Time - Man of the Year/Time_Man_of_the_Year_Compact_Publishing_3YX-Disc-1_Compact_Publishing_1993.iso/moy/051892/05189932.000

Text File | 1992-09-10 | 21KB | 406 lines

                                                                                COVER STORIES, Page 40

CAPITAL PUNISHMENT

Must This Man Die?


Roger Keith Coleman says he didn't kill anybody, but the courts
are tired of listening. That could be a tragic mistake.

By JILL SMOLOWE -- Reported by Julie Johnson/Grundy


    "Our procedure has been always haunted by the ghost of
the innocent man convicted. It is an unreal dream."

    -- Judge Learned Hand, 1923


    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, 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. Her cable-knit
sweater was hiked up around her neck and her indigo underpants
shoved down around her left foot.

    The brutality of the murder so stunned the people of
Grundy (pop. 1,300) that from that time on, townspeople began
to lock their doors at night. No one expected to sleep very well
until the murderer was found.

    They didn't have to wait long. Grundy police did not
initially find any evidence of forced entry into the McCoy
house, so they assumed Wanda must have opened the door to her
killer. Brad said his shy, reclusive wife, who had been jittery
since receiving a series of obscene phone calls the year before,
would have opened the door to only three men in town. Police
questioned all three and quickly decided on their man: Roger
Keith Coleman, then 22, a coal miner married to Wanda's younger
sister. 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 that 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.

    In the decade since then, Coleman has steadfastly
maintained his innocence. He has also nearly exhausted his
avenues of appeal. Barring a last-minute federal court
intervention or a grant of clemency by Virginia Governor Douglas
Wilder, Coleman, now 33, will be executed on May 20 by a
high-voltage wave of electricity that will wipe out his nervous
system, followed by a low-voltage shock designed to finish the
job. It is a prospect that Coleman says leaves him "anxious, of
course."

    His current pro bono attorneys at the high-priced,
high-powered Washington firm of Arnold & Porter have waged a
canny campaign to draw media attention to Coleman's case. Their
efforts, launched in 1984 and now spearheaded by a 28-year-old
associate named Kathleen Behan, were given a boost when
independent investigator Jim McCloskey turned his attention to
Coleman in 1988. McCloskey is renowned for tracking down lost
or overlooked evidence that has often led to the freeing of
convicted murderers.

    If, in essence, Coleman's supporters have sought to stage
a new trial through the press, the tactic is understandable:
the courts have so far failed Coleman miserably. It is quite
possible he will die, the victim of a justice system so bent on
streamlining procedures and clearing dockets that the question
of whether or not he actually murdered Wanda McCoy has become
a subsidiary consideration.

    It was never supposed to work this way. Back in 1976 when
the Supreme Court reinstated the death penalty, it signaled in
a series of decisions that utmost vigilance must be applied in
capital cases. The court warned that death is the "most
irrevocable of sanctions," and spoke of the "need for
reliability in the determination that death is the appropriate
punishment." But under Chief Justice William Rehnquist's
leadership, the Supreme Court seems more concerned with finality
than fairness. Frustrated by the mounds of habeas corpus
petitions that clog federal dockets -- Coleman's current
petition, which includes the Commonwealth of Virginia's
rebuttal, is more than 4 1/2 in. thick -- the court has sharply
curtailed the ability of state prisoners, including capital
felons, to approach federal courts with challenges to their
convictions or sentences. "It is not clear to me what, if
anything, will allow you to have a hearing in federal court as
a matter of right," says Bryan Stevenson, director of Alabama's
Capital Representation Resource Center.

    The fact that federal judges have found constitutional
errors in about 40% of the death penalty cases they have
reviewed since 1976 does not seem to faze the Supreme Court.
Instead the court's insistent message is that defendants are
represented adequately in the state courts, so federal appeals
are unnecessarily redundant. In last week's habeas corpus
decision, for instance, Justice Byron White wrote, "It is hardly
a good use of scarce judicial resources to duplicate fact
finding in federal court merely because a petitioner has
negligently failed to take advantage of opportunities in
state-court proceedings."

