The American Spectator

Something happened in the middle of Samuel Alito’s triumphant hearings in the Senate last week that shouldn’t be allowed to slip by.

On Thursday, just as the hearings were winding up, results came back from a Toronto laboratory that DNA testing had affirmed once again that Roger Keith Coleman, executed in 1992 by Virginia for the rape and murder of his sister-in-law, was indeed guilty of the crime.

Two weeks before, Virginia’s outgoing Democratic Governor Mark Warner — who appears to have Presidential ambitions — consented in one of his last acts in office to test once again the sperm sample found within 19-year-old Wanda McCoy’s body. The liberal press was beside itself with anticipation, certain the results would blow up in the middle of the confirmation hearings. On Wednesday, CNN carried the following breathless report:

RANDI KAYE, CNN CORRESPONDENT: Wolf, this is a very important test. If it goes Roger Coleman’s way, if the DNA does not match, this would be the first time that a man who has been executed is exonerated.

As late as Thursday morning, Senator Patrick Leahy was throwing the case in Judge Alito’s face, telling him, “We’re finding in Virginia now and other cases it appears that there’s a possibility a number of innocent people were executed.”

Then the results came back — astonishing, perhaps, only to those TV reporters who, in their usual “in-depth analysis,” had no idea what they were talking about. The Coleman case is in fact one of the most bizarre episodes in the history of American journalism, escaping notice probably only because it is indistinguishable from so many other cases. It’s a perfect example of how the wandering moralists of the media overrun established institutions with their crusading myopia and staggering naivete.

HERE, FOR EXAMPLE, IS THE WAY Time magazine reporter Jill Smolowe explained the Coleman case on May 18, 1992, when Time ran a cover story on Coleman the week before his execution under the headline, “Must This Man Die?”

Because there was no sign of forced entry, police had quickly theorized that McCoy knew her attacker. Her husband said she had kept the door locked since receiving a series of obscene phone calls the previous year. She would only open the door for three people in town. One of them was Coleman, who was married to Wanda’s younger sister. As Time told it:

A simple explanation, right? Bunch of hillbillies, small-town prejudices, inept cops thinking they got the right man just because he was an obvious candidate. Scopes trial, lynchings — all that stuff. What do you expect from small-town America?

Now enter the heroine of our story, 28-year-old Kathleen “Kitty” Behan, an associate at the high-powered Washington law firm of Arnold & Porter, who took over Coleman’s appeals on a pro bono basis. Behan, dazzled by the chance of impressing her colleagues and carving out a movie-star role for herself, became obsessed with the case. She missed an appeals deadline by one day, which didn’t say much for her legal talents but — paradoxically — became a fire alarm in the press. A man was going to die because his lawyers missed a filing by one day! “Coleman might very well be innocent, yet the Supreme Court has used this arbitrary rule that he can’t take advantage of habeas corpus just because it wasn’t technically filed correctly,” Congressman Don Edwards, then the Democratic chairman of the House Judiciary Committee, told Time. “That is really shocking.”

Never fear. The habeas corpus petition only covered “Constitutional rights,” which in contemporary legal terms means the endless stream of technicalities that can be raised to challenge a conviction — the warrant was written on the wrong form, a word was misspelled, the defense lawyer was wearing a tie that offended the jury, he was seen drinking in a bar late one night and was therefore incompetent. Here, let Time tell it:

Actually, the worse someone’s trial lawyer, the better your chances of appeal, since “incompetent representation” is always the first issue raised by the hundreds of “death penalty projects” and law school clinics that are litigating every scheduled execution in the country. But let’s move on.

Absent the technicalities route, Arnold & Porter was forced to appeal “actual innocence” (imagine that!), arguing that Coleman didn’t commit the crime. That was no problem. As Time reported:

As with so many liberal screeds, it is difficult here to know where to begin. In the first place, thank god Coleman was not convicted by “witnesses” who claimed to see him entering McCoy’s isolated home in the early darkness when the murder took place. (Coleman had reported for work but was told his shift was cancelled and had some free time.) As police, lawyers, and judges are well aware, eyewitness testimony is the least reliable form of evidence. Unfortunately it is also the most convincing to juries. In the instances where an innocent person has been wrongly convicted of a crime — and there are definitely such cases — it is almost always because some sincere or fired-up witness has come before the jury swearing he or she saw the defendant at the crime scene.

What Time’s Smolowe calls “circumstantial” evidence was actually physical evidence — the very best kind. (Circumstantial evidence would be if Coleman were unable to account for the time in which the crime took place — which in fact he could not.) DNA technology had not been developed at the time, but contemporary testing of the “hair, blood and semen” all pointed at Coleman. Two pubic hairs found on the victim’s body matched Coleman’s in every significant respect. Blood found on a pair of jeans Coleman had worn was type O, matching McCoy’s blood. In addition, the person who left his sperm was a “Type B secretor,” meaning his blood leaks into bodily fluids. That matched with only 6 percent of the population.