GWEN IFILL: Uproar over the case of a Georgia man convicted of murder two decades ago has revived questions about how the death penalty is applied there and across the nation.
Human rights groups lined the streets of Atlanta today to protest tomorrow's scheduled execution of convicted murderer Troy Davis.
LAURA MOYE, Amnesty International USA: This is a case that has fallen apart. Without the benefit of physical evidence, it relies on witness testimony that has come completely unraveled.
GWEN IFILL: Davis was sentenced to death in 1991 for killing an off-duty police officer. Seven of the nine witnesses who testified against him have since recanted or contradicted their testimony.
That has brought Davis the support of prominent political figures ranging from former president Jimmy Carter to Ronald Reagan's appointed FBI director, William Sessions, to the European Union's top diplomat.
Today's parole board decision to deny his request for clemency was Davis' likely last chance. The lengthy legal battle has included two stays of execution and an intervention from the U.S. Supreme Court in 2008. The five-person state panel defended its decision, saying board members -- quote -- "considered the totality of the information presented in this case and thoroughly deliberated on it."
The debate surrounding capital punishment resurfaced as a political issue earlier this month in a Republican presidential debate. Governor Rick Perry was asked about his record in Texas, where he has presided over the execution of 234 death row inmates. That's more than any other governor.
GOV. RICK PERRY (R-Texas), Presidential Candidate: In the state of Texas, if you come into our state and you kill one of our children, you kill a police officer, you're involved with another crime and you kill one of our citizens, you will face the ultimate justice in the state of Texas. And that is, you will be executed.
GWEN IFILL: The U.S. Supreme Court delayed an execution in Governor Perry's home state just last Friday, pending review of the defendant's appeal. Duane Buck is on death row for murdering two people in 1995. His guilt is not in doubt. At issue is whether the jury was unfairly influenced by a psychologist's testimony that African-Americans are more likely to commit violent acts.
A Gallup poll taken last October showed 58 percent of Americans believe the death penalty is applied fairly; 36 percent disagree. Georgia's governor has no power to grant stays of execution, and Davis is now scheduled to die by lethal injection Wednesday night.
And, late today, the high court delayed the execution of a second Texas inmate on death row, less than three hours before he was scheduled to die.
For more on this issue, we're joined by Charles Stimson, senior legal fellow at the Heritage Foundation and a former prosecutor, defense attorney and military judge, and Vincent Southerland, assistant counsel in the NAACP Legal Defense Fund's criminal justice practice and a former public defender.
Has the debate -- Vince Southerland, has the debate changed about the death penalty given these cases and given the political climate?
VINCENT SOUTHERLAND, NAACP Legal Defense and Educational Fund: I think the debate has changed about the death penalty, given these recent cases.
It's changed in terms of now we look at the death penalty as one of fundamental fairness, an issue that we all can agree, I think, is critical in the imposition of any punishment, particularly the ultimate punishment, the ultimate sanction of the death penalty.
And I think what Mr. Davis' case and Mr. Buck's case and countless other cases have demonstrated is that the death penalty is not applied, is not issued, is not rigorously looked at in a fair and even-handed way. And the barriers to that fairness, prosecutorial misconduct, police misconduct, abuse of discretion by prosecutors and judges, and racial discrimination, as well as discrimination in terms of poverty and resources have really undermined the fundamental fairness that I think we can all demand from our criminal justice system.
GWEN IFILL: Charles Stimson, he mentioned fairness. Has that changed the nature of this debate, or is this a debate we have been having for a while?
CHARLES STIMSON, Senior Legal Fellow, Heritage Foundation: We have been having this debate, Gwen, and polling this issue since 1936. And support for the death penalty has been universally high.
Recently, 64 percent of Americans in the latest Gallup poll support the use of the death penalty. I agree with my friend Vince in the sense that when a state -- and 34 states have the death penalty -- decides to offer the ultimate penalty for the ultimate crime that it should be applied fairly.
But, you know, 76 percent of the victims of these crimes have been white, and 56 percent of those executed were white. And so I understand the racial bias angle. And I think that's probably one of the reasons the Texas case, the Buck case, has been put on hold because of what this defense expert said.
But Americans take this issue seriously, although I don't think it's bubbled to the surface, at least in terms of the 2012 race, yet.
GWEN IFILL: Well, let me ask you about this, because I wonder whether this -- we're having this debate at all because there are people who believe that it should never be applied. Or is this because of how it's applied?
CHARLES STIMSON: Well, I think, as I stated, the polls are very clear. Americans support the death penalty in appropriate cases -- 70 percent of the states offer the death penalty for capital crimes or other heinous crimes.
You know, a case like the case out of Georgia, Mr. Davis' case, there's a lot of protest today, et cetera, about Mr. Davis' case. But a federal judge after his case has gone up to the state Supreme Court several times, the Supreme Court -- the U.S. Supreme Court several times, said that his new evidence -- quote -- "is largely smoke and mirrors."
And that judge, in a detailed ruling, eviscerated this recantation evidence and found it not to be credible. And so we have a very robust system in the various states. They're not perfect. And people understand that. But we have a system that works. And we need to support or amend it when it doesn't work.
GWEN IFILL: Mr. Southerland, do we have a system that works? And in the case of -- what is it about the Troy Davis' case which raises questions for the people who do not believe it works?
VINCENT SOUTHERLAND: Our system actually doesn't work in the overwhelming number of cases. There have been about 138 exonerations of individuals on death row since 1973.
