia in 1989. Officer MacPhail was intervening on behalf of Larry Young, a homeless man, who was being harassed in the parking lot of the Burger King. Officer Mark Allen MacPhail was killed while off duty, during an act of bravery, while trying to keep the peace. His murder was a terrible crime and a tragedy. His family and friends have my deepest sympathy. The murderer of Officer MacPhail must be brought to justice. However, justice will not be served by executing Troy Davis, an innocent man.

Mr Davis's case presents extremely disturbing facts that should not be disregarded.

• No physical evidence directly links him to the murder.



• No murder weapon was ever found.



• The case against him primarily rested on witness testimony, which contained inconsistencies even at the time of the trial.



• Since his trial, seven of nine key witnesses have recanted or changed their testimony, some alleging police coercion.



• Throughout the trial and subsequent appeals, Troy Davis has maintained his innocence.

The dubious nature of the evidence in this case is cause for grave concern. The Board of Pardons and Paroles has recognized this in the past: In 2007 Troy Davis was less than 24 hours from execution when the Georgia Board of Pardons and Paroles issued a stay. The Board said that it would not allow an execution to go ahead "unless and until its members are convinced that there is no doubt as to the guilt of the accused". Since then Troy Davis has faced two more execution dates, both in 2008, which were stayed by the courts. How can the Board of Pardons and Paroles deny him clemency, when so much doubt surrounding his guilt persists?

According to Amnesty International, "one of the two witnesses who has not recanted his testimony is Sylvester "Red" Coles - the principle alternative suspect, according to the defence, against whom there is new evidence implicating him as the gunman. Ten individuals have signed affidavits implicating Sylvester Coles."

One of the witnesses who appeared at a June 2010 evidentiary hearing was Benjamin Gordon, who, at the 2008 hearing, had signed a statement that an alternative suspect had told him that he had shot Officer MacPhail. At the hearing, Benjamin Gordon asserted for the first time that he had actually seen this individual shoot the police officer. Benjamin Gordon, who had just turned 16 at the time of the crime, again alleged that he had been coerced by police into signing a statement implicating Davis. He said that he had not come forward sooner with the assertion about seeing who shot the officer out of fear, and that he had decided to "come in today and just let the truth be known." Judge Moore, however, concluded that Benjamin Gordon was "not a credible witness."

Another seven witnesses have also recanted their testimony, and spoken out over the course of the appeals for Troy Davis, adamant that he is innocent.

According to the Atlanta Journal-Constitution, one witness, Jeffrey Sapp, gave an account of how "police awakened him late one night and took him in for questioning. He said one officer was yelling at him in one ear, another officer was yelling in his other ear and another was yelling at him from behind."

"I was so scared I told them anything they wanted to hear," he testified. "They kept saying, 'Just say Troy told you. Just say Troy told you.'" Another witness, Kevin McQueen, also testified at trial that Davis told him he shot and killed MacPhail. At a later appeal, he said this had not happened. He had been trying to get back at Davis for a dispute. "There's no truth to it," McQueen said at the appeal. When asked by one of Davis' lawyers, Philip Horton, if he had anything to gain by testifying now, McQueen replied, "Peace of mind."

Troy Davis' case has been through the appeals process, and serious doubt over his guilt remains. Much of the evidence has been recanted, and it is far from conclusive. The Fifth and Fourteenth Amendments require proof "beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." This condition has not been met in the case of Troy Davis. The US judicial system has failed to establish Mr Davis's guilt. There are serious questions as to Troy Davis's criminal liability. To execute him under these circumstances would be an egregious travesty of justice. The many doubts surrounding his guilt make Mr Davis the ideal candidate for clemency. The State Board of Pardons and Paroles has failed in its duty, today.

Chatham County District Attorney Larry Chisolm can right this appalling injustice, and call for a withdrawal of Troy Davis' death warrant without delay.

Execution of the Innocent

The number of prisoners executed since the reinstatement of the death penalty in 1976, is 1267. Last year 46 were executed. Thirty five states still have the death penalty. These state sanctioned murders have no place in 21st century society. Only when it gets its own house in order can America claim to stand for freedom and justice. According to the Death Penalty Information Center, since the reinstatement of the death penalty in 1973, 138 people have been released from death row in 26 states with evidence of their innocence. From 1973-1999, there was an average of 3.1 exonerations per year. From 2000-2007, there has been an average of 5 exonerations per year.

They were the fortunate ones that got away before it was too late, sometimes within minutes of being killed, but no one knows how many innocents have been executed. At least 39 executions are claimed to have been carried out in the U.S. in the face of evidence of innocence or serious doubt about guilt. Newly-available DNA evidence has allowed the exoneration and release of more than 15 death row inmates since 1992, but DNA evidence is available in only a fraction of capital cases. There is too much doubt, and too much potential for error for the State to justify the irrevocable, final step of taking a life. In Troy Davis' case, the inconsistencies are glaring, and deeply troubling. As Larry Cox, head of Amnesty International USA, said today, "Should Troy Davis be executed, Georgia may well have executed an innocent man and in so doing discredited the justice system".

It is impossible to ensure that innocent people are not executed. During his first presidential campaign President George W. Bush said "I am confident that every person that has been put to death in Texas on my watch has been guilty of the crime charged and had full access to the courts." However it was during his tenure as Governor that I witnessed the execution of a man I believe to have been innocent: Gary Graham. One of the most serious arguments against the death penalty is that our legal systems are not infallible. Miscarriages of justice occur far more often than most people realize. When the state executes an innocent person it is a state sanctioned murder. I dread that Troy Davis will become another victim.

