Compassion, Certainly, but Justice, Too

The first time, Troy Davis came within 24 hours of death. The second time, he came within two.

Last year, it was a Georgia clemency board that stepped in to block his execution. Last month, it was the Supreme Court. Davis, the 39-year-old convicted killer of Mark MacPhail, a Savannah, Ga., police officer, was granted a stay to allow the court to consider whether to hear his appeal for a new trial. A decision is expected on Monday.

When news of Davis' latest reprieve broke, MacPhail's family reacted as you would expect. His mother, Anneliese, 74, told the Associated Press, ''I'm furious, disgusted and disappointed. I want this over with. This has been hanging over us for 19 years.'' She said she'd like to punch Davis in the face. She said she is angry at his entire family. She said her son will not have justice until Davis dies.

Your instinct, faced with such a rawness of agony, is to defer. To have a loved one ripped away as MacPhail's family did -- he was shot three times in 1989 while trying to break up a parking lot altercation -- is to enter into a confederation of suffering any one of us could join in the time it takes to thrust a knife or pull a trigger. Grief of such magnitude confers moral authority that trumps other considerations, and your heart, if you have one, will require you to yield to it as surely as subcompacts do to 18-wheelers.

This is human, this is compassionate. And it is also a mistake, at least where capital punishment is concerned.

For what it's worth, the case against Davis is not exactly airtight. No murder weapon, DNA or other forensic evidence implicated him. Rather, he was convicted solely on the testimony of nine witnesses, seven of whom have since recanted. Two of them say police bullied and intimidated them into fingering Davis. Of the two witnesses who are sticking to their stories, one is a man named Sylvester Coles, nicknamed Redd. Some of the other witnesses now say he's the one who shot MacPhail.

This all means nothing to the MacPhail family and that's understandable. But the question here is: Should it mean something to us?

I submit that it must.

Last year, Brandon Garrett, a professor of law at the University of Virginia, studied 200 cases in which people were freed from prison after DNA evidence proved them innocent. He found that erroneous eyewitness identifications were the leading cause of wrongful convictions, occurring in 79 percent of the cases he studied. And in one out of every four, those IDs were the only direct evidence against the accused.

Not that you need a study to prove the unreliability of eyewitnesses. Just try to remember and describe the woman who cut you off in traffic this morning or the UPS guy who made a delivery to your home. Now imagine doing it with someone dead and your blood pounding and police demanding answers.

Yet on this flimsy basis we make decisions about someone's life or death?

That's ridiculous and obscene.

And it is evidence of moral cowardice that we countenance the ridiculous and the obscene so complacently and complaisantly, never daring to look too closely at what is happening here because if we look we might accidentally see, and then, by God, we might be compelled to act, to admit that capital punishment is incompatible with justice and to gather the courage to say to families like the MacPhails, Look, we feel your grief and our hearts break for you, but what you're demanding we do is wrong, if for no other reason than that we, being human, just may, conceivably, make mistakes.

Yes, we owe the MacPhail family our compassion and understanding. But you know what?

We owe Troy Davis' family something, too.