    Lawyers who know their way around death row argue that
such an opinion could only have been written by someone
seriously out of touch with the way justice is served up at the
state level. Often those most in need of help -- the poorest and
the 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; either way, these
attorneys rarely have experience with the intricacies of habeas
law -- perhaps the most complex part of criminal procedure.
Where once the Supreme Court protected defendants from dumb or
lazy lawyers, now defendants pay the price for their 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."

    Roger Keith Coleman's case is filled with the kinds of
errors that make federal review so vital. There is an allegation
that Coleman's trial may have been tainted by a biased juror;
that his lawyers made some major blunders; that another man may
have committed the crime. But tidy procedural obstacles have
blocked Coleman's attempts to obtain a federal evidentiary
hearing. With the clock ticking toward his execution, it is
reasonable to ask: Just what does it take to get a
reconsideration of a conviction that brings a sentence of death?

    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.

    Coleman sympathizers find this evidence pretty thin;
detractors think it is solid. "I'm not only convinced beyond a
reasonable doubt," says Tom Scott, a Grundy attorney who acted
as a special prosecutor during Coleman's trial. "I'm convinced
beyond every imaginable and conceivable doubt of Coleman's
guilt, based on that evidence alone."

    It was not as though he had no alibi at all. At the trial,
six witnesses vouched for Coleman's movements the night of the
murder. He went to a grocery to buy some antacid pills; he
reported for work at a coal mine, only to learn that the night
shift had been laid off; he picked up his work clothes at the
mine, then stopped to chat with a friend; he visited another
friend in a trailer park; he went home to his wife. Important
testimony came from Philip Vandyke, a friend of Coleman's, who
could point to the precise time of their conversation because
at its conclusion he punched a time clock. Although Vandyke had
no apparent motive to lie on Coleman's behalf and risk being
charged with perjury, the prosecution apparently persuaded the
jury to disregard his testimony.

    In so doing, it opened up a 30-minute gap in Coleman's
account. During that time, prosecutors argued, Coleman parked
his truck, waded across a creek, climbed a hill the length of
three football fields, raped Wanda twice, slit her throat, then
escaped unseen. The prosecutors offered no eyewitnesses and
little proof to support this scenario. In a sense, the most
important clues in this case may be the ones that were missing.
Given the haste with which Coleman would have had to act, he
might have been expected to leave telling signs behind. A
fingerprint. A footprint. At the very least, there should have
been traces of the mud and water that would have clung to his
pants after fording waters 10-in. deep. No such evidence was
offered.

    Absent a motive, murder weapon or witness, the
prosecution's case rested on three pieces of evidence. A
forensic test demonstrated that one of two types of sperm found
on the victim -- the other sperm, the prosecution argued, was
that of her husband -- belonged to someone who was a blood type
B secretor, meaning that the blood type can be determined by
samples of any bodily fluid. Coleman matched the description --
but since roughly 10% of Grundy's population has type B blood,
it is likely that others in the town fit the bill. The
prosecution also produced brown hairs the same color as
Coleman's, lifted from Wanda's red pubic hair. But other hairs
picked up when police vacuumed the McCoy's home the night of the
murder did not match Coleman's.

    A jailhouse snitch named Roger Matney testified that while
sharing a cell with Coleman before the trial, Coleman stated
that he and another man raped Wanda, then the other man killed
her. After offering up this story a year later at Coleman's
trial, Matney was released from serving the remainder of four
concurrent four-year prison sentences. Later Matney's
mother-in-law claimed that he had admitted to making it all up,
which he in turn denied.

    An experienced defense team might have poked holes through
the prosecution's case. But Coleman was a poor coal miner, with
no spare cash to hire an attorney. His court-appointed lawyer,
Terry Jordan, was just two years out of law school and had
tried only one murder case. In Bartleby fashion, Jordan told the
judge at the outset that he would "prefer not to" handle the
case. It is interesting to note that according to Matney's
arrest records, a Terry Jordan represented Matney in an assault
and battery hearing scheduled for May 29, 1981; that is the
same day that Matney gave his statement about Coleman's alleged
jailhouse "confession" to the police.

