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Did Troy Davis death-penalty case expose flaws in 'executive clemency'?

The Georgia Board of Pardons and Paroles stood firmly behind the 1991 murder conviction that put Troy Davis on death row. But the many doubts in the case have raised questions about 'executive clemency' as a fail-safe for the death penalty.

By Staff writer / September 20, 2011

Anneliese MacPhail, left, mother of slain Savannah police officer Mark MacPhail, his son Mark Jr., wife Joan and daughter Madison, react after a Georgia clemency board hearing for convicted killer Troy Davis in Atlanta, on Monday. MacPhail's family said they urged the board to deny his petition and carry out the jury's verdict.

David Tulis/AP

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Atlanta

Unreliable eyewitnesses, the impact of race on a jury in the Deep South, the difficulty of proving innocence once convicted: Troy Davis's long journey through the US judicial system has hit nearly every sensitive button in America's complex relationship with the death penalty.

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On Tuesday, the Georgia Board of Pardons and Paroles declined a final clemency bid by Mr. Davis, 42, who has spent 20 years on death row for the murder of an off-duty Savannah, Ga., police officer in 1989. The board reaffirmed the validity of the original conviction by a jury of his peers. His execution by lethal injection is scheduled for 7 p.m. Wednesday.

But to many legal experts, doubts raised about Davis's guilt after his conviction raise new questions about the Supreme Court's determination that so-called "executive clemency" – the power of a governor or review board to commute a death row sentence – is an adequate fail-safe for assessing death-row innocence claims.

"If a case like this doesn't result in clemency, which is a discretionary process that calls a halt to an execution based on doubt surrounding the integrity of the verdict, then it suggests that clemency as a traditional fail-safe is not adequate," says James Acker, a criminologist at SUNY-Albany. "The Davis case raises doubts about the discretionary clemency process and ultimately raises doubts about whether the legal system can tolerate this potential error in allowing a person to be executed."

While the number of people executed in the United States has dwindled steadily over the past 15 years, a majority of Americans – about 64 percent – still support the death penalty. At a recent GOP presidential candidate debate, a crowd cheered when Texas Gov. Rick Perry, the current Republican frontrunner, noted the 234 executions carried out under his watch.

But also this summer, an Arkansas judge allowed a complex legal maneuver to free three men known as the West Memphis 3, including one who was on death row, for the murder of three boys 18 years ago. Moreover, North Carolina, once one of the most active death-penalty states, currently has a moratorium on the sanction.

"The death penalty is really fading in the United States, and there is a lot of disagreement about why that is, but certainly, (there are) fewer executions than there used to be," said the New Yorker's legal writer, Jeffrey Toobin, in a CNN interview Tuesday. "But this one does appear to be going forward, even with all the protests."

DNA-based death row exonerations have influenced the public's view, but the Troy Davis case rises to the top of the death-penalty debate for several reasons. For one, he is arguably the best-known person on any US death row, and the show of public support for a new trial has been unprecedented, with nearly 700,000 people petitioning the parole board. Global figures like Pope Benedict XVI, Archbishop Desmond Tutu, former President Jimmy Carter, and even death-penalty supporters like former Congressman Bob Barr, all urged the parole board to either commute his sentence or give him a new trial.

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