Washington
The mining town of Grundy, tucked in the highlands of southwest Virginia, has the hardscrabble look of Appalachian coal country.
There’s no airport, and it’s a long drive up into the hills, through woods and mountain pastures, before, above an unruly creek, loom the stone turrets of the Buchanan County courthouse.
I made the trip in the spring of 2000, to try to persuade a Grundy judge to allow DNA testing of a dead man’s sperm.
Even as he sat in Virginia’s electric chair, before they strapped the death mask to his face, Roger Coleman had insisted that he did not rape and murder Wanda McCoy. It was a celebrated case, and my newspaper hoped to test the miner’s claim of innocence.
I used my best patter on the judge that day, but couldn’t close the sale. He asked the Virginia attorney general’s office for its opinion, and the state’s law enforcement community formed ranks in opposition.
Every few weeks that summer, there was news of another innocent man being freed from death row or a long prison term because of new DNA evidence. No way did Virginia authorities want to test the suggestion that they may have put an innocent man to death.
So we went to court – fought it all the way to the Virginia Supreme Court – and lost. It took six years before a gutsy governor, Mark Warner, accepted a challenge posed by Jim McCloskey, an advocate for innocent convicts, to test the evidence. It showed Coleman was guilty.
I tell this story because Supreme Court Justice Antonin Scalia cited Coleman’s case last week when skewering the notion that an unacceptable number of innocent people get convicted and jailed – and, yes, may even have been put to death – in the United States.
Coleman was “the poster-child” for death penalty foes, Scalia gloated, in a concurring opinion in Kansas vs. Marsh, a capital punishment case. “But earlier this year a DNA test … proved that Coleman was guilty.”
“With regard to the punishment of death in the current American system, that possibility (of fatal error) has been reduced to an insignificant minimum,” the justice said.
In some respects, Scalia is correct: the number of genuinely innocent men and women convicted for capital crimes or other serious offenses is tiny.
To track down Coleman and a few other executed men whose case files contained viable DNA, I reviewed every one of the hundreds of executions that took place in the United States from 1977 through 2000.
Take my word for it: almost every one of these convicts was a guilty, soulless creep like Coleman. Most confessed to their crime before dying.
But that is not all one learns when studying capital punishment. Our justice system is seriously flawed. Is the risk of killing an innocent person, as Scalia says in his phillipic, “an insignificant minimum?” No way.
Study the files, and you will find hair-raising tales of sloppy and dishonest evidence technicians, myopic eyewitnesses, incompetent public defenders, deceitful prosecutors, bad cops, callous judges and lying, self-serving jailhouse snitches.
“The period starting in 1989 has seen repeated exonerations of convicts under death sentences, in numbers never imaginable before the development of DNA tests,” wrote Justice David Souter, in dissent in the Kansas case.
Sure, Coleman was a poster-child. With books to sell and donors to woo, some in the abolitionist movement tried to stop McCloskey from seeking testing. They wanted a symbol, not the truth. One of the movement’s top forensic experts pressed me to drop my efforts because, he said, the odds were 500-to-1 that Coleman was guilty.
The results, when they ultimately came, were indeed a setback for death penalty foes. Scalia wasn’t the only one to trumpet the proof of Coleman’s guilt, and the priestly McCloskey has been a target of undeserved scorn.
“Those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to,” Scalia crowed.
The justice should know better. He is no dummy, and must recognize that in most capital cases – drive-by shootings, gunfights over drugs, robberies that go wrong and the like – there is no DNA evidence to prove innocence, before or after an execution.
Without such rock-hard proof, the system can succumb to its defects. After a series of embarrassments compelled the governor of Illinois to declare a moratorium on capital punishment in 2000, a state task force concluded that 13 exonerated prisoners had made it as far as death row though there was “relatively little solid evidence connecting” them to their alleged crimes.
Illinois executed 12 defendants in that same period of time. The state “had thus wrongly convicted and condemned even more capital defendants than it had executed,” Souter noted.
Then there is the story of Frank Lee Smith.
There was no physical evidence tying Smith to the crime, and the prosecution’s key witness recanted her testimony, but he spent 14 years and died on Florida’s death row for the rape and murder of an 8-year-old girl.
The state didn’t kill Smith. He suffered an agonizing prison death from cancer before the executioner could pull the switch. Ten months later, posthumous DNA testing – opposed by Florida officials – proved Smith was innocent.
There was nothing to be done. As Souter notes, “false verdicts defy correction after the fatal moment.”
Scalia is a law and order judge. He has concluded that cases like Smith’s represent an “insignificant minimum” of risk. But he may want to consider the risk to the rest of us.
For as Frank Lee Smith wasted away on death row, the real murderer – a serial killer – was roaming free, raping and killing other young women and children.
John Aloysius Farrell’s column appears each Sunday in Perspective. Read and comment on his columns at The Denver Post’s Washington Web log (denverpost bloghouse.com/washington).