    Coleman asserts in his pending appeal that his initial
legal representation was woefully inadequate. His court papers
contend that the ensuing investigation of the facts was so bare
bones that neither Jordan nor his other assigned attorney, Steve
Arey, ever retraced Coleman's steps the night of the murder to
clock his movements or search for witnesses. They never went
inside the McCoy or Coleman houses. They never measured the
creek to see if the water marks on Coleman's pants matched the
water level of the creek.

    Much of the evidence that might have vindicated Coleman
has still never been heard in court. Because rumors about the
murder were plentiful and pretty much everyone knew about
Coleman's prior conviction, his lawyers petitioned for a change
of venue. But Arey did not show up for the motion, leaving the
argument to Jordan, whom Coleman charges with inadequate
preparation. The case remained in Grundy, the seat of Buchanan
County. After the trial, one of Coleman's appeals would be based
on a report that a juror had allegedly announced that he hoped
to be seated on the jury so he could "burn the s.o.b." The juror
has denied making the statement.

    Most shocking is the evidence the defense never presented.
A few days after the murder, Keester Shortridge, who lived near
the McCoys, found in the back of his truck a plastic bag
stuffed with blood-soaked lilac sheets, two Van Heusen cowboy
shirts and a pair of scissors. Instead of calling the police,
Shortridge buried the bag in a landfill. A few weeks ago, Jordan
signed an affidavit stating that he too knew about Shortridge's
discovery of the sheets prior to the trial. "I considered the
information useless," he stated. Under the Supreme Court's
current interpretation of habeas corpus law, that admission
ensures that any higher court will find the information useless
as well. But it might have been useful to Roger Coleman.

    Then there is the matter of Coleman's clothes. Prosecutors
have never doubted that the bag of clothing Coleman surrendered
to the police the day after the murder contained the same items
he wore the night Wanda was slain. Indeed, during the trial the
prosecutors made much of three droplets of blood that matched
Wanda's type O blood on the left leg of the blue jeans.

    The defense team could have made more of those same
clothes, but didn't. Given the gory nature of the killing,
Coleman's clothes should have been splattered with blood. They
weren't. Given his need to get out of the McCoy house -- by the
prosecution's own scenario, Coleman showered later, not at the
McCoy's -- there should have been traces of semen in his
underwear and on his wash cloth. There weren't. The prosecution
claimed that Coleman waded through a 10-in.-deep creek, a charge
it supported by pointing out that the legs of his jeans were
wet. But, observes Coleman's uncle, disabled coal miner Roger
Lee Coleman, "his long underwear wasn't wet; his socks wasn't
wet; the inside of his boots wasn't wet either."

    The lawyers also never raised the issue of the
blackish-red soil found on Wanda's hands and extending up the
sleeves of her sweater, or of her broken fingernails, which were
caked with soil. Such details suggest a struggle that might have
taken place outdoors. Coleman had no scratches on him; neither
did any of the other people questioned immediately after the
murder.

    These are the sorts of considerations that Coleman might
have raised on appeal. But during his first habeas appeal, a
pair of pro bono lawyers from Arnold & Porter argued primarily
that there was insufficient proof of his guilt. Since then,
court after court has rejected Coleman's arguments, maintaining
that such details should have been presented in the first
appeal. A year ago, the U.S. Supreme Court ruled against his
petition for an evidentiary hearing because the Washington
lawyers filed papers a day too late. "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," says Democratic
Representative Don Edwards, chairman of the House judiciary
subcommittee on civil and constitutional rights. "That is really
shocking."

