Roger Coleman, her brother-in-law, had access to the house and immediately became a suspect. Coleman had a prior conviction for Attempted Rape. Coleman, who worked in a mine, had reported to work that night but had left when his shift was dismissed.

The victim had broken fingernails, cuts on the hands, and a dark, dusty substance on her body. The autopsy report recorded wounds to her chest and throat with a knife. Initial and subsequent DNA testing connected Coleman to the crime scene.

DNA Tests Confirm Guilt of Executed Man

By Maria Glod and Michael D. Shear - Washington Post

Friday, January 13, 2006

Modern DNA tests have confirmed the guilt of a Virginia man who had proclaimed he was innocent of murder and rape even as he was strapped into the electric chair and executed more than a decade ago, the governor announced yesterday. The results stunned and disappointed those who have fought a 25-year crusade to prove that Roger K. Coleman was innocent. They also dashed hopes among death penalty foes that the case would catalyze opposition to capital punishment across the country.

Virginia Gov. Mark R. Warner (D) yesterday said genetic analysis conducted in recent weeks proves that Coleman, who was executed in 1992 for the slaying of his 19-year-old sister-in-law, was a rapist and killer. The tests show there is a one in 19 million chance that semen found on the victim's body belonged to someone else. "We have sought the truth using DNA technology not available at the time the commonwealth carried out the ultimate criminal sanction," Warner said in a statement. "The confirmation that Roger Coleman's DNA was present reaffirms the verdict and the sanction."

Coleman's case had become a focal point in the debate over capital punishment, with opponents insisting that DNA tests would prove that an innocent man was put to death and proponents saying that justice was served. Coleman had maintained his innocence in a series of television and newspaper interviews that generated attention around the world, and his backers tried for years to get the courts or politicians to order the tests. Warner, in his last weeks in office, agreed to allow the analysis and became the nation's first governor to allow post-execution testing.

Legal scholars said the test results denied death penalty opponents a long-sought opportunity to put a human face on one of their most compelling arguments: that the U.S. justice system makes mistakes that result in the executions of innocent men. "The opportunity to bring new people into the abolitionist movement has been lost," said Phyllis Goldfarb, a professor at Boston College's law school.

But Goldfarb said that though the exoneration of an executed inmate could have profoundly eroded support for the death penalty, confirmation of Coleman's guilt won't change many opinions. "Supporters of the death penalty will be confirmed in their skepticism of claims of innocence," she said. "Opponents still have reason to oppose. The risk of executing innocents still exists."

Coleman, a coal miner from the small Appalachian town of Grundy, Va., was convicted and sentenced to death in the 1981 rape and stabbing of Wanda McCoy. Coleman's assertions of innocence and questions over the strength of the evidence prompted Centurion Ministries, a New Jersey charity that investigates wrongful convictions, to investigate the case. Media organizations, including The Washington Post, joined Centurion in an unsuccessful court fight to have the DNA tests conducted years ago.

Yesterday, James C. McCloskey, Centurion's executive director, said he felt betrayed by the man whose last words included the statement, "An innocent man is going to be murdered tonight." "How can somebody, with such equanimity, such dignity, such quiet confidence, make those his final words even though he is guilty?" McCloskey said. "Had the evidence shown him to be innocent . . . that would have had a tremendous effect on the anti-death-penalty movement in terms of perhaps encouraging moratoriums and even abolition," McCloskey said. "Those are not the set of facts we have in this instance. That will not happen, at least as the result of this case."

But he and his attorney, who battled without pay for six years to have Coleman's DNA tested, insisted that Coleman's case will serve as a model to encourage other politicians and prosecutors to allow testing of DNA before and after someone is convicted. "The results in this case don't end the debate over the death penalty," said Paul Enzinna, a lawyer with the Washington firm of Baker, Botts.

Tom Scott, a criminal defense lawyer from Grundy who helped prosecute Coleman, said he remained convinced all along that the right man was tried, convicted and executed. "I never had any doubt about his guilt, never," Scott said. "All the evidence always pointed to Coleman."

During Coleman's trial, authorities said evidence included hair on McCoy's body that was similar to Coleman's and the account of a jailhouse informant. Coleman also had been convicted of attempted rape a few years earlier. Coleman said he had an alibi and would not have had time to commit the killing. Defense attorneys also gathered affidavits from people who said another man admitted to killing McCoy.

The testing in Coleman's case marks only the second time nationwide that DNA tests have been performed after an execution. In 2000, tests ordered by a Georgia judge in the case of Ellis W. Felker, who was executed in 1996, were inconclusive. Genetic tests exonerated Florida inmate Frank L. Smith in 2000, several months after he died of natural causes while awaiting execution.

After the results of the testing in Coleman's case were made public, the death penalty debate continued. "Today's finding is a further demonstration that Virginians' trust in our criminal justice system is well founded," said Robert F. McDonnell (R), who will become Virginia's attorney general tomorrow. "Today is further proof that this is exactly the manner in which the death penalty has been, and will continue to be, employed in the commonwealth."

Joshua K. Marquis, vice president of the National District Attorneys Association and an Oregon prosecutor, was more vehement. "This is not at all unexpected and puts to a lie the myth that wrongful convictions are epidemic," he said. "Coleman was not just a rapist and a murderer but a liar as well."

DNA Tests Confirm Man Executed in 1992 for Rape, Murder in Virginia Was Guilty

By Kristen Gelineau - ABC News Legal Center

RICHMOND, Va. Jan 12, 2006 (AP)— New DNA tests confirmed the guilt of a man who went to his death in Virginia's electric chair in 1992 proclaiming his innocence, the governor said Thursday. The case had been closely watched by both sides in the death penalty debate because no executed convict in the United States has ever been exonerated by scientific testing. The tests, announced by the governor earlier this month, prove Roger Keith Coleman was guilty of the 1981 rape and murder of his sister-in-law, Gov. Mark R. Warner said.

Coleman was convicted and sentenced to death in 1982 for the murder of 19-year-old Wanda McCoy, his wife's sister, who was found raped, stabbed and nearly beheaded in her home in the coal mining town of Grundy.

The report from the Centre of Forensic Sciences in Toronto concluded there was almost no conceivable doubt that Coleman was the source of the sperm found in the victim. "The probability that a randomly selected individual unrelated to Roger Coleman would coincidentally share the observed DNA profile is estimated to be 1 in 19 million," the report said.

Coleman's case drew international attention as the well-spoken inmate pleaded his case on talk shows and in magazines and newspapers. Time magazine featured the coal miner on its cover. Pope John Paul II tried to block the execution. Then-Gov. L. Douglas Wilder's office was flooded with thousands of calls and letters of protest from around the world.

Coleman's attorneys argued that he did not have time to commit the crime, that tests showed semen from two men was found inside McCoy and that another man bragged about murdering her. "An innocent man is going to be murdered tonight," the 33-year-old said moments before he was electrocuted on May 20, 1992. "When my innocence is proven, I hope America will realize the injustice of the death penalty as all other civilized countries have."

A former prosecutor in the case said the results, while not surprising, were a relief. "Quite frankly, I feel like the weight of the world has been lifted off of my shoulders," Grundy attorney Tom Scott said. "You can imagine, had it turned out differently, (the other prosecutor) and I certainly would have been scapegoats."

Prosecutors said a mountain of other evidence pointed to Coleman as the killer: There was no sign of forced entry at McCoy's house, leading investigators to believe she knew her attacker; Coleman was previously convicted of the attempted rape of a teacher and was charged with exposing himself to a librarian two months before the murder; a pubic hair found on McCoy's body was consistent with Coleman's hair; and the original DNA tests placed him within a fraction of the population who could have left semen at the scene.

Four newspapers and Centurion Ministries, a New Jersey organization that investigated Coleman's case and became convinced of his innocence, sought a court order to have the evidence retested. The Virginia Supreme Court declined to order the testing in 2002, so Centurion Ministries asked Warner to intervene.

James McCloskey, executive director of Centurion Ministries, had been fighting to prove Coleman's innocence since 1988. The two shared Coleman's final meal together cold slices of pizza just a few hours before Coleman was executed. I now know that I was wrong. Indeed, this is a bitter pill to swallow," McCloskey said, describing Thursday's findings as "a kick in the stomach" and adding that he felt betrayed by Coleman.

Death penalty proponents welcomed the results. "Stop the presses it turns out that rapists and killers are also liars," Michael Paranzino, president of a group called Throw Away the Key, said in a statement.

Death penalty opponents praised Warner's decision to order the testing but warned that Coleman's case does not mean the death penalty is infallible. "Obviously, one case does not in any way reflect on the correctness of the other 1,000 executions we've had in the last 30 years," said Peter Neufeld, co-founder of the Innocence Project. "Other governors should take their lead from Governor Warner and do post-execution testing in their cases, because … there's no reason not to it's all about getting to the truth."

Name/DOC #: Roger Keith Coleman
Address: Grew up in Grundy, Buchanan County, VA; resided there at time of crime.
Executed at Virginia's Greensville Penitentiary.
Date of Birth: November 1, 1958
Race: White
Date of Crime: March 10, 1981
Age Time of Crime: 22
Date Sentenced: April 23, 1982
Victims: Wanda Fay McCoy
Race of Victims: White
Relationship to Defendant: Sister-in-law: Roger Coleman was married to victim's sister at time of crime.

Facts Alleged by State: Coleman was allegedly admitted to victim's home, where he allegedly attacked her, raped her, sodomized her, and cut her throat, thus causing her death.

County of Trial: Buchanan County, VA
Trial Judge: Buchanan County circuit judge Nicholas Persin
Trial Attorney: Terry Jordan and Steven Are
Prosecutors: Commonwealth's Attorney Michael G. "Mickey" McGlothlin, assisted by Tom Scott, private practitioner
Trial By: Jury
Convicted of: Rape and capital murder
Confession: No
Accomplice Testimony: No accomplice testimony; no accomplice found or named
Eyewitness Testimony: No witnesses

Forensic Testimony: Two hairs recovered from the victim's body were said to be "unlikely" to have come from anyone but Mr. Coleman: Semen samples recovered from the victim's body were of same blood type as Mr. Coleman. Blood on Mr. Coleman's pants was of same type as victim; Blood and semen samples were not subjected to all available tests; Subsequent DNA analysis of samples supported original matchups; dispute continues over further testing of remaining samples with newly improved DNA analysis, with state opposing further tests; Soil on Ms. McCoy's hands, sleeves, legs, was never compared to soil around house: Thus, chance was missed to challenge prosecution theory of attack inside house by person known to victim; Fingerprint on front door was apparently never analyzed; this may have meant losing a chance to identify intruder(s); Wounds in victim's chest were said to have been made by Coleman's pocketknife: Other experts challenge state's analysis of wounds as insufficient to establish link.

Jailhouse Snitch: Yes: Roger Matney, a convicted felon awaiting sentencing in Buchanan County Jail when Coleman was held there following his arrest, testified that Coleman had confessed to him. In Matney's account, Coleman reported visiting McCoy's house with another man, where the other man attacked her and both the other man and Coleman raped her. Matney's allegations that Coleman reported having sketched the murder scene, and that a weapon was discarded under a bridge, were apparently never followed up for verification.

