Washington Post

DNA Testing by Media Barred
Va. Justices Deny Access in Case of Executed Man
By Eric M. Weiss;  Washington Post
Saturday, November 2, 2002

The Virginia Supreme Court yesterday refused to allow new DNA testing of evidence left over from the case of executed killer Roger Keith Coleman, ruling that doing so would unduly expand the public's right of access.

A group of newspapers, including The Washington Post, and a New Jersey charity had asked the court to allow them to use new technology to answer lingering questions about Coleman's guilt. They asked for the evidence left from the 1981 rape and murder of Coleman's sister-in-law, Wanda McCoy, so they could perform advanced DNA analysis that was not available before Coleman's execution in 1992.

The state opposed the request, saying that the papers didn't have the legal standing to obtain and analyze the evidence and that new tests would not contribute to public confidence in the application of the death penalty.

The newspapers argued that the public interest in knowing whether Virginia put an innocent man to death greatly outweighed the state's interest in preventing the testing.

"I'm disappointed that the Supreme Court didn't use this opportunity to test this evidence," said Margaret Stone, an attorney for the newspapers. She said the evidence has been preserved in a laboratory setting and would provide a good sample for the most up-to-date DNA analysis.

A lower court had previously rejected the request, finding that the newspapers and the charity did not have standing to make the request. Yesterday's state Supreme Court decision went even further, saying that new testing would venture far beyond what is considered rightful public access in criminal proceedings, perhaps opening the door to testing of other evidence, such as assault weapons or illegal drugs.

"Certainly, the right to test evidence in a criminal case has not been historically extended to the press and general public," Justice Donald W. Lemons wrote for the unanimous court. The testing of the remaining DNA would "generate a new scientific report, thereby altering, manipulating, and/or destroying existing evidence in order to create new evidence," Lemons wrote.

Tim Murtaugh, a spokesman for Attorney General Jerry W. Kilgore (R), applauded the ruling. "The bottom line is that in 1981, Roger Keith Coleman raped and murdered Wanda McCoy," he said. "He was tried, convicted, sentenced and punished. And today the Virginia Supreme Court has spoken."

The Post, together with the Richmond Times-Dispatch, the Virginian-Pilot of Norfolk, the Boston Globe and Centurion Ministries, a New Jersey charity that investigates claims of wrongful convictions, offered to pay for new testing that would compare genetic material found on McCoy's body with Coleman's.

The court also found that the physical evidence in criminal cases is not considered open under state freedom of information laws. "Clearly the biological material recovered on swabs from the . . . victim does not meet the test of a 'public record.' Even if it did, the VFOIA allows for inspection and copying, not testing," the opinion said.

Stone said the court was accurate in saying that allowing the testing would expand First Amendment rights, "but we argued that there would be safeguards and limitations so that the court could deal with problems as they arise."

Coleman, a coal miner from Southwest Virginia, was convicted largely on the basis of hair evidence and a jailhouse informant. Early DNA testing on Coleman in 1990 and 1991 was inconclusive, but strongly suggested he was the killer. And on the morning of his execution, Coleman failed a polygraph test. But he said he had an alibi, and his claims of innocence drew national attention.

In some of his last words, Coleman said, "When my innocence is proven, I hope Americans will realize the injustice of the death penalty as all other civilized countries have."

Virginia judges have rejected similar post-execution requests in the capital cases of Joseph R. O'Dell and Derek R. Barnabei.

More than 100 convicted felons, including six Virginia inmates, were cleared through DNA testing during the past 13 years, according to the New York-based Innocence Project.

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