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:
WOLF BLITZER: Really an amazing story coming up. More than a decade after the execution, the state of Virginia will soon learn whether it put an innocent man to death. DNA tests are pending that could clear Roger Coleman's name once and for all. CNN's Randi Kaye is joining us from the capitol in Richmond, she has more. Randi, tell our viewers what's going on.
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?"
Here is a story as twisted as the thin bands of highway that corduroy the mountainous tip of southwestern Virginia, a remote pocket of mining country where the river runs black with coal dust in the spring. This much can be stated with certainty: on the night of March 10, 1981, in the town of Grundy [pop. 1300], a young woman named Wanda Fay McCoy was raped, stabbed twice in the chest and slashed across the neck with such force that the gash, 4 in. wide and 2 in. deep, cut almost to her spinal cord. When her husband Brad returned home, he discovered Wanda lying on the floor in a warm pool of blood.
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:
Coleman had the misfortune of having a record and lacking a convincing alibi. He had served time from 1977 to 1979 for attempted rape, which helped persuade police they had found Wanda's killer. A month later, they arrested him. A year later, there was a four-day trial. The evidence -- or lack of it -- raised doubts about his guilt. But after three hours of jury deliberation, Coleman was found guilty of rape and murder, and sentenced to death.
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:
Often those most in need of help -- the poorest and least educated -- get the shoddiest representation. They may be defended by court-appointed lawyers who are either young and inexperienced or old and broken down....Where once the Supreme Court protected defendants from dumb or lazy lawyers, now defendants pay the price for attorneys' mistakes. "It means," says Esther Lardent, director of the American Bar Association's Post-Conviction Death Penalty Representation Project, "the worse someone's trial lawyer is, the less likely they are to get review."
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:
Coleman is not on death row because some witness claimed to see him murder Wanda McCoy. Or because someone saw him enter her house. Or because his fingerprints were found in the house, on her body or on a murder weapon. He is not even in trouble because someone offered a plausible motive for Coleman's wanting his sister-in-law dead. The case against Coleman is built solely on circumstantial evidence: bits of hair, blood, semen that may be his, but then again may not.
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.
What is most staggering is Smolowe's assertion that there was no motive for the slaying. More than half the murders in this country are committed during the course of a rape or robbery. The motive for these "felony murders" is always the same -- to prevent the witness from identifying the criminal. If Coleman had raped his wife's sister, would he have any reason for wanting to keep her from testifying? Would he have had any reason for not wanting her to identify him? The disingenuousness of liberal reporters is sometimes beyond belief.
AS COLEMAN'S 1992 EXECUTION DATE drew near, DNA technology was improving rapidly. Behan arranged for further testing on the sperm sample -- with disastrous results. Coleman's DNA matched the sperm sample to a probability of 98 percent. Combined with the match of blood types -- an entirely separate criterion -- this made the match one in 1,200. In the entire small mining town, there was probably only one person with the murderer's genetic profile -- Coleman.
No matter, Behan had another approach -- "somebody else did it." At this point, Behan had been joined by Jim McCloskey, described by Time as an "independent investigator...renowned for tracking down lost or overlooked evidence that has often led to the freeing of convicted murderers." Actually, McCloskey is a former Wall Street executive who took a theology degree at Princeton in 1983 and then founded Centurion Ministries, "a non-profit organization whose singular mission is to liberate from prison and vindicate individuals who are completely innocent of crimes for which they have been convicted and imprisoned." (It has found 14 such cases since 1983.)
A few days after the murder, a neighbor of the McCoys had found a plastic bag stuffed with blood-soaked sheets, two cowboy shirts, and a pair of scissors. Stupidly, he threw the bag into the garbage rather than turning it over to the police. Convinced the evidence would exonerate Coleman, Behan and McCloskey hired a backhoe to excavate the entire town dump. They did find a small section of the sheet but it was unusable as evidence. Undaunted, Behan began publicly accusing another Grundy man of the murder, based on hearsay reports of "confessions" that everybody involved denied.
Despite these fumbling efforts, Behan still had the best weapon of all -- access to the media. Arnold & Porter began a national campaign that eventually made Coleman what National Review called the "poster boy of the anti-death penalty crusade." Coleman was reasonably good looking and had become well spoken in his ten years in prison. With his framed glasses and gentle manner, he looked and sounded like your average yuppie. He also intelligently framed his appeal as an anti-death penalty crusade, representing himself as a symbol of all those on death row.