Defendant Testimony: Coleman denied involvement in the crime and denied having "confessed" to Roger Matney. He recounted his whereabouts the night of the crime.

Principal Exculpatory Evidence: Well-supported alibis. Coleman had gone to work at the coal mine the evening of the crime, found that his entire shift had been laid off unexpectedly, and spoken with several acquaintances and co-workers before returning home. DNA testing shows involvement of two assailants, and other assailant never identified. Unexplained physical evidence does not fit into prosecution theory that Coleman was willingly admitted to house and attacked McCoy inside.

Statutory Aggravating Factor: Virginia death sentences require finding by jury that defendant's likely future commission of violent acts constitutes a threat to society, OR that murder in question was "outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or aggravated battery to the victim." Coleman's jury found both conditions to obtain death sentence(based on prior felony conviction and on circumstances of McCoy killing).

Mitigating Factors: Testimony on Coleman's recent religious conversion.

Mental Illness, retardation or neurological damage: No

Criminal History: Felony conviction for attempted rape in 1977. (State's case against Coleman in that case was based on victim's identification of Coleman's picture in high school yearbook. High school superintendent, who knew Coleman personally, reported having been talking with Coleman elsewhere at time of attack.)

Appellate History: Original habeas corpus petition in state court was ruled to have been filed one day late. Federal and state review of trial was therefore effectively denied, this denial being affirmed by U.S. Supreme Court. New information discovered by Coleman's lawyers and by independent investigators was not heard.

May God Have Mercy: A True Story Of Crime and Punishment

A book by John C. Tucker.

Delacorte Press - September 1998

CHAPTER ONE Buchanan County, Virginia - The town of Grundy doesn't fit the usual gracious public image of Virginia. Grundy is the county seat of Buchanan County, in the heart of Appalachia. It is farther south than most of Kentucky, and farther west than all but a sliver of West Virginia. It is so far west that the mixture of mud, water and coal dust that flows through town in the Levisa Fork River runs west to the Mississippi instead of east to the Atlantic Ocean.

It's nearly a seven-hour drive from Grundy to Virginia's capital in Richmond, but only thirteen miles to West Virginia—due east. You can't buy a drink of liquor in Grundy, so some of its less reputable citizens make the short trip to the Acapulco Club, just over the state line. Others drink the moonshine made in Buchanan County's mountain hollows. It's a toss-up whether you're more likely to go blind from drinking the moonshine or getting slashed by a broken beer bottle at the Acapulco.

If you head west from Grundy, it's sixteen miles to Pike County, Kentucky—site of the feud between the Hatfields and the McCoys, and some celebrated battles between revenuers and moonshiners. During Prohibition, the revenue men rarely ventured into Virginia—it was too dangerous, and besides, Virginia politicians didn't care any more for federal intervention in whiskey-making than they did forty years later when the issue was segregation. In 1935 Sherwood Anderson wrote about a moonshining case tried in federal court in Roanoke. The defendants included the sheriff of Franklin County and the county prosecutor, Carter Lee, Robert E.'sgrandnephew. From the evidence, Anderson wrote, it seemed as if Franklin County, Virginia, was "the wettest spot in the United States." Up the road in Buchanan County, some of the residents smiled.

Today, the only significant business in Buchanan County is mining coal. Unless you have a private airplane, you're most likely to approach Grundy by driving northwest on U.S. Route 460. Once you cross the height of land, the headwaters of Levisa Fork appear and the highway follows its valley. Soon road and river are joined by the tracks of the Norfolk & Western Railroad, built to carry the rich coal deposits of Buchanan County to market.

In 1931, shortly before the railroad announced a plan to extend its tracks in Buchanan County, a few prominent citizens began purchasing mineral rights from the families who had settled the area a century earlier. The Depression was on and life was even harder than usual for families trying to scratch a living from Buchanan's steep slopes and thin soil. For a man who owned a couple of hundred acres of mostly untillable mountainside, the dollar an acre he was offered for whatever was underneath was found money—money he was too poor to turn down even if he suspected that the buyer knew something he didn't.

Thus, in early 1931 thousands of acres of Buchanan County mineral rights changed hands for next to nothing. A few years later, while most of its citizens remained dirt poor, Buchanan County boasted some of the wealthiest families in Virginia—and still does. Among them today are the McGlothlins and the Streets, founders and owners of United Coal Company, one of the largest privately owned coal companies in America. Organized in 1970 by a group of local lawyers and businessmen who decided to invest in some then-depressed coal properties, United grew rapidly, just in time for the 1973 Arab oil boycott to multiply the price of coal and the value of United's holdings. Two decades later, Jim McGlothlin, United's CEO and largest shareholder, is one of the richest men in America.

Coal is mined three ways in Buchanan County—strip mining, drift mining and deep shaft mining. The strip mines use giant earth movers to chew off the tops of mountains and ridges. Drift mines tunnel straight into the side of a mountain, removing the narrow bands of coal that followed its contours when the mountain was raised up by the massive force of colliding tectonic plates. The deep shaft mines burrow straight down to where the largest seams of coal were formed, far beneath the surface.

As you approach Grundy, large industrial compounds appear along the roadside, each with its own rail spur and a windowless, square-sided tower sheathed in corrugated metal. These are the shaft mines where miners work far below the surface, raised and lowered in cages attached to a cable. The mine on your left in Vansant, just east of Grundy, is Consolidated Coal Company's Pocahontas Mine No. 3. Its shaft descends some fifteen hundred feet straight down to the Pocahontas seam, which runs beneath much of Buchanan County. Once the seam is reached, tunnels spread out in many directions, following the rich deposits of coal. Some tunnels run for miles, with a maze of side tunnels as well. The mountain whose insides are now being devoured by Pocahontas No. 3 is not even visible from the mine entrance in Vansant.

The shaft mines of Buchanan County are among the deepest and most dangerous coal mines in America. Because they release so much deadly and explosive methane gas, they require exceptionally strong air circulation, so that working in them is like working in a wind tunnel. In a place that is always damp and cold, a wind blowing at a steady twenty-five miles an hour may keep the mine from exploding, but after an eight-hour shift some miners think favorably of the fiery cremation chosen by Sam McGee in the Robert Service poem.

Even so, the miners who work the deep shafts have two advantages over those who work the drift mines that tunnel into the mountainsides of nearly every hollow in Buchanan County. One is that the deep shaft mines are unionized, while United Coal and most companies that own drift mines are not. The other is that a shaft miner can usually stand up while he works. The Pocahontas seam is nearly five feet thick, and the tunnels that work it are at least as high as the seam, but the drift-mine seams and the tunnels that follow them are typically thirty-six inches high or less. A drift miner works on his hands and knees. For a miner who avoids being crippled, burned or buried alive, the usual question is which will give out first—his lungs, his back or his knees.

As U.S. 460 enters Grundy from the east, it becomes the main street of the business district. Although Grundy's population is less than two thousand, it is the only incorporated town in Buchanan County and the main commercial center for the surrounding area. The left side of the road is lined with a variety of businesses. In the center of town, on the right, is the Buchanan County Courthouse, an ugly eighty-eight-year-old structure of gray stone. After World War II a new wing was added, with an entrance of concrete blocks molded to imitate the stone.

At the corner of the building, where a short side street runs off to the right, a striking bronze sculpture of a coal miner stands on a black marble base. He is dressed in work boots and coveralls, his pant legs taped over his boot tops to keep out the coal dust. His miner's helmet and headlamp are tilted back at a jaunty angle, revealing longish hair that is surely blond in real life. He stands erect, holding a miner's pick waist-high, and seems to gaze off to a distant horizon- a pose suggesting either that the sculptor had never been in a coal mine or that the mine owners who contributed to his commission were disinclined to show their workers crawling on hands and knees in a tunnel barely three feet high.

Beyond the courthouse, Slate Creek approaches the highway from the right, passes beneath it and empties into Levisa Fork, which there makes a sharp bend to the west, leaving the highway to fetch up against a sheer cliff of gray stone. On the face of the stone, members of the latest graduating class of Grundy Senior High School paint their class numerals and a pictorial tribute to the incongruous school mascot, a golden wave.

To avoid the cliff, Route 460 pauses at a stoplight and turns 90 degrees left to follow the river to Kentucky, while another road heads off to the right, following Slate Creek upstream to West Virginia. For many years, Tuffy's barbershop occupied the building on the corner where the highway turns. In the basement of the shop was a shower room where, for a small fee, coal miners coming from work could remove their work clothes and wash some of the black coal dust off their skin and out of their hair before returning home.

The barbershop and bathhouse are closed now, so unless he works at one of the big mines with its own shower room, a miner takes his coating of coal dust home. For the most part, Grundy's citizens are hard-working, God-fearing people. There are, however, some notable exceptions, and while the coal miner's statue next to the courthouse pays tribute to the economic heartbeat of Buchanan County, the courthouse itself plays a central role in one of the region's principal recreational activities—violence, especially murder, rape and wife beating, with an occasional dose of labor strife thrown in.

While Grundy can't boast a strike as bloody as the one that brought nearby Harlan, Kentucky, the nickname Bloody Harlan, a few years ago the most violent coal strike in decades was centered next door in Dickenson County. Before it was over hundreds of miners had been jailed, and a judge named McGlothlin had fined the United Mine Workers millions of dollars. In the next election, Buchanan County's incumbent state representative, also a McGlothlin, lost his seat to the president of the Mineworkers local. As for casual violence, Grundy's recent generation of young layabouts and drug dealers can hold their own in any league.

In February 1981, under the headline MURDER NO LONGER SAFE IN BUCHANAN, Grundy's newspaper, The Virginia Mountaineer, profiled a young lawyer who was the county's Commonwealth's Attorney, or prosecutor—Jim McGlothlin's younger brother Michael.

The article reported that since taking office a year earlier, Mickey McGlothlin had successfully prosecuted seven murder cases. It didn't mention that the seven murders reported in Buchanan County in 1980 gave the community a murder rate more than twice that of the state as a whole. A month after the article praising Mickey McGlothlin appeared in the Mountaineer, Grundy's young Commonwealth's Attorney had another murder to prosecute.

CHAPTER TWO Brad and Wanda - Wanda Fay Thompson was born on November 5, 1961, the second youngest of sixteen children—eight girls and eight boys. Wanda's father is a retired coal miner. The Thompsons raised their sixteen children in a frame house on Home Creek, a small tributary of Levisa Fork about twelve miles northwest of Grundy, a stone's throw from Kentucky.

The family has always been close. All the sons are in some kind of coal-mining job, and two of them, Pal and Danny Ray, have built their own houses on the hill just above the house where they were raised and their mother and father still live. Most of the other Thompson children live close by. All the girls are pretty, and Wanda Fay, with her strawberry-blond hair and ready smile, was no exception. Although she enjoyed the outdoor games her brothers and sisters played together whenever chores and good weather permitted, Wanda's favorite pastime was making clothes and crafts. In high school she was an average student, quiet and obedient. With strangers, she was almost painfully shy. No one can recall her ever doing anything mean or hurtful. Her sister Peggy says, "I guess you'd have to say she was just about perfect."

