MICHEL MARTIN, host: I'm Michel Martin, and this is TELL ME MORE from NPR News.
In a moment, the U.S. military's 17-year-old ban on gays and lesbians serving openly in the military has now been lifted. We'll talk about this with a decorated officer whose military career was marked by "don't ask, don't tell." We'll get his thoughts about this change in a few minutes.
But we start with another hot-button issue, the death penalty. Georgia death row inmate, Troy Davis, is set to be executed tomorrow in connection with the 1989 shooting death of off-duty police officer, Mark MacPhail, as Officer MacPhail tried to help a homeless man who had been attacked.
Davis has been scheduled to be executed four times previously. But he's been spared in large part due to the efforts of a broad coalition of religious leaders and legal professionals, both liberals and conservatives, who point to the fact that several witnesses whose testimony helped convict Davis have changed their stories. And there's a lack of physical evidence linking Davis to the crime.
One of those who have been arguing for clemency for Davis is Bob Barr. He's a former Republican congressman from Georgia. He's a member of the Death Penalty Committee of the Constitution Project. We caught up with Mr. Barr yesterday and he told us that while he supports the use of the death penalty in most cases...
BOB BARR: I don't think that any reasonable person could look at the evidence in this case and come away with any conclusion other than this case is one in which there is substantial doubt about the guilt of the accused and, therefore, the death penalty should not be imposed in this particular case.
MARTIN: But this morning, the five-member Georgia Board of Pardons and Paroles, which has the power to change a death sentence, rejected Davis' request for clemency.
We wanted to talk more about this, so we've called upon Kurt Schmoke. He is dean of the Howard University School of Law. He's also a former member of the Death Penalty Committee of The Constitution Project. He's also the former mayor of Baltimore, which he also served as state's attorney, which is to say the top prosecutor for the city.
Dean Schmoke, thank you so much for joining us once again.
KURT SCHMOKE: Hello, Michel.
MARTIN: Why do you think that this case has attracted so much attention?
SCHMOKE: Well, you know, there's a real split in the country about capital punishment. And I think that even people who are proponents of capital punishment want to make certain that those who are put to death really are guilty, that there's not just the question of reasonable doubt, but that there's no doubt with respect to capital punishment.
And in this case, you do have a situation of witnesses who were very young at the time that they gave statements now recanting in their adulthood, say, for one particular witness. But with that kind of uncertainty, I'm sure it leaves people very wary about moving ahead with putting this man to death when the board could give him life without parole, which means, you know, he still would not be on the streets. He still would be away from society. But that would give an opportunity to investigate further to make certain that there was, you know, no mistake made here.
MARTIN: This case went all the way to the U.S. Supreme Court, but their decision in this case was unusual. Was it not? I mean, they offered him the opportunity - can you just tell us what they did? They offered him the...
SCHMOKE: Well, yes. The bottom line is that they did look...
MARTIN: ...opportunity to examine testimony, but not a new trial.
SCHMOKE: Yeah. They didn't look into the fact. They didn't ask or didn't order a retrial or a new trial in the case. They did send it back for consideration by this Georgia State Board of Pardons and Paroles.
And Georgia is one of the few states in which the elected governor doesn't have the right to grant the clemency. It's all delegated to this five-member board. So, the courts have sent the matter back to this board. The board apparently had something in the nature of a hearing. They even invited witnesses to come in and testify. They also invited the family of both Mr. Davis and the victim to come in.
And, you know, they made a decision. Now, it wasn't a public hearing, so we don't know what evidence was presented. Those of us on the outside just know that witnesses have changed their story and that usually is enough to slow a process down and to give, really, second thoughts. But in this case, it didn't happen.
MARTIN: I was going to ask you about that, though. I was going to ask what standard - do we know what standard this board was using to make this determination? I do think it's worth mentioning that they received more than 600,000 petitions asking for clemency for Mr. Davis and there were many high profile petitioners, including, we mentioned Bob Barr, the former congressman from Georgia. He's also a former U.S. attorney there. Former President Jimmy Carter, former FBI Director William Sessions were among those seeking clemency. So what standard - do we know what standard is used in a case like this?
SCHMOKE: Well, they don't have to use the same standards the courts use. That is in terms of, you know, the types of evidence. They're an administrative body and they have wide discretion on what they can hear, what they can consider. I do think it's important, although a lot of people don't want to talk about it. But, you know, race becomes a factor in death penalty cases around the country. That is in terms of implementation.
But here, you have a situation, a five-member board in which two of the members are African-American. In fact, the chairman of the board is an African-American former military officer. They did not announce today what the vote was, you know, whether it was a unanimous vote or whatever. But it is interesting, and I think one factor to consider that the Board of Pardons and Paroles is composed of two white males, two black males and a white female. They considered all this evidence and decided to still move ahead.
So I don't know whether you can say in this particular instance that race was a, you know, dominant factor. We're seeing some lingering, you know, remnants from old, you know, discrimination factors coming out of the South.
MARTIN: I was going to ask you about another case where the Supreme Court last week took the rare step of involving itself. It halted the execution of Duane Buck, a black man convicted of a double murder in Texas some 16 years ago. The high court agreed to review his lawyer's claims that race definitely played a role there because a witness testified that he had a propensity to commit violence, again, because of his race.
MARTIN: So I was going to ask you, though, in the minute that we have left, a minute and a half we have left. You know, many people have no contact with the criminal justice system. And so, I would ask you to explain why you feel this matters.
SCHMOKE: Well, race does have a - when studying death penalty cases around the country, it shows that the race not only of the perpetrator, but the victim, matters. There are some states in which they made a clear demonstration that a person of a racial minority group, if they killed a white person, were more likely to get the death penalty than if they killed another person of a racial minority.
So, there have been real problems with the implementation of the death penalty. And I think that's one of the things that troubles people, that it depends not only which state an incident occurs, but even which county sometimes within a state because prosecutors have such wide discretion about when they can seek the death penalty and when they couldn't. But race, unfortunately, remains a factor in death penalty litigation. And that is particularly troublesome for many.
MARTIN: Kurt Schmoke is the dean of the Howard University School of Law. He's also a former member of the Death Penalty Committee of The Constitution Project and the former mayor and a former state's attorney in Baltimore. Dean Schmoke, thank you so much for speaking with us.
SCHMOKE: Thank you. Transcript provided by NPR, Copyright NPR.