The national media couldn't get enough of it. A remote appearance on Phil Donahue brought an avalanche of publicity. Virginia Governor Douglas Wilder was buried in appeals to grant clemency. Coleman was soon on Nightline and the Time cover story ran the week before his scheduled execution. The morning of the date, Behan and McCloskey arranged a publicly broadcast lie-detector test. Coleman failed. Even then, the execution was delayed another 15 minutes by a last-minute appeal to the Supreme Court. When Coleman was finally sat in the electric chair on the evening of May 20, 1992, 14 satellite trucks stood outside the Greensville Correction Center broadcasting to the world. "An innocent man is going to be murdered tonight," were his last words. "When my innocence is proven, I hope Americans will realize the injustice of the death penalty as all other civilized countries have."
It didn't end there. In 1997, John C. Tucker, a former criminal defense attorney, published May God Have Mercy, the usual in-depth exoneration. The Baltimore Sun called it "a gripping book [that] demonstrates all that is wrong with capital punishment" and the American Lawyer said it was "the most compelling description yet written of how a man -- who was probably innocent -- can be executed in America today." In 2002, on the 10th anniversary of the execution, the Arts and Entertainment Network ran "American Justice: An Execution in Doubt," yet another rehash of the case.
The sperm evidence and samples of Coleman's DNA remained preserved at Forensic Science Associates, a California crime lab, and with improving DNA techniques, Centurion Ministries began campaigning for a yet another test. When the Virginia courts rejected the petition the Richmond Times-Dispatch, Washington Post, and Boston Globe all joined the suit. Finally, on January 5, Governor Warner issued a special order to reopen the case. Warner may have only been clearing his desk before leaving office, but in terms of the Alito hearings, the results could not have been more perfectly timed.
Had the test exonerated Coleman -- which many people obviously believed would happen -- anti-death penalty advocates would have been marching outside the Senate. As it was, they barely blinked. "There are many more like the Coleman case," said Barry Scheck, co-founder of the New York-based Innocence Project, with apparent unintended irony. "DNA has shown, whether it's the death penalty or not, there are flaws with eyewitness testimony, false confessions and crime labs. We know many more people have been wrongfully convicted than anyone thought." William F. Schulz, executive director of Amnesty International, announced, "Despite the outcome of these tests, the antiquated practice of state-sanctioned executions should be abolished based on its appalling record of human error."
NO ONE WANTS TO SEE an innocent man executed and such retesting should obviously be performed wherever possible. But it's amazing how the press consistently refuses to print the other side of the story.
Since states resumed executing people in 1990, the murder rate in this country has dropped precipitously, from 9.8 per 100,000 to 5.6 per 100,000, back to the levels of 1965, when executions were discontinued. The drop has been concentrated precisely in those states that are actually performing executions. In the eleven states with no death penalty, murder rates have hardly changed at all. (Those states, mostly in New England and the Upper Midwest, all had lower rates of homicide to begin with.) In the handful of states that have death penalties but have not executed anyone, the rates about halfway in between. Unfortunately, as executions have again stalled in the last four years, the decline in the murder rate has ended.
The type of murder that has fallen is precisely the type that Coleman committed -- murder in the course of another crime. The logic is simple. If you are raping or robbing someone -- particularly someone who knows you by sight -- you have a very strong incentive to kill him or her in order to eliminate the witness. You are already facing a jail sentence. If the punishment for murder is only more time in jail, there is not much disincentive against homicide -- particularly when weighed against the possibility that you might get away with it altogether. But if the punishment for murder is qualitatively different -- the death penalty -- then you have reason to inhibit your impulse to kill the victim. That is how the death penalty prevents murders.
Liberals can never get this through their heads. They live in a fantasy world where there are no bad people and murders are only a mistake, an accident, or someone else's fault. With Roger Keith Coleman, we never even got around to the "root causes" of the crime -- he was a poor coal miner, America is an unjust society that condemns miners into low-paid, unsafe working conditions, etc. It's the same with terrorism. There are no bad people in the world, only misunderstood Third World victims of globalization. Inevitably, it is not crime or terrorism but our response to it -- eavesdropping, the invasion of Iraq, the death penalty -- that comes under attack.
The Roger Keith Coleman appeal did not upset Judge Alito's confirmation. With the ascension of this fair-minded jurist, the chances that liberal hysteria can run amuck in the justice system are ever so slightly diminished.