Brad McCoy is Max "Hezzie" McCoy's youngest son. Hezzie works for United Coal and drives a white stretch limousine that he rents out and chauffeurs himself for weddings and other occasions. He is a proud member of the McCoy clan. Brad is slight of build and as soft-spoken and gentle as his legendary forebears were crude and ill-tempered. Brad McCoy and Wanda Fay Thompson were high school sweethearts at Grundy Senior High School. Brad was a member of the class of 1978; Wanda was two years behind him. They met through Wanda's older sister Lydia, who worked with Brad at the Piggly Wiggly. Brad had a crush on Lydia, but she passed him off to her younger sister.

The pass was complete. In July, a few weeks after Brad graduated, Brad McCoy and Wanda Fay Thompson were married at the Grundy Baptist Church. Wanda's family attended a church on Home Creek, but Brad had become close to Rev. Jack Mutter, the minister at Grundy Baptist, whose son, a close friend of Brad's, had been killed in a car accident not long before. It was typical of Brad that he would think it might give Mutter some comfort to celebrate the wedding of his son's friend, and Wanda and her parents agreed to his suggestion that the ceremony be held at Grundy Baptist. Bill Pierce, a friend, stood up for Brad. Wanda was attended by her younger sister Patricia. Both sets of parents thought the marriage was a perfect match, and for as long as it lasted it seemed they were right. On June 16, three days after Brad graduated from high school, he went to work at United Coal. Perhaps because of his temperament and slight build, or perhaps because he seemed a little smarter than the average Grundy High School graduate, Brad was employed aboveground, as a parts clerk in one of the company repair shops.

If you turn left at the Grundy stoplight and follow Route 460 toward Kentucky, in about two miles you come to United Coal Shop No. 1, where Brad McCoy was assigned. If you turn right at the light and follow the road toward West Virginia, the narrow valley formed by Slate Creek widens a bit about three quarters of a mile east of town. There a bridge spans the creek and leads into a small subdivision called Longbottom. The first two rows back from the creek are well-kept brick and frame ranch homes whose middle-class owners are likely to be teachers, shop owners or coal company supervisors. Farther back a few older frame houses are more typical of the area's working-class population. In 1980, Hezzie and Betty McCoy lived in one of those houses, and after they were married, Brad and Wanda were able to rent another one, less than two blocks from Brad's mother and father.

"DNA and the Death Penalty," by Victor Peskin.

In 1992, the issue of post-execution DNA testing arose in the case of Roger Keith Coleman, who was executed on May 20. At his execution, Mr. Coleman stated, "An innocent man is going to be murdered tonight. When my innocence is proven, I hope Americans will realize the injustice of the death penalty as all other civilized countries have."

A year earlier, a less accurate form of DNA analysis placed him at the scene of the murder of Wanda McCoy. Based largely on this evidence, he was convicted and sentenced to death. Significant advances in DNA technology have since taken place.

Roger Keith Coleman was born on Nov. 1, 1958. When he was just 22 years old, he was arrested for the rape and murder of Wanda Fay McCoy. He lived in Grundy, Va. Grundy is a small mining town, and news of his arrest spread fast. The gas station next door to the court house erected an 8' x 4' lighted sign that read "It's time for a new hangin' tree in Grundy."

Despite the sign and the many people in town saying that they wanted to "get on the jury and help fry the son of a bitch", the Buchannon County Courthouse denied a change of venue for Roger and tried him there anyway. His lawyers did not use most of the evidence that they had that could have proven Roger's innocence and that fact that he did not have the time to commit the murder, because they either did not have the evidence that they were supposed to, or were too inexperienced to use what they had. One of his lawyers had never been involved in a murder trial before, and the other was just two years out of law school, and had never been involved in a trial that involved blood or hair analysis. Both were court appointed.

The expert witness for the state claimed that the two pubic hairs found on the victims body were "consistent with Coleman's "and that it was "unlikely" that they could have come from anyone else. (This same man would later testify the same exact thing in a different case, where after DNA analysis, the man was found innocent beyond a shadow of a doubt).

When asked to see the DNA results from the tests conducted in Coleman's case, trial lawyers were told that they had been placed in the McCoy murder file after Coleman's execution and sent to the state archives, but the file is now "missing". It has also been stated that another man in the small town, who allegedly raped, or attempted to rape several other women, has admitted to the murder. He was said to have told one of the women that if she did not cooperate he would "do [her] like he did the girl on Slate Creek". When asked by her if he was referring to Wanda McCoy, he just hung his head and said "yeah", when asked he was afraid that the police would get him, he said no, because the case was closed.

All of these things were ignored due to one of his attorneys making the trivial error in filing his appeal papers one day too late, and the outrageous 21-day rule, which restricted Virginia prisoners to finding all their evidence within 21 days of sentencing. Any evidence found after that three-week period will not be looked at by our courts.

Judge Denies DNA Retest in Coleman Case

Richmond Times-Dispatch

June 2, 2001

A Buchanan County circuit court judge has rejected requests by a New Jersey charity, the Richmond Times-Dispatch and several other newspapers to retest DNA evidence in the case of Roger Keith Coleman, executed in 1992 for a rape and capital murder in Grundy. "The court finds that to order re-testing of the Coleman DNA at this stage would have no bearing on the fairness of the death penalty as it is now administered or on the public confidence of the criminal justice system," wrote Judge Keary R. Williams in a 10-page ruling.

Coleman's execution drew international protests from capital punishment opponents who contend he was innocent of the rape and murder of Wanda McCoy. Many still contend he was innocent, though an earlier DNA test strongly suggested his guilt and he failed an eleventh-hour polygraph test. Williams said that "further testing would would provide no benefit in this case where the defendant was convicted, given the opportunity [to] prove his innocence following conviction in every manner possible at the time, pursued every post-trial remedy available to him, and most importantly, where the sentence was carried out nine years ago." He said the newspapers lacked the legal standing to make the request. In addition to The Times-Dispatch, The Boston Globe, The Washington Post and The Virginian-Pilot were seeking the test.

Problems with polygraphs

Roger Keith Coleman was arrested in Virginia for the 1982 rape and murder of Wanda Fay McCoy. Many people felt that he had an inadequate defense counsel and that there was convincing evidence that proved his innocence, which his court- appointed lawyers---both inexperienced---failed to introduce in court. The state's expert claimed that two pubic hairs on the body were consistent with Coleman's and it was unlikely that they had come from anyone else, although that same expert was mistaken in his hair analysis on a different murder case. There was also another man found guilty of rape in the same small town who allegedly had confessed to the murder while with one of his victims.

Coleman maintained his innocence and he asked for a polygraph test. He was granted it, albeit under questionable circumstances, and the state claimed that he failed it. On May 20, 1992, Coleman was executed.

Jim McCloskey, of Centurion Ministries in Princeton, New Jersey, was deeply involved in the Coleman case for over four years. His non-profit organization is devoted to getting justice for convicted prisoners who are innocent and he tried hard to get the evidence reconsidered. He reports the shocking fact that that Coleman's polygraph test was administered on the morning before he was scheduled to die. "When they offered that," he said, "we fully recognized how insane it was giving a man a polygraph on the morning of his execution, because his biological processes would be going all over the place. We agreed to do it because we were shooting for the moon. We were desperate and had no other options. They did agree to allow us to have our polygrapher present for the procedure, but they sandbagged us. They gave us the wrong address, so we never saw the procedure."

Early that morning, Coleman was taken from his cell and driven to Richmond, Virginia, where he was put into a room by himself. He was tired and hungry, and disconsolate about what might happen to him by nightfall. Without giving him anything to eat, the polygraph was administered and the results analyzed. McCloskey was told that he flunked. "We don't know whether he really flunked or not. We don't know what questions were asked. We've never seen anything on the results. If he did flunk, it wouldn't surprise me given his state of mind, but we have no idea how the test was even administered."

The problem with using a polygraph under such conditions, he adds, is that the odds are stacked heavily against the person. "You're strapped to a machine and you know that if you pass, your life might be saved, but if you flunk or they just interpret it as if you're flunking, it's the final nail on your coffin. If you're nervous, how can they tell the difference between fear and deception?"

State Objects to More Testing; DNA Work Sought on Executed Man

By Frank Green - Richmond Times-Dispatch

October 07, 2000

The Virginia attorney general's office is objecting to DNA testing that could prove the guilt or innocence of Roger Keith Coleman, executed in 1992, because, among other reasons, it says the public does not have a "right to know." The Boston Globe and Centurion Ministries are seeking to have another DNA test on spermatozoa on a vaginal swab taken from Wanda McCoy, who was raped and murdered in Grundy in 1981. Coleman always maintained his innocence of the crime.

Many agreed with him, and the case attracted international media attention. Coleman even appeared on the cover of Time Magazine. The evidence was DNA tested years after Coleman's trial on behalf of Coleman. The test showed Coleman could not be excluded as the rapist. New DNA testing techniques might definitively prove his guilt or innocence, argues the newspaper and Centurion, a New Jersey-based group that works to help free innocent inmates.

But the attorney general's office is opposing any new tests of the evidence being kept in a lab in Richmond, Calif., by DNA expert Edward T. Blake, who performed the original test in 1991. Citing case law, Assistant Attorney General Pamela A. Rumpz wrote Buchanan County Circuit Judge Keary Williams that "regarding the public's 'right to know,' that right 'focuses on the public's interest in important matters.'" "Twenty years after the crime and more than eight years after the execution of the culprit, there simply is no 'important' interest in retesting the very DNA evidence which already limited the perpetrator to .2% of the Caucasian population - including Coleman," she argued. The state also argued that neither the Globe nor Centurion have any legal standing to challenge Williams' Sept. 7 order to Blake to have the material sent back to Virginia and state custody.

The Globe has expressed concerns that the evidence could be damaged in transit. Rumpz said the state had no objection to Williams amending his ruling to make sure the evidence is protected. John A. Farrell, a Globe reporter, said the newspaper is seeking DNA tests in cases in other states as well in light of accusations made by opponents of capital punishment that innocent people may be executed. "By using DNA technology to test the results of previous executions, we can test that theory and arrive at some answers," he said. The Globe has already won the first such court order in the country in a Georgia case, Farrell said.

The attorney general's office cited a Buchanan County court order dated Jan. 28, 1991, which notes that Blake had assured the state that "Dr. Blake will maintain and preserve the evidence at his laboratory until further order of the court." Paul F. Enzinna, a Washington lawyer representing Centurion Ministries, said he sees "common ground here that could form the basis for an agreement by all the parties." He believes the state is leaving the door open to test the material.

Enzinna said he has told the governor's office that Centurion does not want the state to surrender the evidence, "all we want is that the evidence gets tested, and if that means Paul Ferrara testing it, that's fine." Ferrara is the head of the state's Division of Forensic Science. "We're interested in getting this stuff tested and however we can do that that best satisfies everybody who's interested in this is fine with us. Whether Dr. Blake does the testing and Dr. Ferrara goes out there and watches him do it, or Dr. Ferrara does the testing here and we get to observe that," said Enzinna.