    All Coleman has left to argue is his "actual innocence."
It is the one legal path -- albeit a narrow one -- that might
enable him to circumvent the habeas corpus guidelines that now
essentially restrict capital felons to a single federal appeal.
Kathleen Behan, his new attorney, has been relentless in
developing the innocence argument. She has made more than a
dozen trips to Grundy to uncover new evidence and enlist further
support. A few months ago, she rented a backhoe to dig up the
landfill where Keester Shortridge said he dumped the bloody
sheets. For her effort, she was rewarded with a 1-ft. by 2-ft.
swatch of the sheet. She has not only lobbied the press for
coverage, but has waged a letter-writing campaign to Virginia
lawyers, entreating them to write to Governor Wilder and ask for
clemency on Coleman's behalf.

    This final habeas corpus appeal offers seven reasons why
Coleman should be granted an evidentiary hearing that will
enable him to prove his innocence. Behan believes that she has
"overwhelming" evidence someone else killed Wanda and that if
a hearing is granted, her evidence of Coleman's innocence will
prevail. Her fear is that she will never be able to make the
case. "I think we're going to run out of time," she says, "and
that's what's so frustrating." As of late last week, a federal
district judge had not yet ruled on Coleman's petition. If
Coleman loses his appeal, he can take it to the U.S. Court of
Appeals for the Fourth Circuit, then to the Supreme Court. These
days that final trip hardly seems worth the effort.

    There is one other remote possibility. At present, claims
of innocence based on new evidence that raise no constitutional
violation are not reviewable in habeas corpus proceedings. A
Texas case pending before the Supreme Court, Herrera v.
Collins, seeks to establish a constitutional connection: that
carrying out executions in the face of unexamined new evidence
is cruel and unusual punishment, in violation of the Eighth
Amendment. It is a longshot gamble that the decision will go in
Herrera's favor; it is an even longer shot that the decision
will come down in time for Coleman to use that argument.

    Given the hostility of the federal courts to multiple
petitions, Coleman's lawyers might do better to train their
sights on the clemency hearing. Governor Wilder, a former
defense attorney, may be willing to listen where the courts are
not. Beyond the discarded sheets and the condition of Coleman's
clothing, there are other points that raise a reasonable doubt:

    -- In late 1991 Grundy resident Teresa Horn signed an
affidavit swearing that another man in the county had confessed
to Wanda's murder. Last March, Horn voiced her charges in an
interview on a Roanoke TV station; the next day she was found
dead. The circumstances have yet to be explained convincingly.
Over the past three weeks, four more witnesses came forward, all
with stories pointing to the same man. He denies the
allegations.

    -- Coleman was arrested on the police theory that Wanda
opened the door to the intruder. Police subsequently discovered
a pry mark on the door molding, just 3 in. up from the floor,
and a fingerprint. Plainly, if tests had identified the
fingerprint as belonging to Coleman, the jury would have heard.

    -- The jailhouse snitch's version of Coleman's
"confession" put another man on the murder scene. Other evidence
-- including inconclusive traces of sodomy -- supports the
possibility that two men were involved. Under Virginia's
"triggerman" statute, a defendant can be executed only if he is
the one who actually killed the victim. Even if Coleman was one
of the two culprits, there is a question whether he was the
murderer.

    -- Frank Hinkle, the police deputy who had been assigned
to trail Coleman right after the murder, swore two months ago
in an affidavit, "I believe that the principal reason for Mr.
Coleman's arrest and trial was to reassure the community that
a perpetrator had been found." Hinkle was never summoned as a
defense witness.

    Coleman may yet be spared. After all, he has McCloskey,
one of the nation's most prominent investigators, in his
corner. He has a determined, active team of lawyers who have the
experience and funds to pursue every possible lead. His clemency
petition will be heard by a Governor who is not up for
re-election and can therefore be guided by moral considerations
without having to worry about political consequences.

    As the clock ticks, the biggest consideration may be this:
With so many questions still outstanding, what's the big rush
to end Coleman's life? Yes, 10 years is a long time for a
prisoner to sit on death row. But additional time is not too
much to ask if there is a reasonable doubt that he is guilty.
Coleman's uncle says, "I'm for capital punishment, but I believe
you ought to have the right person involved." It seems a
reasonable standard.