Application of the death penalty is disturbingly arbitrary. Stays of execution and reprieve are granted erratically, according to Judge Boyce Martin, Jr. who described the current application of the death penalty in the US as: "[T]he dysfunctional patchwork of stays and executions going on in this country ... In some instances stays are granted, while in others they are not and the defendants are executed, with no principled distinction to justify such a result."

A system that claims to be just according to American law should not have death sentences concentrated in only one region. However, studies in the USA show that whether a person receives the death penalty depends heavily on where the crime was committed. As the Death Penalty Information Center states, "the 2009 FBI Uniform Crime Report showed that the South had the highest murder rate. The South accounts for over 80% of executions." The death penalty is unfair, arbitrary and capricious, often based on jurisprudence fraught with racial discrimination and judicial bias.

Arbitrary Clemency in the United States

Clemency should have a proper role in correcting legal mistakes in an imperfect system. In a decision written by Chief Justice William H. Rehnquist in Herrera v. Collins, the Supreme Court said that clemency "is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted." January 25, 1993 The Court further stated that "it is an unalterable fact that our judicial system, like the human beings who administer it, is fallible." In essence, the people must and should have a last recourse through the executive branch when the courts have failed. Deplorably, in the United Stated there is a lack of meaningful appellate review in commutation proceedings. Defendants have poor access to executive clemency and too often the States fails to recognize the defendant's capacity for change, rehabilitation and remorse. Those who are executed are rarely those who have committed the worst crimes; the death penalty is a Russian roulette.

A system of jurisprudence based on arbitrariness and whim cannot be deemed a justice system. The application of the death penalty is erratic, unwarranted and 'dysfunctional.' The US cannot continue to execute its citizens under such loose, bungling mechanisms. Yet this 'dysfunctional' system has been given executive power to take Troy Davis' life tomorrow.

Every measure possible must be taken to ensure that Troy Davis is not murdered at the hands of the state tomorrow evening. I have watched an innocent man executed by lethal injection. It was a devastating experience. Whether the person tied to the gurney awaiting execution is guilty or innocent, it is wrong, and barbaric.

Gary Graham

In June 2000, I witnessed the execution of Gary Graham, who asked that he be known as Shaka Sankofa. People throughout the world believed Gary Graham to be innocent. I am convinced that he was. Gary Graham was 17, a minor when he was sentenced to death. He spent 19 years on Death Row for a crime he time and again denied that he committed. He was sentenced to death based on the strength of one eyewitness testimony. Evidence, subsequently uncovered, calls into question this witness identification. Six other witnesses signed affidavits stating that the killer was not Gary Graham. He could have been saved by The State Board of Pardons and Parole and yet they denied clemency. Gary Graham was executed on 22 June 2000.

I cannot put into words my feelings on that day. Gazing through a Plexiglas window, I could see Gary Graham tied to a hospital trolley and about to be killed. It reminded me of a modern-day cross. I was terrified at the thought of witnessing another human being killed.

His forehead was in held in restraint by a leather strap and he had to strain his head to look at us. His look was intense. Suddenly, he began to speak. He knew they would be his last words on earth: "I'm an innocent black man that is being murdered. What is happening here is an outrage for any civilized country." It was at that point that I broke down. We told him we loved him. I put my hands and face on the glass. I was just four feet away.

I was in Texas, in the United States of America, a country that proclaims itself to be the world's most progressive force on human rights. But we were witnessing the execution of a man about whose alleged crime there were many disturbing doubts. His last words were a chilling reminder of the racial prejudice and bitter injustice that pervades the American judicial system. It is a place where life, liberty and happiness are all too often replaced by the pursuit of death, imprisonment and hatred.

We thought that they would begin the execution procedure when he stopped making his last statement, but they had been killing him as he was talking to us. He called me by name before he died.

The similarities between Gary Graham and Troy Davis are uncanny. Both have been convicted for crimes over which there are many disturbing doubts. Both maintained their innocence for almost two decades. Their convictions both rest predominantly on witnesses testimony, most of which has been recanted. Both are African American men accused of killing a white man, struggling for clemency in a southern American state.

Conclusion

Camus has said that "Capital punishment is the most premeditated of murders." There is no excuse for any country in the world, in the twenty first century, to continue to execute their citizens. Some nations have applied this barbaric practice for centuries at an unthinkable cost. That cost is both ethical and financial, but most of all it is a horrendous cost of human life, and of innocent lives. As long as the US continues to be a bastion of the death penalty, it cannot claim to be a beacon of democracy.

However, whether one supports or opposes the death penalty, a central tenet of the American justice system is that those who receive the government's harshest punishment must have been proved guilty beyond reasonable doubt. Too many disturbing doubts remain in the case of Troy Davis.

Troy Davis' execution would only serve to complete the cycle of violence. By reconsidering their decision, the Board of Pardons and Paroles would demonstrate Georgia's commitment to upholding the law, and the principles of fairness and justice. Nothing can undermine public faith in a criminal justice system faster than an execution when there are still serious doubts about guilt. Georgia cannot afford to make such a mistake.

I once more appeal to the Board of Pardons and Paroles to reconsider their decision.

I urge Chatham County District Attorney Larry Chisolm to intervene, and call for a withdrawal of Troy Davis's death warrant without delay.

I urge you to do everything in your power to prevent this injustice from taking place.

If Troy Davis is executed tomorrow it will be a day of shame for Georgia, and for the US justice system.

Bianca Jagger is a Council of Europe Goodwill Ambassador to Abolish the Death Penalty and a Member of the Executive Director's Leadership Council, Amnesty International USA.