Unless there is a last-minute stay, Troy Anthony Davis will die Wednesday by lethal injection, raising the distinct possibility that the state of Georgia will have executed an innocent man. His is perhaps the highest-profile death penalty case in the country, attracting the attention of such public figures as former President Jimmy Carter, Pope Benedict XVI and former FBI Director William Sessions, all of whom have called for clemency, as well as the European Union, which on Monday urged Georgia's pardons board to commute Davis' sentence. The board was not swayed. On Tuesday, after hearing hours of testimony from both sides, it rejected Davis' request for clemency and set the stage for his execution.
We have no idea whether or not Davis is innocent; he is the only person who knows for sure whether he gunned down 27-year-old police officer and former Army Ranger Mark MacPhail in a Burger King parking lot in Savannah in 1989. But there have been so many doubts raised since his conviction that it's impossible to state with any certainty that he's guilty, either. This is why his sentence should have been commuted to life without parole, and it's why the death penalty should be abolished. Once the ultimate sanction has been enforced, it's impossible to take it back when further evidence of innocence emerges.
If the U.S. justice system has failed Davis, it may be because it's so difficult to overturn capital convictions. A Georgia jury found him guilty, despite the lack of a murder weapon or any other physical evidence linking him to the shooting, based on witness testimony that later proved to be unreliable. Seven of the nine prosecution witnesses recanted their testimony after the trial, with some claiming it was coerced by police, and some witnesses have identified another man as MacPhail's killer. Yet appeals courts have opted not to reverse the jury's decision because even with all the troubling new details, defense attorneys haven't been able to prove by clear and convincing evidence that Davis is innocent. That's a different burden of proof than is required at trial, where prosecutors need to demonstrate guilt beyond a reasonable doubt. This means that even when new testimony raises doubts about the original verdict, it's sometimes not enough to save a defendant's life.
For a state to justify executing someone, the case against him or her must be ironclad. The case against Davis is anything but. Georgia's governor has no power to stop executions, and Davis' defense attorneys may be out of options. His execution, if it proceeds, should remind all Americans of the potential for injustice lying at the heart of a primitive method of punishment.