BOOK REVIEW: MAY GOD HAVE MERCY: A True Story of Crime And Punishment. (By John C. Tucker Norton. 358 pp. $27.50)

"This is a very fair book." That's what I jotted down upon finishing May God Have Mercy, a fine debut by a Chicago criminal-lawyer-turned- writer who now lives in Virginia's Tidewater area. And it's not easy to be fair when your subject is 1 of those volatile topics, such as politics and religion, about which most people have strong and often diametrically opposed feelings. In fact, May God Have Mercy should probably have been subtitled "A True Story of Crime and the Death Penalty."

Tucker's subject is the case of Roger Keith Coleman, which local readers may recall because it became a national and even an international cause celebre, making the cover of both Time and Newsweek. Coleman was convicted of the 1981 murder of Wanda McCoy in Grundy, Va., a hamlet in the hardscrabble foothills of the Appalachian Mountains. The only real industry is coal mining, and many of the families mentioned in the book live in trailers angled onto steep hillsides.

It's a hard life, and for Wanda McCoy it was an even harder death: "Wanda McCoy was lying on her back....naked from her chest down except for her blue striped socks. Her sweater and bra were pushed up around her neck... A pair of blue jeans lay on the bed, and dark blue satin panties were hooked around her left ankle. A large pool of blood surrounded Wanda McCoy's head, and Brad (her 23-year-old husband, who discovered the body) could see that she had been stabbed twice in the chest. Blood still oozed onto the floor from somewhere under her sweater." That's what death-penalty lawyers call a "bad facts case."

33 days later, the Virginia State Police arrested Roger Keith Coleman, 23, who was married to Wanda's 16-year-old sister, Patricia. Tucker writes, "Coleman's alibi was not bad, but there were some discrepancies, and in (the chief investigator's) mind the discrepancies were beginning to look worse than no alibi at all." What made the picture so dark was that in addition to an alibi with holes Coleman also had a record -- he'd spent almost 2 years in jail for attempted rape (he'd always claimed he was the victim of faulty eyewitness identification). As so often in capital cases (ones in which the state seeks the death penalty), Coleman's court-appointed lawyers had virtually no criminal trial experience, and he was swiftly convicted and sentenced to death.

For 10 years, Roger Coleman lived on death row, where he became the focus and center of an increasingly large (and in some cases influential) circle of people who believed him to be innocent and were determined to get his conviction overturned. Among those most central: Jim McCloskey, the founder of Centurion Ministries, an organization devoted to clearing innocent inmates; Kathleen ("Kitty") Behar, a young associate with Washington's Arnold & Porter law firm, who worked on his case pro bono; Sharon Paul, a pretty college student with whom Coleman (long since divorced by his wife, the victim's sister) corresponded and eventually fell in love; and Russ Ford, the prison chaplain at Virginia's Mecklenburg Penitentiary. As Tucker relates it, the amount of work these people did on Coleman's behalf, not to mention their emotional support, is simply staggering and -- regardless of your opinion of the death penalty -- inspiring.

The 1st part of the book moves rather slowly, though that's probably necessary if the reader is to understand how all these people came to believe in Coleman's innocence, but as the narrative shifts from death row to death watch, the intensity increases, as does the emotional impact. Here's but one example; it involves the chaplain and another prisoner about to be executed: "For some unexplained reason, after Ricky Boggs was strapped into the chair and a mask placed over his face, there was a delay in throwing the switch that would send nearly 2000 volts of electricity through his body. Russ Ford stepped back to comfort Boggs, placing one hand on the back of his head and taking his hand with the other. At that instant the warden yelled, `No, Russ!' Turning at the sound, Ford saw that a light on the deathhouse wall had turned green, a signal that the executioner, in another room, should throw the switch. Russ Ford was one step away when the roar of the current began and Boggs's body lurched forward against the restraining straps."

By the book's end, as Tucker relates the myriad of last-ditch efforts to halt, or at least postpone, the execution, the narrative races. Among these efforts, in addition to the standard pleas to the U.S. Supreme Court, are the attempt to get permission for a lie detector test (it's finally given on the day of the execution) or to get then-Virginia governor Douglas Wilder to commute the sentence based on newly discovered DNA evidence.

Despite a phone call from Mother Teresa, Wilder uses the fact that Coleman fails the lie detector test (a result that surprises no one who knows anything about the polygraph) to deny all appeals for mercy, much less clemency, thereby (at least symbolically) pulling the switch himself.

Some of the last-minute details reflect actions so inhumane that the author can't resist editorializing: "By regulation, Roger's glasses and dental plate, apparently considered potential instruments of suicide, have been taken away -- God forbid he should cheat the executioner..." (But the chaplain negotiates their return, so that once Coleman is safely strapped in, he can see and read his last statement.)

At 11 p.m. on May 20, 1992, Roger Keith Coleman was killed by the State of Virginia for the murder of Wanda McCoy -- a crime, as this sober, non-sensationalistic volume argues so ably, he probably did not commit. May God have mercy, indeed.

Buchanan County Circuit Judge Keary R. Williams of Virginia denied a request to test the DNA evidence in the case of Roger Keith Coleman, who officials executed in 1992 for the rape and murder of his sister-in-law Wanda McCoy. The Washington Post, the Boston Globe, the Richmond Times-Dispatch, and the Virginia Pilot of Norfolk, as well as Centurion Ministries, a charity that investigates claims of wrongful convictions, made the request. The groups believed that Coleman, who always claimed his innocence, was wrongly executed. In his opinion, Judge Williams said there was no benefit to reexamining the case: "How can investigation of the death penalty as it was implemented in 1992 be beneficial in scrutinizing the death penalty as it is carried out in 2001 when the processes are so different?"

Originally, the judge ordered that the biological material be turned over to the state Division of Forensic Science, but left the decision of whether to preserve or destroy the evidence up to the agency. A spokesman for Virginia Attorney General Mark L. Earley said the office agreed with the ruling; it does not believe the newspapers have standing to sue for retesting or that such testing would benefit the public. However, such a petition is not novel. A collection of news organizations successfully petitioned for post-execution DNA testing in Georgia in 2000. The tests were inconclusive.

Allegations

On May 20, 1992, the State of Virginia, with the acquiescence of the federal government, executed Roger Keith Coleman in the electric chair. New evidence, including evidence that another man committed the crime, failed to stop his execution. The state and federal governments failed to secure Coleman’s right to a fair and impartial trial. A missed deadline barred appellate review and resulted in his execution.

Crime

Coleman had a well-documented list of his whereabouts on the night of the murder and several alibi witnesses who gave affidavits.

The state’s own timeline of events the night of the murder suggested it was unlikely Coleman could have committed the murder.

Physical evidence from the crime scene – including soil on McCoy’s hands, an unanalyzed fingerprint on the front screen door of her house, and a pry mark on a door molding – contradicted the prosecution’s theory that the victim willingly allowed her murderer to enter her home, a theory used to convict Coleman.

The prosecution claimed that there was little sign of a struggle. However, the victim had defensive wounds, including cuts on her hands, broken fingernails, and a bruise on her upper arm but the defense did not introduce this evidence.

Testing of semen did not rule out Coleman but later forensic opinions based on more sophisticated DNA testing indicated a second person may have participated in the crime.

At trial, the prosecution presented evidence given by a jailhouse informant who alleged Coleman had confessed to the crime. The informant was released from jail soon after testifying.

Another man later stated that he had killed Wanda McCoy. This man had a history of violence and rape.

Coleman’s chances to appeal his conviction in state and federal courts were restricted when his lawyers missed a deadline for filing his original appeal in state court by one day.

The Trial

There was intense pressure in the community for an arrest in the McCoy murder, and police were frustrated at the lack of evidence tying Coleman to the crime. Coleman had been convicted of attempted rape several years earlier despite his denial of involvement and having an alibi. He served almost two years in prison and was released with a record as a sex offender. This affected his trial for the McCoy murder. Furthermore, McCoy’s husband had immediately named Coleman as a likely suspect because of his access to the McCoy household as Wanda’s brother-in-law.

An expert for the state examined two hairs taken from the victim’s body, compared them with Coleman’s, and found they were consistent with his hair type. Coleman’s attorney did not present effective challenges to this testimony. The state presented a seemingly impossible series of events between Coleman’s arrival at the mine and the victim’s husband’s discovery of her body, but the prosecution was able to point out some uncertainties in testimony of alibi witnesses. Blood type testing did not rule Coleman out, nor did it show he had a role in the murder.

A jailhouse informant claimed Coleman had confessed to him while Coleman was in the county jail awaiting trial. No other suspect was asked to provide hair or blood samples for comparison with those recovered from the victim’s body. Roger Coleman was convicted and sentenced to death.

Appeals

Confusion and disagreements about deadlines in the state courts led to a judge’s order refusing the state habeas corpus petition. Coleman’s lawyers had 30 days under Virginia law to file an appeal to the refusal. Their calculations were different than those of the state. They sent the appeal by regular, not certified mail, and it arrived after the 30-day deadline. Coleman’s appeal was, therefore, dismissed without review. This ruling crippled Coleman’s subsequent attempts to have his claims heard. The U.S. Supreme Court supported the state’s position that the missed deadline precluded federal review of his habeas claims. Clemency was refused partly because of the certainty with which the courts refused the appeals. Before Coleman’s scheduled execution, Governor Douglas Wilder agreed to grant clemency if Coleman passed a polygraph test. Coleman failed the test just hours before he was executed.

Conclusion

Roger Keith Coleman was executed despite compelling evidence of his innocence. Coleman’s attorneys had made claims about a biased jury, ineffective assistance of counsel, and exculpatory evidence withheld by the state, all of which would have been constitutional violations. The merits of these claims were never considered because his lawyers missed a deadline by one day. He was executed without full review. As U.S. Supreme Court Justice Harry Blackmun observed in his dissent, "one searches the majority’s opinion in vain for any mention of Coleman’s right to a criminal proceeding free from constitutional defect or his interest in finding a forum for his constitutional challenge to his conviction and sentence of death."

Present Situation

Cruel and Incredible: The Case of Roger Coleman

All too frequently, compelling new claims of innocence are never addressed during the appeal process because of procedural barriers intended to prevent undue delay in carrying out death sentences. This judicial vacuum can lead to bizarre events immediately prior to an execution, where substantial doubt over the prisoner's guilt remains but all legal avenues of appeal have been exhausted.

On 22 May 1992, Roger Coleman was put to death by the state of Virginia. Years after his conviction, new evidence was uncovered which implicated a different suspect and which challenged the prosecution’s theory of the crime. So troubling were the lingering uncertainties concerning his guilt that Governor Douglas Wilder offered Coleman a polygraph test (also known as a 'lie detector'). The offer inferred that if Coleman passed the test, the Governor might reconsider his decision not to commute the death sentence. The test monitors the assumed rise in the heart rate and blood pressure caused by the stress of lying to determine truthfulness. It was carried out on the day of Coleman's scheduled execution.

Strapped and wired for the test in a manner not unlike that used for the death by electrocution he would face later that same day, Coleman not surprisingly 'failed' the polygraph and was executed within hours. Governor Wilder later told the press: "If he had passed...it could have affected what the ultimate result would have been".5

Roger Coleman was charged with the 1981 rape and murder of his sister-in-law, Wanda McCoy. Too poor to afford a private attorney, he was represented at trial by court-appointed lawyers who had never handled a murder or rape case before and who neglected to fully investigate many significant points of evidence. At trial, the defence failed to challenge crucial aspects of the prosecution's case, severely limiting the scope of Coleman's post-conviction appeals.

