YOU ARE HERE: LAT HomeCollections


For Some, the Evidence Doesn't Matter

November 10, 2002|Samuel R. Gross | Samuel R. Gross is a professor of law at the University of Michigan.

Ten years ago, Roger Keith Coleman was executed in Virginia for rape and murder, proclaiming his innocence to the end. He is one of several prisoners who have been put to death in the U.S. in recent years despite serious, unresolved doubts about their guilt.

In Coleman's case, however, we could know for sure, if the state would permit it. Semen recovered from the victim is sitting in a laboratory freezer. If that sample were analyzed using new DNA identification tests that have become available in the last few years, we would find out beyond doubt whether Coleman was guilty or innocent.

Instead -- hard as it is to believe -- the biological evidence may soon be destroyed by the state, without DNA testing.

On Nov. 1, the Virginia Supreme Court affirmed a lower court ruling that denied a request by several major newspapers to have that test conducted. In the court's view, what the newspapers want is not access to the evidence -- which is guaranteed by the 1st Amendment -- but "the ability to cause the biological material to be retested and generate a new scientific report, thereby altering, manipulating, and/or destroying existing evidence in order to create new evidence."

Judging from previous cases, this decision means that the murderer's semen -- whoever he is -- rather than being retested, altered and manipulated, may now be burned.

The logic of the Virginia Supreme Court's opinion, however, is less troubling than the reaction of the Virginia attorney general's office, which opposed DNA testing: "The bottom line," a spokesman said, "is that in 1981, Roger Keith Coleman raped and murdered Wanda McCoy. He was tried, convicted, sentenced and punished. And today the Virginia Supreme Court has spoken."

If prosecutors are sure of Coleman's guilt, why not take this opportunity to prove it?

The issue has come up in Virginia before, and the outcome was the same.

After Joseph O'Dell was executed in Virginia in 1997, the Catholic Diocese of Richmond, Va., asked for permission to test DNA samples that could determine his innocence or guilt.

The state's objection in O'Dell's case was more to the point than in Coleman's: If the test went badly for the state, prosecutors argued, "it would be shouted from the rooftops that the Commonwealth of Virginia executed an innocent man." The courts ordered the evidence destroyed.

In recent years, dozens of death row inmates have been exonerated -- by DNA evidence and otherwise -- and released. Some came within hours of execution; most were cleared by sheer chance.

This shocking state of affairs has led to moratoriums on executions in Illinois and Maryland. It has been noted with concern by a majority on the Supreme Court, including Justice Sandra Day O'Connor, who said last year, "If statistics are any indication, the system may well be allowing some innocent defendants to be executed."

In Congress, a majority of the House of Representatives and 31 senators co-sponsored a bill, the proposed Innocence Protection Act, that addresses the problem by setting minimum standards for capital defense lawyers and guaranteeing access to DNA testing.

In New York, in a decision now under appeal, a federal district judge held the federal death penalty unconstitutional, saying it is "fully foreseeable that in enforcing the death penalty a meaningful number of innocent people will be executed who otherwise would eventually be able to prove their innocence."

In Virginia, the death penalty is enforced with regularity: 86 executions since 1977, second only to Texas. How many innocent people have been killed in the process? If the commonwealth has its way, we'll never know.

Last year, Virginia adopted a law to forestall future investigations by authorizing the destruction of DNA samples immediately after an execution.

No one can deny that many innocent people have been sentenced to death; scores have been exonerated and released. Nonetheless, prosecutors argue that, somehow, all these errors are caught in time and no innocent prisoners are actually put to death. "Where" they say, "is the incontrovertible proof?"

Well, in Coleman's case, at the state's insistence, that proof may be about to go up in smoke.

Ultimately, this fight is about fear of knowledge. It is notoriously hard to investigate the guilt of a prisoner once he has been executed, and Virginia's position in this case illustrates one of the main reasons: State officials resist every step of the way.

The Virginia attorney general may truly be confident of Coleman's guilt. He may be right -- there is substantial evidence that Coleman was guilty. Yet a victory by the newspapers in this case might have set a precedent permitting newspapers, historians and other investigators to reexamine evidence after other executions. With such examination, over time, we might learn how many innocent defendants are put to death. And that, apparently, is unacceptable to the Commonwealth of Virginia.

Los Angeles Times Articles