And in those cases, exonerations range because of racial bias of the jurors, of the prosecutors involved in the case, of police misconduct, of corruption in the criminal justice system generally. And I think Mr. Davis' case is emblematic of many of those problems, as are many of the cases in the system today.
As reports for Mr. Davis' case have shown, seven of the nine witnesses who testified at trial, said Mr. Davis was guilty of this offense, have recanted and changed their stories. Questions like that really raise serious questions and doubts in people's minds about the fundamental fairness in the process that people are going through.
GWEN IFILL: In a broader sense...
VINCENT SOUTHERLAND: You want to have a system that...
GWEN IFILL: Well, I just -- pardon me.
In a broader sense, are we talking about race when we have these questions, or are we talking in general that -- about the overall application of the death penalty?
VINCENT SOUTHERLAND: Race is certainly part and parcel of the conversation when we're talking about these cases, because the death penalty, the criminal justice system and race are inextricably bound in American history.
If you look back, there was a clear link between lynchings and things of that nature and the death penalty today as a means of suppression, as a means of social control. Race in particular, in a case in 1987, McCleskey vs. Kemp, a University of Iowa professor, David Baldus, found that you're 11 times more likely to receive the death penalty in Georgia if you have a white victim.
That type of racial disparity, that type of racial impact is something that clearly shows that racism has tainted our criminal justice system, more generally, and the death penalty/capital punishment system in particular.
GWEN IFILL: What do you say to that?
GWEN IFILL: What do you say to that, Mr. Stimson? And how does that square with the public opinion you were talking about?
CHARLES STIMSON: Well, I think, to the extent I agree with Vince, it's in this narrow point. And that is, any improper use of race, either in jury selection or in the ultimate punishment, is wrong.
And our criminal justice system, especially our appellate courts, look very carefully at that, not only at the state court level, but at the federal court level. And that's when I say when the system works, that's what I'm talking about. There are these checks along the way.
And I think what the American people aren't willing to tolerate is unlimited appeals. And the federal courts have been now limited by the Congress. And the state courts are limited by state legislatures on these unlimited appeals after appeal after appeal.
And with Mr. Davis' case, the only thing extraordinary about his case is that he's the poster child for the anti-death penalty crowd. Mr. Davis' case, when you read Judge Moore's opinion, Judge Moore says that the -- four of the six recantations are -- quote -- "either not credible or not true recantations."
And then the judge pointed out that there were -- that Mr. Davis himself wouldn't even allow those witnesses who recanted to be cross-examined in the hearing, the post-trial hearing. And so I don't think Mr. Davis' case is necessarily the best poster child for those who understandably...
GWEN IFILL: What about these other cases the Supreme Court has intervened in?
CHARLES STIMSON: Well, let's talk about the Buck case. And I think that's an excellent example from Texas.
The Supreme Court stayed that case. A defense expert testifying at the penalty phase of the trial, on cross-examination, said the fact that he was an African-American made it more likely that he would re-offend. And I think that that kind of testimony not only bothered Senator Cornyn at the time, who was the attorney general in Texas, but me and others. And no doubt that's played a part in the stay by the Supreme Court. And I suspect that the case will be reversed and sent back for resentencing.
GWEN IFILL: Mr. Southerland, what do you think about the idea that the Troy Davis case in particular is a bad example of something and just an example -- just an excuse for the anti-death penalty crowd to rally around this issue?
VINCENT SOUTHERLAND: Mr. Davis' case presents many of the problems that we see with the criminal justice system in general and the death penalty in particular, the witness recantations, the fact that the police coerced individuals to change their testimony, prosecutorial misconduct.
All these things were -- are factors in many death penalty cases across the country and happen in criminal courts every day. I see it in my experience as a public defender, where individuals are going through the system, being shoved through a system basically, without proper representation, without proper resources, and with many forces of the state being brought to bear against them in a position where they're the most vulnerable individuals in society.
I think Mr. Davis' case is more than an excuse. It's something that many courts and the Supreme Court should ultimately take a look at. If you're going to take a person's life with that type of certainty of punishment to end their life altogether, processes and procedures have to go -- you have to go beyond processes and procedures to actually look at the substance of what is happening in a particular case and understand whether or not a person deserves the particular punishment.
My sense is that the criminal justice system is a flawed system because it's built by human beings, who are naturally flawed, and therefore the death penalty system in much the same vein is going to also be flawed and have mistakes. And we should demand perfection if we're going to be taking lives from people.
GWEN IFILL: Is this something, briefly, that you think that the administration should be weighing in on?
VINCENT SOUTHERLAND: I would be -- I hope the administration would weigh in on -- weigh in on something like this, at the very least demand the best possible justice system in the world.
GWEN IFILL: And...
VINCENT SOUTHERLAND: There is an absolute necessity for that type of review and that type of scrutiny when you're going to be talking about people's lives.
GWEN IFILL: Mr. Stimson, what do you...
CHARLES STIMSON: I would think this is not the kind of case the administration would weigh in on, especially given...
GWEN IFILL: In general...
CHARLES STIMSON: In general.
GWEN IFILL: ... case.
CHARLES STIMSON: Oh, in general, I think Attorney General Holder has talked about the need for bettering the criminal justice system. And I think that's a very common and normal thing for an attorney general to say. And that's a good goal.
GWEN IFILL: Charles Stimson from the Heritage Foundation, Vincent Southerland from the NAACP Legal Defense Fund, thank you both very much.
CHARLES STIMSON: Thank you.
VINCENT SOUTHERLAND: Thank you.