Although the case against him was entirely circumstantial, Roger Coleman was sentenced to death. The only direct evidence came from the testimony of Roger Matney, a jail-house informant who claimed that Coleman had confessed to the crime. A month before the trial, all four sentences which Matney was serving were suspended and he was released from custody on the urging of Coleman's prosecutor. Matney has since recanted his testimony.

On initial appeal, Coleman was represented by attorneys who failed to file a timely notice of appeal with the Virginia Supreme Court. The necessary paperwork was inadvertently filed just after the 30-day deadline had expired. Prosecutors requested that the Court dismiss the appeal without addressing its merits because it was "procedurally defaulted"; the Court wrote a one-paragraph order summarily denying Coleman's petition without review.

The federal courts ruled that Coleman could not appeal on constitutional issues because he had "waived" his state review by filing after the deadline. The US Supreme Court agreed, citing the need to show adequate respect for the findings of state courts and the obligation to protect state officials from having to endure uncertainty and undue delay in the resolution of criminal cases. The Supreme Court's decision in Coleman v. Thompson created a new rule under which almost any failure of an inmate to meet the procedural requirements of the state courts results in forfeiture of the right to file a habeas corpus petition in federal court.

According to the Supreme Court decision, "Coleman must bear the risk of attorney error that results in procedural default". The Court further ruled that Coleman had no right to challenge mistakes made by his appellate attorneys, since he was not constitutionally entitled to a lawyer at that point in the proceedings.

Before his arrest, Roger Coleman was a coal miner in rural Virginia. It defies all reason to presume that he was fully versed in Virginia capital trial procedures and the complexities of Federal habeas corpus appeals. For the US Supreme Court to conclude that the defendant must bear the fatal consequences of mistakes made by his lawyers is to render meaningless the most basic legal protections afforded by the US Constitution.

Roger Keith Coleman (November 1, 1958 – May 20, 1992) was a Grundy, Virginia, coal miner convicted and executed for the murder of his sister-in-law, Wanda McCoy. Coleman's case drew national attention before and after his execution because of his repeated claims of innocence.

On January 12, 2006, Virginia Governor Mark Warner announced that recently re-examined DNA evidence had conclusively proved Coleman's guilt.

The Crime

Nineteen-year-old Wanda McCoy was attacked in her home on March 10, 1981. She was raped, stabbed to death, and nearly beheaded. There was little sign of a struggle and, as she seldom opened the door when she was home alone, it was assumed she had allowed her attacker into the house.

Roger Coleman, her sister's husband, had access to the house and immediately became a suspect. Coleman, who worked in a mine, had reported to work that night but had left when his shift was dismissed.

A fingerprint was found on the front screen door and a pry mark on the front door molding, and bloodstains inside the house. The victim had broken fingernails, cuts on the hands, and a dark, dusty substance on her body.

The Case

Coleman was convicted of raping and murdering McCoy in 1982.

The prosecution for the case asserted:

• The lack of forced entry showed McCoy knew her attacker

• Coleman had been previously convicted of attempted rape and indecent exposure

• A hair found on McCoy's body belonged to Coleman

• Blood found on Coleman's clothes was McCoy's blood type

• A fellow prisoner maintained that Coleman had confessed the crime

Coleman's defense maintained:

• There was indeed evidence of forced entry (the pry mark on the door).

• DNA tests of the semen found on the victim's body implicated more than one person

• The prosecution claimed there was no struggle, however the victim had cuts, a bruise in her arm and broken fingernails

• Coleman had a documented alibi and several witnesses who gave affidavits

• The timeline presented by the prosecution suggested that it was unlikely Coleman committed the crime

• Another man who had previously been convicted of rape claimed to have killed McCoy

State Appeals

Coleman's initial appeal to the Virginia Supreme Court was denied, and the Supreme Court of the United States denied certiorari. Coleman then filed a petition for a writ of habeas corpus in the Circuit Court for Buchanan County, raising several federal constitutional claims for the first time.

A two day evidentiary hearing was held, the court denied all of Coleman's claims, and on September 4, 1986, the court entered its final judgment.

Coleman next appealed to the Virginia Supreme Court, but this appeal was dismissed on the motion of the Commonwealth because his notice of appeal was not filed timely.

Virginia Supreme Court Rules require that a notice of appeal be filed within 30 days of entry of the final judgment; Coleman's notice of appeal was filed on October 7, which was 33 days after the circuit court entered its judgment.

Federal Petition for Habeas Corpus

After his appeal was dismissed on procedural grounds, Coleman petitioned in the United States District Court for the Western District of Virginia for a writ of habeas corpus.

However, federal courts generally may not review a state court's denial of a federal constitutional claim if the denial is based on a state procedural default that is independent of the federal claim and is sufficient to support the prisoner's continued custody.

Since Coleman was in procedural default of his appeal in state court, this was independent of his federal constitutional claims, and was adequate to support his continued custody, he was ineligible for relief in a federal habeas corpus proceeding.

Although finding that Coleman was in procedural default, the District Court addressed all of his claims, finding them without merit. The United States Court of Appeals for the Fourth Circuit affirmed the District Court's ruling, as did the Supreme Court of the United States.

Controversy and Execution

In 1990, new DNA tests seemed to add to evidence against Coleman by putting him within the 2% of the population who could have committed the crime. Some argued that DNA and blood tests combined reduced this figure to 0.2%.

While on death row, Coleman's claims of innocence reached an international audience. Time magazine put Coleman on its cover and Pope John Paul II opposed his execution. Virginia Govenor Douglas Wilder received 13,000 calls and letters about Coleman from around the world, nearly all in favor of clemency.

Wilder arranged a secret, last-minute lie-detector test for Coleman, who failed. Coleman shared a final meal of cold pizza with James McCloskey, executive director of Centurion Ministries, who had been working since 1988 to prove Coleman's innocence.

On May 20, 1992, the Commonwealth of Virginia executed Roger Keith Coleman in the electric chair. As Coleman was strapped into the electric chair, he made one final declaration. "An innocent man is going to be murdered tonight," he said. "When my innocence is proven, I hope America will realize the injustice of the death penalty as all other civilized countries have."

Subsequent Examination of Evidence

Centurion Ministries and four newspapers, including the Washington Post, sought to have DNA evidence from the case re-examined in 2000. In 2002 the Virginia Supreme Court declined their request, and Centurion Ministries subsequently appealed to Virginia Governor Mark Warner.

On January 5, 2006, Warner ordered DNA evidence to be retested. The evidence was sent to the Centre for Forensic Science in Toronto, which determined that there was a 1 in 19 million chance that the DNA belonged to someone other than Coleman.

On January 12, 2006 Warner's office announced that the test results confirmed Coleman's guilt.

Signficance for the Anti-Death Penalty Movement

Coleman's case was the second instance in U.S. history where DNA evidence was examined after the person in question had been executed. DNA tests in 2000 were inconclusive for Ellis W. Felker, who was executed in 1996 in Georgia. (2000 DNA tests proved the innocence of Frank L. Smith, who died of natural causes while on Florida's death row.)

Supporters who believed Coleman's innocence had expected DNA tests to exonerate Coleman. Some death penalty opponents also believed that evidence of an innocent man's execution would have a profound impact on the death penalty debate in the United States, and help accelerate a growing reluctance to use execution.

However, the results prompted death penalty supporters to argue that Coleman's case instead showed that proper safegards were in place.

References

• Dao, James. "DNA Ties Man Executed in '92 to the Murder He Denied." New York Times, January 13, 2006.

• "DNA: Virginia Executed the Right Man," CNN.com, January 12, 2006.

• Glod, Maria and Michael D. Shear. "DNA Tests Confirm Guilt of Executed Man." Washington Post, January 13, 2006, p. A1.

• Glod, Maria. "DNA Tests May Signal Shift in Death Penalty Debate." Washington Post, January 17, 2006, p. B5.

• Still, Kathy. "'Tell Them I Said Hello,' He'd Say." Bristol Herald Courier, January 11, 2006.

• Tanner, Robert. "DNA Test Confirms Guilt in 1992 Execution" Associated Press, January 13, 2006.

• "Tests Reaffirm Coleman's Guilt." Richmond Times-Dispatch, Jan 12, 2006.

• Willing, Richard. "DNA Tests Confirm Man Executed in 1992 was Guilty." USA TODAY, January 12, 2006.

Wikipedia.org

Cruel and incredible: the case of Roger Coleman

All too frequently, compelling new claims of innocence are never addressed during the appeal process because of procedural barriers intended to prevent undue delay in carrying out death sentences. This judicial vacuum can lead to bizarre events immediately prior to an execution, where substantial doubt over the prisoner's guilt remains but all legal avenues of appeal have been exhausted.

On 22 May 1992, Roger Coleman was put to death by the state of Virginia. Years after his conviction, new evidence was uncovered which implicated a different suspect and which challenged the prosecution’s theory of the crime. So troubling were the lingering uncertainties concerning his guilt that Governor Douglas Wilder offered Coleman a polygraph test (also known as a 'lie detector').

The offer inferred that if Coleman passed the test, the Governor might reconsider his decision not to commute the death sentence. The test monitors the assumed rise in the heart rate and blood pressure caused by the stress of lying to determine truthfulness. It was carried out on the day of Coleman's scheduled execution.

Strapped and wired for the test in a manner not unlike that used for the death by electrocution he would face later that same day, Coleman not surprisingly 'failed' the polygraph and was executed within hours. Governor Wilder later told the press: "If he had passed...it could have affected what the ultimate result would have been".(5)

Roger Coleman was charged with the 1981 rape and murder of his sister-in-law, Wanda McCoy. Too poor to afford a private attorney, he was represented at trial by court-appointed lawyers who had never handled a murder or rape case before and who neglected to fully investigate many significant points of evidence. At trial, the defence failed to challenge crucial aspects of the prosecution's case, severely limiting the scope of Coleman's post-conviction appeals.

Although the case against him was entirely circumstantial, Roger Coleman was sentenced to death. The only direct evidence came from the testimony of Roger Matney, a jail-house informant who claimed that Coleman had confessed to the crime. A month before the trial, all four sentences which Matney was serving were suspended and he was released from custody on the urging of Coleman's prosecutor. Matney has since recanted his testimony.

On initial appeal, Coleman was represented by attorneys who failed to file a timely notice of appeal with the Virginia Supreme Court. The necessary paperwork was inadvertently filed just after the 30-day deadline had expired. Prosecutors requested that the Court dismiss the appeal without addressing its merits because it was "procedurally defaulted"; the Court wrote a one-paragraph order summarily denying Coleman's petition without review.

The federal courts ruled that Coleman could not appeal on constitutional issues because he had "waived" his state review by filing after the deadline. The US Supreme Court agreed, citing the need to show adequate respect for the findings of state courts and the obligation to protect state officials from having to endure uncertainty and undue delay in the resolution of criminal cases. The Supreme Court's decision in Coleman v. Thompson created a new rule under which almost any failure of an inmate to meet the procedural requirements of the state courts results in forfeiture of the right to file a habeas corpus petition in federal court.

