(photo: dabnotu )

The Georgia Board of Pardons and Paroles has denied Troy Davis clemency. The five-member board reviewed pleas for clemency yesterday and did not make a decision until this morning. Davis is scheduled for execution tomorrow, September 21. Clemency or the issuance of a stay of execution was Davis’ last available avenue for avoiding lethal injection.

The execution date is the fourth execution date set and human rights groups like Amnesty International and supporters from all over the world have been engaging in demonstrations and petition campaigns to show how there is “too much doubt” in Davis’ case to execute him. [Democracy Now! had excellent coverage of the Board’s decision this morning. For anyone unfamiliar with Davis’ case, watch the segment.]

A communications log published by WikiLeaks from Philip Alston, US Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, shows Alston took direct interest in Davis’ case. Alston sent an email to the US Mission in Geneva, Switzerland on September 12, 2008, just before the Georgia Pardons and Paroles Board was to review the case. Alston recounted the Davis defense’s “numerous unsuccessful attempts to obtain a hearing to present post-conviction evidence.”

In recent years, Mr. Davis’ defense has made numerous unsuccessful attempts to obtain a hearing to present post-conviction evidence, including affidavits from the seven out of nine non-police witnesses who have recanted or changed their testimony subsequent to the conviction. In 2007, a Georgia trial-level judge dismissed Mr. Davis appeal for a new trial without conducting a hearing. On 17 March 2008, the Georgia Supreme Court ruled on the appeal against this decision. In a 4-3 ruling, it decided that the lower court had not abused its discretion.

The Chief Justice of the Georgia Supreme Court authored the dissenting opinion. She noted that “nearly every witness who identified Davis as the shooter at trial has now disclaimed his or her ability to do so reliably”. Most importantly from the perspective of international law, the Chief Justice argued that “this case illustrates that this Court’s approach in extraordinary motions for new trials based on new evidence is overly rigid and fails to allow an adequate inquiry into the fundamental question, which is whether or not an innocent person might have been convicted or even, as in this case, might be put to death.”

While acknowledging Davis had been granted “innumerable instances of appeal at the State and Federal level” thus protecting his right to have his conviction and sentence reviewed by “a higher tribunal of law” (pursuant to Article 14(5) of the International Covenant of Civil and Political Rights (ICCPR), which America is a party), Alston noted the review must allow for a “genuine review of the issues in the case” by the higher court.” He added, “The refusal of the courts to grant a rehearing with significant new evidence which casts doubt on the initial conviction appears to amount to a denial of the right to a genuine review as required.  [cont’d]

Of the utmost concern to Alston was the following:

Such a genuine review would be particularly appropriate in this case in the light of information regarding the alleged failure of trial counsel to conduct an adequate investigation of the state’s evidence, to which I drew your Government’s attention in a previous communication regarding this case dated 16 July 2007. I also noted that the Georgia Resource Center, a post-conviction defender organization (PCDO) which represented Mr. Davis, reportedly had its budget reduced by two-thirds and the number of lawyers on its staff reduced from eight to two at the time it was engaged in Mr. Davis’ defense. A lawyer working on Troy Davis’ case stated in an affidavit that “I desperately tried to represent Mr. Davis during this period, but the lack of adequate resources and the numerous intervening crises made that impossible, we were simply trying to avert total disaster rather than provide any kind of active or effective representation.”

Citing international law, Alston concluded, “In the present case there are grounds for concern that poor legal representation afforded to Mr. Davis since 1989 has denied him both the right to a fair trial and the right to effectively appeal against conviction and the death sentence.”

UN Special Rapporteur also considered Davis’ case to be an extraordinary abuse of the death sentence process, as he informed the US Mission:

Despite receiving a significant number of complaints in relation to the carrying out of the death sentence in the United States, I have only rarely acted on these complaints. In this instance I firmly believe that the case merits this urgent appeal and warrants immediate action on the part of the U.S. Government. The second is that I take no position either for or against the death penalty but act only when it seems clear that the risk of injustice is such that internationally accepted standards will be violated in the absence of urgent intervention by the Government.

Secretary of State Condoleezza Rice responded to Alston’s letter saying it was passed along to the offices of “Georgia Attorney General Thurbert E. Baker and Governor Sonny Perdue for information regarding the steps taken to comply with the State Party’s relevant obligations under international law.” She noted that on September 23, 2008, the US Supreme Court would decide whether to grant a “stay of execution” (the Court did in fact step in and prevent the execution from happening on his second execution date).

It does not appear the state of Georgia ever properly addressed Alston’s concerns.

Davis has gained significant support from former President Jimmy Carter, Archbishop Desmond Tutu, fifty-one members of US Congress and individuals like musical artist Cee Lo Green and former FBI director William S. Sessions. More than 600,000 people have signed a petition that was delivered on Friday to the parole board asking for a stay of execution.

Human rights violations being perpetrated by state governments in the form of executions, where defendants are not being given proper review, are earning increased international attention. Like the torturing of detainees at Guantanamo Bay, the abuse by state governments has become increasingly problematic. In July, Texas Governor Rick Perry refused to respect the objections of the US government and went ahead with the execution of Humberto Leal Garcia, a Mexican national.

In Garcia’s case, he had not been given “appropriate consular access,” which violated the Vienna Convention on Consular Relations. The Mexico government, according to Raw Story, said the execution would “jeopardize cross-border cooperation on joint ventures and extraditions.” Navi Pillya, a top UN official for human rights, issued a statement saying the US had breached international law.

The US Supreme Court recently halted the planned execution of Duane Buck by the state of Texas. During his trial, a “psychologist testified that black people were more prone to violence.” It is believed that he is guilty but this was apparently enough to warrant intervention and this time Perry complied.

The defense does not see any way they could succeed in saving Troy Davis. There is apparently nothing the US Supreme Court can do to stop the execution. As Georgia Congressman John Lewis said about the state’s decision, “We have confirmed that the administration of law is more important than the search for justice.”

As Special Rapporteur wrote in a UN report in 2009:

…Government officials seem strikingly indifferent to the risk of executing innocent people and have a range of standard responses to due process concerns (which are sometimes seen as “technicalities”), most of which are characterized by a refusal to engage with the facts. When I confronted them with cases in which death row inmates have been retried and acquitted, officials explained that a “not guilty” verdict does not mean the defendant was actually innocent and that most defendants “played the system” and probably were guilty. But the truth is that Alabama’s capital system is simply not designed to uncover cases of innocence, however compelling they might be. Alabama may already have executed innocent people, but its officials would rather deny than confront criminal justice system flaws…

The claim that the US upholds the rule of law is laughable when this is how the system works, when racial disparities are such that a man cannot get a proper review of his case.

Barring any last-minute developments, it is clear that the US will be making international new headlines tomorrow for an execution that may be better described as a state-sanctioned murder given the amount of doubt in the case. It is appalling given how much notoriety this case has that Georgia is actually going to go through this.

In closing, this is how Attorney General Sam Olens’ justifies the unconscionable act that is about to occur tomorrow:

Ultimately, while Mr. Davis’s new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors. The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value. After careful consideration, the Court finds that Mr. Davis has failed to make a showing of actual innocence that would entitle him to habeas relief in federal court.

Olens will bring great shame to the United States tomorrow if the execution does in fact take place.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."