Guilt tip: Voters gave DNA a boost

The guilt or innocence of a man executed for murder is less important than adhering to legal niceties, the Virginia Supreme Court declared recently.

Roger Keith Coleman was executed in 1992 by the Commonwealth of Virginia for the 1981 rape and murder of his sister-in-law, Wanda McCoy. The physical evidence, including semen samples, pointed strongly to his guilt. But Coleman staunchly denied that he had murdered McCoy even as he went to his death.

Ten years later, there are much more accurate ways to test biological samples obtained at crime scenes. The most effective new technique involves DNA testing that can identify precisely the person from whom a hair, a spot of blood, a drop of semen, or a clump of skin cells came.

The biological evidence in the Coleman case has been stored at a California testing lab for more than a decade. A group of newspapers, including the The Washington Post and The Boston Globe, sought legal permission to have those samples tested again using the more accurate DNA techniques available today.

This request has been fiercely resisted by Virginia officials, including two attorneys general, who have maintained that criminal proceedings and convictions must have judicial finality. When it comes to executions, the phrase "judicial finality" has a particularly chilling ring.

More is at stake than Coleman's guilt or innocence. Death penalty opponents have yet to find a modern U.S. case in which a demonstrably innocent person has been wrongfully executed. They believe that even one such case would dramatically reduce the American public's consistent support for the death penalty and eventually lead to its abolition.

Death penalty proponents believe (and fear) exactly the same thing.

But despite this larger political battle, state officials have a moral obligation to pursue justice as long as it takes, even beyond the grave. The Virginia Supreme Court's refusal to allow newspapers to test the Coleman DNA samples is probably correct on narrow legal grounds, but the court's decision ignored the larger issue of pursuing justice.

The refusal to use modern DNA testing in the Coleman case is particularly strange in Virginia, since the state has been the leader in using such tests to solve crimes. Since Virginia's DNA database opened for business in 1989, more than 900 crimes in which there were no suspects have been solved by means of DNA tests. In addition, six Virginia inmates have been released on the basis of post-conviction DNA testing. Nationally, 111 inmates have been released based on such tests.

As the case of convicted rapist Benjamin LaGuer shows, however, post-conviction DNA testing doesn't always exonerate; sometimes it proves guilt. The prosecutor in the LaGuer case, instead of fighting against the DNA test, should have been strongly in favor it. If prosecutors truly believe in the guilt of those they convict, they should be eager for the further confirmation of that guilt that DNA testing can provide. It is estimated that inmates who ask for DNA tests are further incriminated by those tests at least 50 percent of the time.

Today 26 states, including Virginia, permit access to post-conviction DNA testing, up from only two in 1999. Post-conviction DNA testing was on Virginia's ballot last week in the form of an amendment to the state constitution. The amendment is supposed to streamline the process whereby convicted felons can seek to use modern DNA testing techniques to prove their innocence.

Virginia voters who, like most other Americans, are appalled at the prospect that an innocent person might rot in prison or, worse, be wrongfully executed passed the ballot initiative handily. The amendment gives Virginia's Supreme Court immediate jurisdiction over petitions for post-conviction DNA testing. Once the justices have this jurisdiction, let us hope they are moved more by the search for justice than by the bureaucratic concerns of prosecutors.

In the meantime, Governor Mark Warner should immediately order that the DNA evidence in the Coleman case be tested. If the state is going to claim the awesome power to execute murderers, it must make every effort to insure that those it kills are in fact guilty.

Charlottesville resident Ronald Bailey is the national science correspondent for Reason, the magazine in which this story originally appeared.