According to the Supreme Court decision, "Coleman must bear the risk of attorney error that results in procedural default". The Court further ruled that Coleman had no right to challenge mistakes made by his appellate attorneys, since he was not constitutionally entitled to a lawyer at that point in the proceedings.

Before his arrest, Roger Coleman was a coal miner in rural Virginia. It defies all reason to presume that he was fully versed in Virginia capital trial procedures and the complexities of Federal habeas corpus appeals. For the US Supreme Court to conclude that the defendant must bear the fatal consequences of mistakes made by his lawyers is to render meaningless the most basic legal protections afforded by the US Constitution.

Once a prisoner is executed in the USA, the case is considered legally closed. The US criminal justice system offers no legal mechanism to review posthumous claims and uncover lethal error. It will likely never be known with absolute certainty if Roger Coleman was guilty or innocent of the crime for which he was put to death. Nonetheless, his case history illustrates many of the structural flaws which can result in mistaken executions. Its troubling outcome establishes beyond doubt that the authorities in the USA are prepared to execute prisoners even when confronted with substantial questions about their actual guilt.

Last Statement:

"An innocent man is going to be murdered tonight. When my innocence is proven, I hope Americans will realize the injustice of the death penalty as all other civilized countries have."

— Roger Keith Coleman, executed in Virginia on May 20, 1992

 

Tried by a jury under indictments charging him with the rape of Wanda Faye Thompson McCoy and with the willful, deliberate, and premeditated killing of the same victim during the commission of rape, capital murder as defined in Code § 18.2-31(e). Roger Keith Coleman was found guilty as charged. The jury fixed his punishment for rape at confinement in the penitentiary for life.

In the second part of the bifurcated proceeding required by Code §§ 19.2-264.3 and -264.4 in the capital murder case, the jury fixed Coleman's sentence at death. On April 23, 1982, after considering the probation officer's report, the trial court imposed the death sentence; in the same order, the court entered judgment on the jury verdict in the rape case. We have consolidated the automatic review of Coleman's death sentence with his appeal of his conviction of capital murder and have given them priority on our docket.

At the end of his shift, McCoy drove home in his car, arriving about 11:15 p.m. Although Wanda usually left the porch light on for him, no outside lights were shining when he knocked on the door; Wanda usually kept both the storm door and the wooden front door locked. Receiving no answer, McCoy opened the storm door, which was unlocked, then opened the front door with his key, and entered the living room. He saw that the coffee table had been moved, there were "slight drips of blood on the floor," and the light and the television were on.

He called for Wanda but heard nothing. Going to the back bedroom, where a light was on, he found his wife lying on her back on the floor. Her hair was pulled over her face, she had a wound in her chest, and there was blood beside her head. Her arms were stretched behind her head and her legs were lying straight out and apart. She appeared to be dead; McCoy did not touch her. He found no signs of forced entry into the house.

McCoy telephoned his father, Max McCoy, known as Hezzie, who lived 400 to 500 yards away, and told him that Wanda had been killed. McCoy turned on the porch light, initially waited for his father, but after a few minutes ran to meet him. After Hezzie called the sheriff's office at 11:21 p.m., McCoy and his father returned to McCoy's house, looked at the body but did not touch it, and met the police officers who began to arrive.

McCoy said that Coleman's wife was a younger sister of Wanda's, that the Colemans lived in the home of Coleman's grandmother, which was a five-minute walk from the McCoy house, and that on the night before Wanda's death the Colemans stopped by the McCoys' but only Coleman's wife came into the house. Sergeant Steven D. Coleman, of the Buchanan County Sheriff's Department, arrived about 11:25 p.m. accompanied by another officer. He tried to check Wanda's neck for a pulse but found it "so badly torn up" that he could not do so. There was a large gaping hole in the front of her neck; a pool of blood was around her head.

Other local and state law enforcement officers promptly came to the McCoy house to assist in the investigation. Randall S. Jackson, Chief of Police for the Town of Grundy, arrived about 11:27 p.m. He observed what appeared to be bloodstains on the floor and wall of the living room, and "tracks of blood, where something had been dragged" through the hallway and into the bedroom in which he found Wanda's body. Jackson felt her wrist, which was "very warm," but found no pulse. He sent an officer for Dr. Thomas D. McDonald, the medical examiner, and arranged to secure the premises. At daybreak, Jackson measured the depth of Slate Creek, located 75 to 100 yards from the McCoy house, at 10 to 12 inches.

Dr. McDonald, who lived nearby, arrived at 11:35 p.m. He made a superficial examination of Wanda, confirmed that she was dead, but did not move her pending the arrival of a State Police special investigating unit. Wanda was lying on her back, partially clothed, with her panties around her left ankle, arms over her head, and legs extended. She had a large laceration of the neck and two puncture wounds in her chest. Dr. McDonald determined that the cause of death was the "slashing wound to the throat." The body was still warm, rigor mortis had not set in, and Dr. McDonald estimated that Wanda had died about 10:30 p.m., or within 30 minutes before or after that time.

A neighbor testified that when she took the trash out of her house about 10:30 p.m. she saw the porch light burning at the McCoy residence. The Commonwealth offered color photographs showing the scene of the crime and different views of the victim's body. Over Coleman's objection, the trial court admitted 14 of the photographs after excluding two as repetitious and one as inflammatory.

The victim's body was removed to Roanoke where Dr. David W. Oxley performed an autopsy on March 12. Dr. Oxley testified that death was caused by a "slash wound" of the throat with cutting of the "right carotid artery, jugular vein and larynx." He also found two stab wounds in the chest. One, measuring 1 1/4 inch by 1/16 inch, with a depth of 4 inches, had penetrated the heart and lung. Because there was little or no hemorrhaging from this wound Dr. Oxley concluded it had been inflicted after death. The other, measuring 1 3/4 inch by 1/16 inch, also with a depth of 4 inches, had penetrated the liver; Dr. Oxley was of opinion that this wound was inflicted after death or close to the time of death.

He described the neck wound as a single cut, two to three inches in depth without "hesitation marks," leading from the right side of the neck to the left and downward. Dr. Oxley found two foreign hairs in the victim's genital area. He submitted these, samples of her pubic hairs, blood, swabs from her mouth, hands, vagina, and rectum, and the panties found wrapped around her left foot, to Elmer Gist, Jr., a forensic scientist.

Out of the presence of the jury, the trial court conducted a hearing on the admissibility of statements made by Coleman on March 11 and 12 to Jack E. Davidson, Special Agent with the Virginia State Police, one of the investigating officers. Davidson testified there were several suspects, including Coleman, whose activities police were "exploring at that particular time." He and another officer went to Coleman's grandmother's residence on March 11 and asked Coleman "if it was all right, if he could talk to us." According to Davidson, Coleman said "sure," and the interview was conducted, beginning at 12:32 p.m., as the two sat in Davidson's car; the other officer remained at the house.

Davidson explained that he did not give Coleman Miranda warnings because the suspect was "not in an accusatory status" but was "in an investigative status." Davidson said Coleman was not under arrest and was free to go at any time. The officer was unable to record his interview because of a malfunction of the equipment, but he made notes of Coleman's statement. Coleman was a coal miner, employed by T J and M Coal Company.

His statement was exculpatory, purporting to account in detail for his time on the night of the killing. Thus, he said he left his home at 8:30 p.m., left the Speedy Market at 9:05 p.m., went to other listed places at specified times before and after finding that his shift at the mine had been terminated, and arrived at 10:50 p.m. at the bathhouse in town where he took a shower and changed his clothes before returning home. When Davidson asked Coleman for the clothes he wore that night, Coleman turned over to him a plastic bag of clothing and a knife. In the bag was a pair of dirty blue jeans; the bottom 10 to 12 inches of each pants leg were wet. Davidson had the clothing delivered to the Bureau of Forensic Science in Roanoke.

On March 12, Davidson interviewed Coleman again. Davidson testified that Coleman was still a suspect, but was free to leave if he wished to do so, and was not given Miranda warnings. Davidson told Coleman that he had investigated the mine site and found there was no water there to get his blue jeans wet. Coleman then said when he took a shower at the bathhouse, he probably laid his blue jeans down and water from the shower got them wet. Subsequently, Coleman relinquished another knife to Davidson.

Coleman was arrested on April 13. Over Coleman's objection, the trial court ruled the statements of March 11 and 12 were admissible because Coleman gave them when he was neither under arrest nor in a "custodial interrogation situation" but instead was free to leave; Miranda warnings, therefore, were not required. A portion of one of the statements relating to polygraph examinations was excluded.

On March 13, Davidson testified, he met Coleman "at his in-laws' residence" and asked if he would consent to a search for body fluids and hair. Davidson said Coleman agreed and, after being informed of his constitutional right to insist upon a search warrant, signed a consent authorizing a warrantless search of his body. The consent permitted removal of any property "or body fluids."

Davidson testified that Coleman also consented to have samples of body hair taken. Over Coleman's objection, the trial court ruled, on the basis of Davidson's uncontradicted testimony, that Coleman had consented to a search of his body and that all items taken in the search would be admissible. Davidson stated that samples of Coleman's blood, head hairs, pubic hairs, and saliva were taken and mailed to the Bureau of Forensic Science.

Elmer Gist, Jr., a forensic serologist employed by the Commonwealth of Virginia Bureau of Forensic Science, testified that he made an analysis of the items delivered to him by Dr. Oxley and the investigating officers. He said the two apparently foreign hairs found in Wanda's pubic area were, in fact, not those of the victim but were consistent with pubic hair samples taken from Coleman.

Gist concluded that these two hairs came either from Coleman or, by a possible but unlikely coincidence, from some other person of the same race whose hair had the same color, diameter, general configuration, and microscopic characteristics. Gist testified that Coleman was a secretor, one whose "blood type factor" is present "in semen, saliva or other body fluids," and that 80% to 85% of the population are secretors. Gist determined that Coleman had Type B blood, a rare type possessed by only 10% of the population. Wanda's blood was Type O, a type which 40% to 45% of the population have; her husband's was Type A.

From Gist's examination of the vaginal specimen taken from the victim's body he found that spermatozoa had been deposited in her vagina by a secretor with Type B blood. He also determined that a bloodstain on Coleman's blue jeans was made by Type O human blood. Gist found blood on one of Coleman's knives but not in sufficient quantity to enable him to determine whether it was human or animal blood. According to Gist, Coleman's blue jeans were dirty and had "blackish stains on the upper legs in particular." Photographs of the victim depicted a very dark, fine substance on her hands. Charles Crabtree, owner of the Speedy Market, testified that Coleman came into his store on March 10 about 8:00 p.m. and stayed about ten minutes.

Gary Scott Stiltner testified that on March 10 he was scheduled to work his regular 3:30 to 11:30 shift but had not gone to work. About 10:15 or 10:20 p.m. Coleman came to his trailer in Boyd's Trailer Park, where he and his wife, Sandra, and infant daughter lived, and asked for the return of a tape which Stiltner's wife had borrowed. Upon receiving the tape, Coleman departed. Sandra K. Stiltner recounted an incident that occurred on Friday, March 6.

