Will this be the "one" case?

(originally posted on WatchBlog)

Today Virginia Gov. Mark R. Warner ordered that DNA testing be done on evidence that has been stored since 1981 in the case of Roger Keith Coleman. Coleman was executed in 1992 for the rape and murder of his sister in law, Wanda McCoy. While it is obvious those who have fought for years for this testing to happen are attempting to establish proof to demonstrate an innocent man was executed as a way to stop the use of the death penalty, there are other issues this brings to the surface no matter the outcome.

Back in November I wrote an article about Ruben Cantu that focused on that case and some information on inmates in Texas who had proclaimed their innocence right up to the very moment of their execution. Roger Coleman also proclaimed his innocence until the very end, though he ironically failed a polygraph test earlier on the day of his execution.

The State of Virginia has not only fought to keep the DNA testing from happening, but has tried to have this evidence destroyed. They have also attempted to have the law changed so that any remaining DNA evidence from a death penalty case is destroyed once the inmate is executed. Virginia is not alone in this, many states fight this type of situation after a death sentence has been completed. One wonders why this is, you would think if the case was truly that strong that a State would welcome the testing and quickly so that any speculation would end. It is the fear of the unknown, that the State may have very well allowed the excecution of an innocent to happen that helps create this type of response.

Today's Washington Post article points out what a huge impact this one case could have:

Ira Robbins, an American University criminal law professor, said if Coleman is proven innocent it would push many Americans who are unsure about capital punishment to oppose it. But even if the tests prove Coleman was a killer, he said, it could spark testing of more old cases nationwide.

"Lets assume it comes back that he was proved innocent. Here is the case that the death penalty opponents have been looking for for a long time -- that we have executed an innocent person," Robbins said. "It could be the biggest turning point in death penalty abolition."

In 2001, a lawyer with the Virginia attorney general's office told a circuit judge that "Continual reexamination of concluded cases brings about perpetual uncertainty . . . and disparages the entire criminal justice system."

Robbins could be correct but as it presently stands the Court precedence seems to not support the idea of testing after an execution is done. This earlier Washington Post piece concerning the Court refusual to demand the retesting while focused more on the fact that it was a media source that was demanding the retesting makes it clear:

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."

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.

This then of course brings up the motivation of Gov. Mark Warner to even order the testing. The Courts had clearly ruled in favor of the State. Warner leaves office next week and there are rumors that he is considering a Presidential run.

Even in the town of Grundy, where the murder and trial took place there is a difference of opinion on the retesting. Retired Judge Persin, who was the original judge for Coleman's trial on one hand feels "If you're examining it in a vacuum, a new test is a good thing," but he then states:

However, in "every other capital murder case down the road we may be creating an environment where juries may not consider giving the ultimate punishment" in cases where it is deserved, Persin said.

Toying with his glasses which he had set down carefully on the wooden table before him, he said, "It just opens up so many different things that you need to think about."

If this DNA testing shows Coleman was truly guilty it still raises the question should all DNA evidence from convicted inmates be destroyed after their execution? How long is to long?

According to Samuel R. Gross, a professor of law at the University of Michigan, there was another case where DNA evidence in Virginia was asked to be retested:

After Joseph O'Dell was executed in Virginia in 1997, the Catholic Diocese of Richmond, Va., asked for permission to test DNA samples that could determine his innocence or guilt.

The state's objection in O'Dell's case was more to the point than in Coleman's: If the test went badly for the state, prosecutors argued, "it would be shouted from the rooftops that the Commonwealth of Virginia executed an innocent man." The courts ordered the evidence destroyed.

Should the State fear this to the point of preventing the truth to be discovered? Is the mere belief that all of those who were truly innocent are somehow spared the Death Penalty based on a strong enough foundation to continue to deny or destroy evidence that might prove otherwise?

In closing I quote retired Judge Nicholas Persin:

"We're always searching for the truth," he said.

But, he asked, "Is it worth looking at it now for certainty, or is it best left alone? How can I answer that without opening up a whole can of worms?"

"Can I say that something good won't come of this? No. I can't say that. Something good may well come from it."

Yet, "I think you also have to look at the other side of the coin. It may create a lot of pessimism and a lot of second-guessing on the part of jurors even in the really, really bad cases that merit giving the ultimate punishment," he said.

"It's a tough call," Persin said.