Supporters take part in a vigil for death row inmate Troy Davis outside the Georgia Board of Pardons and Paroles in Atlanta September 19, 2011.
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But it wasn't just Davis that was on trial. In many ways, it was the death penalty itself.
"This is a very important test," Innocence Project co-founder Barry Scheck told me before the ruling came out. "It's a very important case for death penalty proponents, because they support Pardons and Paroles boards as a means of ensuring the fairness of the process."
As a defense lawyer, Scheck is, of course, a professional opponent of the death penalty. But he is right that those of us who are more ambivalent about the death penalty want better safeguards. And ambivalence is a majority opinion, it turns out: Gallup polling in 2009 found that 62% of Americans still see the death penalty as a "morally acceptable" punishment, but 59% believed that an innocent person had been executed sometime in the previous five years.
The board in Georgia did not need to find Davis innocent to stop his execution. In fact, the fervent claims by his supporters that he is certainly innocent also ring untrue since, well, nobody seems to know what happened in that parking lot on August 19, 1989. It just needed to recognize enough doubt to say that this case, watched and worried over around the world (the Pope, the European Union, Desmond Tutu and 663,000 signatories of pro-clemency petition all called for clemency) shouldn't be a symbol of the death penalty in the U.S. That the board did not see that doubt may well have something to do with the impassioned advocacy of McPhail's family, whose grief and determination that Davis should be executed for the crime have always been a highlight of the prosecution's case.
The board's failure mirrors others I've seen, particularly in Texas. The Cameron Todd Willingham case, in which discredited arson science sent a man to his death, featured a feckless board that received new scientific information but appeared to simply ignore it, as David Grann reported in the New Yorker . Perry later reshuffled the Texas Forensic Science Commission in a successful bid, the commission's former head says, to kill a follow-up investigation into the Willingham case. In a 2004 case, the Texas Board of Pardons and Paroles ruled in favor of clemency for Kelsey Patterson, a delusional killer who believed that the military had implanted devices in his head, but Perry ignored the recommendation and Patterson was executed as scheduled. Georgia is one of the few states where the governor cannot overrule the board's decision on death penalty cases, which is a mixed blessing — it can insulate the process from politics, but also handcuffs politicians who might act as an alternative safety valve.
Last year, in the case of Claude Jones, the world got a sense of how the Texas Board of Pardons and Paroles failed spectacularly. As I wrote in TIME, Jones was executed after then-governor George W. Bush had promised to stay any execution if there was new DNA testing that could be done. In Jones' case there was. The only physical evidence was a single strand of hair that was linked to Jones using an outdated microscope comparison technique. By the time the board heard his final appeal, a new and incontrovertible DNA test was available. But the board, the safety valve, malfunctioned. It chose to ignore defense requests for the new testing and didn't mention it in their report denying clemency. Bush approved the execution without even knowing that there was a new DNA test available. It wasn't until last fall, ten years after Jones' death, that the DNA test was finally performed. The result: the hair didn't match Jones. A man had been sent to his death based in large part on false forensic evidence.
That's what makes today's ruling on Davis so troubling: in death penalty cases, if the board of last appeal doesn't do its job, then justice delayed is truly justice denied.