Shortly after her husband went to work that afternoon, Coleman stopped by her trailer and discussed tapes with her and a neighbor. During a brief interval when they were alone, Coleman asked her what she liked to drink and offered to get her whatever she wanted, but she declined and left to join other neighbors. Sandra Stiltner also testified that when Coleman stopped by for his tape on March 10 she glanced at a clock and noticed that it was 10:20 p.m.

Roger L. Matney, a convicted felon, testified that when he had been incarcerated in the same cell block with Coleman in the county jail, Coleman had described for him the killing and rape of the victim. According to this witness, Coleman drew on a newspaper a diagram of the McCoy house and said he and another man were in the house and after the victim's husband called her about 9:00 p.m., Coleman's companion cut her and she began to scream.

Matney believed Coleman said the other man was "Danny Ray." Coleman told Matney the two men took the victim to the bedroom and both raped her. The knife "was supposed" to have been hidden under Black Watch Bridge. Coleman began to say something about a paper towel when the conversation ended. (Other evidence of the Commonwealth showed that a paper towel was found near the victim's body).

Elmer T. Miller, a forensic scientist, testifying for the defense, said that from his examination of swabs received from Dr. Oxley he determined that the very dark, fine substance found on the victim's hands was soil and particles of plant material, not coal dust. Other witnesses for the defense testified to times and places they had seen Coleman on the night of the crimes.

Kermit Stiltner said he saw Coleman at the Speedy Market about 8:00 p.m. and talked with him 10 or 15 minutes. Johnny L. Stiltner, a night watchman at T J & M Coal Company, who also regularly drove miners to the mine, saw Coleman in work clothes at Breeding's Store about 9:25 p.m. and told him Coleman had been "laid off" his job which normally began at 9:30. Coleman followed Stiltner to the mine, "got his stuff," and left between 9:30 and 9:45.

Ronald G. Perkins, second shift foreman at T J & M Coal Company, saw Coleman about 10:00 p.m. when he came to the mine for his boots and hat. Coleman was wearing blue jeans, which the witness did not think were wet. Philip VanDyke, who worked at another mine, met Coleman at the mouth of Looney's Creek about 10:10. They talked for 10 to 15 minutes and parted company about 10:25 to 10:30.

Other evidence established that from the mouth of Looney's Creek it was approximately four miles to the McCoy's *41 neighborhood and eight miles to Boyd's Trailer Park, the McCoy residence being approximately halfway between the two. VanDyke clocked in at his mine across the creek at 10:41. Gary Owens saw Coleman alone in his truck near the Gary Scott Stiltner trailer between 10:00 and 11:00.

Coleman's wife, Patricia, 17, testified that between 8:00 and 8:30 on March 10 her husband left for work from his grandmother's house where they were living. She did not recall when he came home but he explained that he had returned early because he had been "laid off." The night before the murder, she and Coleman drove to the McCoys' house. Patricia returned some recipes to her sister while Coleman remained in the truck. The Colemans often visited the McCoys and "a couple of times" stayed with Wanda when her husband was at work.

Garnett M. Coleman testified that Coleman was her grandson but she and her husband had adopted him when he was 14 and he had lived with her nearly all his life. According to her, Coleman left to go to work on March 10 about 8:30 and returned about 11:05. She said that she "got mixed up" when she first told one of the investigating officers Coleman came home at 11:30. Coleman, 23, testified in his own defense. He described the events at Boyd's Trailer Park on March 6.

That day, he said, he and David Keller got off work about 6:30 or 7:00 a.m., went to the trailer of Keller's brother, Tom, and spent the day drinking. Several of them went to the Stiltner trailer and in the company of Sandra Stiltner listened to tapes, including one Coleman brought from his truck. After 30 to 45 minutes, Coleman departed, forgetting to take his tape.

Coleman's testimony about his activities on March 10 closely followed the statement he gave to Special Agent Davidson on March 11. Coleman said he left home at 8:30, drove to the Speedy Market, got a box there, talked to Crabtree and Kermit Stiltner, and left about 9:05. He drove to the mouth of Looney's Creek, arriving at 9:10, but his transportation to the mines had already left. He drove on to Breeding's Store, where he found the "man trip" (vehicle used to transport workers to the mines) stopped.

Johnny Stiltner and David Keller were there; Stiltner told Coleman his shift had been laid off. After five or ten minutes Coleman drove back to Grundy but remembering that he had left his mining equipment at the mine, he turned around about 9:25 or 9:30, and drove to the mine site, arriving about 9:45 or 9:50. He *42 talked to Perkins, the second-shift foreman, Johnny Stiltner, and David Keller. Leaving the mine site about 10:00 he met VanDyke on the road. At the mouth of Looney's Creek they talked for 15 or 20 minutes. Coleman said he looked at his watch for the exact time only at 8:30 when he left home and about 9:05 when he left the Speedy Market. All other times to which he testified were estimated.

Coleman said he drove to Boyd's Trailer Park to see Tom Keller but when he discovered the lights were out at Keller's trailer he went to the Stiltner trailer and retrieved **870 the tape he had left there. It was then about 10:40 to 10:45. Coleman drove to the bathhouse in Grundy, arrived about 10:50, showered, left about 11:00, and was at home about 11:05. His pants probably got wet when he threw his work clothes on the floor of the shower.

He said the blue jeans he had been wearing that evening were the pants he had worked in the two previous evenings. He acknowledged that on March 11 he told Davidson that he probably got his pants wet at the mines. He conceded that in going from the mouth of Looney's Creek to Boyd's Trailer Park and then to thebathhouse he passed the McCoys' residence, but he denied having stopped there or having murdered or raped Wanda McCoy. He found out about the crimes when Peggy Stiltner, his wife's sister, came to his grandmother's house after midnight.

Coleman denied having made any admission to Matney or any other inmate of the jail. He said he had heard some details of the crime from his wife's family. He related to inmates what he had learned, that the victim's throat had been cut, she had been stabbed twice, she only had her socks on, and a paper towel had been found. According to Coleman, his uncle, who apparently got the information from Randall Jackson, told him about the towel. On cross-examination Coleman acknowledged that he knew Bradley McCoy worked the second shift.

Later in his testimony, when he was asked how Type O blood got on his blue jeans, he replied that the cat at his house might have scratched someone there, or that someone at the mine the night before might have been cut. Coleman was then shown a picture of the victim depicting blood on her right leg and was asked whether the blood on the left leg of his pants had not actually come from the right leg of the victim. An objection to this question was overruled; Coleman answered in the negative.

Coleman said the blood found on one of *43 his knives was from squirrels he had killed in September or October. Coleman said "[i]t seemed like ... [the officers] came just about every other day, sometimes every day, for three or four days in a row," he was willing to talk with them, and he cooperated because he was "trying to clear" himself "so the police would gon on and find who did this."

The Commonwealth called two rebuttal witnesses. Patricia Coleman said she was not aware the cat had scratched anyone in such a fashion as to cause blood to get on her husband's blue jeans; Randall Jackson denied having told Coleman's uncle about a paper towel found at the scene of the crimes.

Shortly before 11:00 p.m. on March 18, 1982, the jury found Coleman guilty of capital murder. On the next morning, Coleman's motion to set aside the verdict on the ground the evidence was insufficient was denied. The sentencing phase of the trial followed promptly.

Brenda F. Rife, 36, testified as a witness for the Commonwealth. She described an attempted rape committed by Coleman on April 7, 1977. On that date, the witness stated, because of flooding several days earlier, electric and telephone services were cut off and all the schools were closed. As she was a school teacher, she remained at home with her six-year-old daughter after her husband left for work that morning. Coleman, whom she had never seen before, was admitted to the house when he asked for a drink of water.

After some conversation, Coleman pulled a gun and forced her to tape her daughter's hands and feet and place her in a child's rocking chair. Coleman then walked Mrs. Rife at gunpoint upstairs to the bedroom where he ordered her to undress. When she refused, he ripped open the bathrobe she wore, threw her on the bed, and got on top of her. She struggled, scratched the intruder on the neck, and attempted to dissuade him from his purpose. Seizing an opportunity to escape when Coleman went for his gun, which he had laid down, Mrs. Rife ran downstairs, picked up her daughter, and fled from the house. Coleman ran after them and attempted to pull them back inside but in the ensuing struggle Mrs. Rife seized his weapon, threw it under the porch, and screamed for help. As neighbors came to the rescue, Coleman ran away.

The entire episode lasted approximately ten minutes, according to Mrs. Rife, and throughout this time Coleman " never really raised his voice," which she described as "[v]ery cold." She recalled, "It was just like, do it or die." The Commonwealth introduced a certified copy of Coleman's conviction for the attempted rape of Brenda Rife. He was sentenced to serve three years in the State penitentiary by order entered July 29, 1977, by the Circuit Court of Buchanan County.

The defense called two ministers as witnesses. Thomas F. Bradley, a jail chaplain, visited Coleman six days a week during the period of three months prior to trial when Coleman had been incarcerated in jail in Bristol. Bradley stated that his communications with Coleman were privileged. Contrary to the recommendation of his attorneys, Coleman declined to waive the privilege and asserted that he did not want to appear to be "using the Lord" in any way. The minister testified that he believed Coleman was sincere in his religious convictions.

Michael Trent, minister of Little Prater Church of Christ, had known Coleman since he was about nine years old but had not had "a good connection with him" during the past ten years. He had come to know him personally after Coleman was incarcerated. Coleman decided to be baptized about a month after he was first confined and, at his request, Trent baptized him in jail. Coleman pursued Bible study in jail; Trent believed he was sincere. Coleman testified again in his own behalf. He said that after the jury found him guilty it made no difference whether the penalty was death or life imprisonment, that "[i]t's up to the Lord now, anyway."

895 F.2d 139

Roger K. COLEMAN, Petitioner-Appellant,
v.
Charles THOMPSON, Warden, Respondent-Appellee.

No. 89-4002.

United States Court of Appeals,
Fourth Circuit.

Argued Oct. 2, 1989.
Decided Jan. 31, 1990.
Rehearing and Rehearing In Banc Denied Feb. 27, 1990.

Before CHAPMAN, Circuit Judge, BUTZNER, Senior Circuit Judge, and MERHIGE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

BUTZNER, Senior Circuit Judge:

B

C

D

E

II

III

IV

V

THE GLOBE NEWSPAPER COMPANY,d/b/a THE BOSTON GLOBE
v.
COMMONWEALTH OF VIRGINIA

Record No. 012682

THE WASHINGTON POST, ET AL.
v.
COMMONWEALTH OF VIRGINIA

Record No. 012683

November 1, 2002

OPINION BY JUSTICE DONALD W. LEMONS

PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and Lemons, JJ., and Compton, S.J.

FROM THE CIRCUIT COURT OF BUCHANAN COUNTY

Keary R. Williams, Judge

     Twenty-one years after the rape and murder of Wanda McCoy, twenty years after the trial of Roger Keith Coleman for these offenses, and ten years after his execution, we consider whether the trial court erred in refusing petitions by several newspapers for access to DNA evidence for the purpose of re-testing the evidence.

I.  Facts and Procedural History

     In 1982, Roger Keith Coleman (“Coleman”) was tried by a jury in the Circuit Court of Buchanan County and was convicted of the rape and capital murder of Wanda McCoy.  For the rape, he was sentenced to confinement in the penitentiary for life, and for the capital murder, he was sentenced to death.  We affirmed the convictions and the sentences.  See Coleman v. Commonwealth, 226 Va. 31, 307 S.E.2d 864 (1983), cert. denied, 465 U.S. 1109 (1984).  Coleman sought review of his convictions by various petitions for writs of habeas corpus[1] and a final application for a stay of execution to the Supreme Court of the United States, which was denied.  See Coleman v. Thompson, 504 U.S. 188 (1992).  In accordance with the order of the Circuit Court of Buchanan County, he was executed in 1992.

     The pretrial investigation of the rape and murder of Wanda McCoy resulted in collection of biological material including spermatozoa collected from the vagina of the victim.  In 1982, DNA testing of this material was not available.  Elmer Gist, Jr., a forensic serologist employed by the Commonwealth, testified at trial concerning comparison of hair samples and blood typing tests.  Summarizing Gist’s testimony, we stated in our opinion upon direct appeal of Coleman’s conviction that

two apparently foreign hairs found in Wanda’s pubic area were, in fact, not those of the victim but were consistent with pubic hair samples taken from Coleman. . . .

     Gist testified that Coleman was a secretor, one whose “blood type factor” is present “in semen, saliva or other body fluids,” and that 80% to 85% of the population are secretors.  Gist determined that Coleman had Type B blood, a rare type possessed by only 10% of the population.  Wanda’s blood was type O, a type which 40% to 45% of the population have; her husband’s was Type A.  From Gist’s examination of the vaginal specimen taken from the victim’s body he found that spermatozoa had been deposited in her vagina by a secretor with Type B blood.  He also determined that a bloodstain on Coleman’s blue jeans was made by Type O human blood.

Coleman v. Commonwealth, 226 Va. at 38-39, 307 S.E.2d at 867-68. Additional evidence against Coleman is summarized in our opinion affirming his convictions and includes testimony from a fellow inmate that Coleman had “described for him the killing and rape of the victim.”  Id. at 39, 307 S.E.2d at 868.

     Eight years after his conviction, Coleman petitioned the trial court to permit DNA testing of the biological material.  The trial court, over the objection of the Commonwealth, granted Coleman’s petition, but required that a portion of the material be preserved for testing by the Commonwealth.  The tests (“PCR-DNA” testing) were conducted by Dr. Edward T. Blake (“Dr. Blake”), of Forensic Science Associates in Richmond, California.  The test results did not exclude Coleman and 2% of the Caucasian population as the source of the biological material.  The trial court ordered that physical custody of the remaining biological material remain with Dr. Blake until further order of the court.  Later, evidence offered at a hearing on a second petition for habeas corpus in the federal courts utilized the results of the “PCR-DNA” testing and the ABO blood type testing.  The court stated that the “evidence showed that Coleman and the primary donor had ABO blood type B, which occurs in 10% of the population.  When combined with the “PCR-DNA” testing, the ABO narrows the percentage of the population with these characteristics to .2%.”  Coleman v. Thompson, 798 F. Supp. 1209, 1213-14 (W.D. Va. 1992).  The United States District Court for the Western District of Virginia concluded that the additional testing “significantly bolster[s] the jury’s finding of guilt.”  Id. at 1217.

      On July 26, 2000, eight years after Coleman’s execution, Dr. Blake informed the trial court by letter that a more sophisticated testing procedure was available that had been unavailable at the time of the tests conducted in 1990.  According to Dr. Blake, an analysis “on the remaining half of the DNA preparation from the Wanda McCoy vaginal slides could resolve any lingering factual issues concerning the source or sources of the spermatozoa in this case.”

     Subsequently, The Globe Newspaper Company, d/b/a The Boston Globe, The Washington Post, The Virginian-Pilot, and Media General Operations, Inc., d/b/a The Richmond Times-Dispatch (collectively, “the newspapers”) filed petitions in the Circuit Court of Buchanan County, requesting the trial court “to permit testing of certain evidence involved in the case of Commonwealth v. Coleman and for access to the test results.”  The newspapers based their request upon the Virginia Freedom of Information Act (“VFOIA”), recodified in 2001 as Code §§ 2.2-3700 through -3714,[2] the “public’s right to know and the media’s right of access” pursuant to the First Amendment to the United States Constitution (“First Amendment”), Article I, Section 12 of the Constitution of Virginia, and Code § 19.2-270.4.

     The trial court, by order entered September 4, 2001, incorporating its letter opinion of May 31, 2001, denied the petitions holding that the newspapers did not have “standing on the grounds asserted under the First Amendment and Virginia Constitution on which to pursue a cause of action requesting public access to the DNA evidence at issue for the purpose of scientific re-testing.”  Additionally, the trial court held that Code § 2.2-3706(F)(1) provided it with discretion to disclose certain information, but concluded that “it would not be in its sound discretion to order re-testing of the Coleman DNA on the basis of the VFOIA.”  The newspapers appeal the judgment of the trial court.

II. Analysis

     Relying upon the First Amendment and Article I, Section 12 of the Constitution of Virginia, the newspapers maintain that the trial court erred in holding that they had no standing to petition for access to and re-testing of the DNA evidence in question, and in denying their petitions.  Additionally, the newspapers maintain that the trial court erred in failing to exercise its discretion under VFOIA, Code § 2.2-3706(F)(1), because the compelling public interest to know the results of the DNA testing “greatly outweighs” any state interest in preventing the testing.

     The Commonwealth argues that the newspapers are not seeking access to judicial proceedings or documents, but are seeking the ability to conduct scientific testing on evidence from a criminal trial.  Accordingly, the Commonwealth maintains that neither the First Amendment nor Article I, Section 12 of the Constitution of Virginia, is applicable to this case.  Among other arguments, the Commonwealth asserts that the biological material at issue in this case does not constitute “public records” under VFOIA.  We agree with the Commonwealth.

A.  First Amendment and Virginia Constitutional Claims

The trial court and the parties have framed the constitutional questions in terms of “standing.”  Unfortunately, that analysis is not helpful in the present case and context.  The Commonwealth and the newspapers agree that the press has a right of “access” to criminal trials under the First Amendment and Article I, Section 12 of the Constitution of Virginia.  This controversy is about the definitional reach of the concept of “access.” 

     The right of access to judicial proceedings and records is well-established.  In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980), the Supreme Court of the United States held that the public’s right to attend criminal trials was “implicit in the guarantees of the First Amendment.”  Similarly, in Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 585, 281 S.E.2d 915, 921 (1981) (quoting Richmond Newspapers, Inc., 448 U.S. at 581), relying upon Article I, Section 12 of the Constitution of Virginia, we held that “[a]bsent an overriding interest . . . [pretrial hearings] must be open to the public.”   The press does not have a right of access greater than the public at large under the First Amendment, Nixon v. Warner Communications, Inc., 435 U.S. 589, 609 (1978), or under Article I, Section 12 of the Constitution of Virginia.  The right of access is not limited to attendance at criminal proceedings.  Under certain circumstances and with qualifications, it extends to inspection of documents filed in connection with such proceedings.  In re Washington Post Co. v. Soussoudis, 807 F.2d 383, 390 (4th Cir. 1986).

     None of the proceedings in the criminal case against Roger Keith Coleman was closed to the public or the press.  No one has suggested that access to evidence presented at trial or post-trial proceedings has been denied.  As the term has been used in every case cited to us by the newspapers, “access” has not been denied.  What the newspapers seek to do in this case is expand the definition of “access” to include the right to conduct independent testing of evidence in criminal proceedings.[3]  The newspapers have been given access to the DNA test results from the post-trial proceedings.  What the newspapers want is the ability to cause the biological material to be re-tested and generate a new scientific report, thereby altering, manipulating, and/or destroying existing evidence in order to create new evidence.  Historically, the constitutional right of the public and the press to have access to criminal proceedings has applied to hearings and trials and inspection of documents and records that have been introduced at such proceedings.  Here, the newspapers seek “access” to something that does not exist, namely, new evidence in the form of new test results.  No appellate decision of any court, state or federal, is cited by the newspapers in support of such a novel extension of the concept of access.

     The newspapers urge this Court to employ the test articulated in Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).  In Press-Enterprise Co., the Supreme Court considered the exclusion of the public and press from a preliminary hearing in a criminal case and the denial of requests for transcripts of the proceedings.  Id.  The Court stated the following:

     In cases dealing with the claim of a First Amendment right of access to criminal proceedings, our decisions have emphasized two complementary considerations.  First, because a “tradition of accessibility implies the favorable judgment of experience,” we have considered whether the place and process have historically been open to the press and general public.

*****

     Second, in this setting the Court has traditionally considered whether public access plays a significant positive role in the functioning of the particular process in question. . . .
 

     . . . If the particular proceeding in question passes these tests of experience and logic, a qualified First Amendment right of public access attaches. . . .  “[T]he presumption may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”

Id. at 8-9 (internal citations omitted).

     It is obvious from the opinion that the definition of “access” does not include the right of the public at large or the press to subject evidence in a criminal case to testing.  Even if the “place and process” language in Press-Enterprise Co. could be stretched to include the right to test the evidence, the newspapers’ argument would fail the subsequent analysis.     Certainly, the right to test evidence in a criminal case has not been historically extended to the press and general public. Indeed, the newspapers concede that except for an isolated trial court decision in Georgia,[4] they know of no case that has ever permitted such testing.

     Additionally, expanding the reach of the right of “access” to include the right of the public and press to test evidence in a criminal trial could not be restricted in any principled way to only cases in which a death sentence has already been imposed.  The practice, if permitted, would logically apply to all criminal proceedings.  It does not take much imagination to envision requests for “access” to test substances alleged to be illegal or weapons alleged to have been used in assaults.  When the items to be tested are limited in quantity or subject to destruction when tested, how would a court supervise such testing?  How would competing claims of rights to “access” be handled when quantity or integrity of the items are an issue?  We have no difficulty concluding that permitting testing of this type would not play  “a significant positive role in the functioning” of the judicial process.

     We conclude that the newspapers have no right under the First Amendment or Article I, Section 12 of the Constitution of Virginia to obtain the biological material in question and subject it to re-testing.

B. Virginia Freedom of Information Act

     The trial court discussed the specific provisions of VFOIA concerning criminal investigations or prosecutions in Code § 2.2-3706(F)(1) in its opinion letter, and stated, “the Court finds that it would not be in its sound discretion to order re-testing of the Coleman DNA on the basis of the VFOIA.”  The trial court also held that the newspapers had no standing to make such a request under the VFOIA.  The Commonwealth argues that the request for testing of the biological material does not involve a “public record.”  We agree with the Commonwealth.

     Under the VFOIA, persons have a right to inspect and copy certain “public records.”  Code § 2.2-3704.  “Public records” are defined in Code § 2.2-3701 as

all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation . . . prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.

Clearly, the biological material recovered on swabs from the vagina of the victim does not meet the test of a “public record.”  Even if it did, the VFOIA allows for inspection and copying, not testing.

     For the reasons stated we will affirm the judgment of the trial court.

Affirmed.

*****