Must This Man Die?

By Jill Smolowe

"Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream." -- Judge Learned Hand, 1923

HERE IS A STORY AS TWISTED AS THE THIN bands of highway that corduroy the mountainous tip of southwestern Virginia, a remote pocket of mining country where the river runs black with coal dust in the spring. This much can be stated with certainty: on the night of March 10, 1981, in the town of Grundy, a young woman named Wanda Fay McCoy was raped, stabbed twice in the chest and slashed across the neck with such force that the gash, 4 in. wide and 2 in. deep, cut almost to her spinal cord. When her husband Brad returned home, he discovered Wanda lying on the floor in a warm pool of blood. Her cable-knit sweater was hiked up around her neck and her indigo underpants shoved down around her left foot.

The brutality of the murder so stunned the people of Grundy (pop. 1,300) that from that time on, townspeople began to lock their doors at night. No one expected to sleep very well until the murderer was found.

They didn't have to wait long. Grundy police did not initially find any evidence of forced entry into the McCoy house, so they assumed Wanda must have opened the door to her killer. Brad said his shy, reclusive wife, who had been jittery since receiving a series of obscene phone calls the year before, would have opened the door to only three men in town. Police questioned all three and quickly decided on their man: Roger Keith Coleman, then 22, a coal miner married to Wanda's younger sister. Coleman had the misfortune of having a record and lacking a convincing alibi. He had served time from 1977 to 1979 for attempted rape, which helped persuade police that they had found Wanda's killer. A month later, they arrested him. A year later, there was a four-day trial. The evidence -- or lack of it -- raised doubts about his guilt. But after three hours of jury deliberation, Coleman was found guilty of rape and murder, and sentenced to death.

In the decade since then, Coleman has steadfastly maintained his innocence. He has also nearly exhausted his avenues of appeal. Barring a last-minute federal court intervention or a grant of clemency by Virginia Governor Douglas Wilder, Coleman, now 33, will be executed on May 20 by a high-voltage wave of electricity that will wipe out his nervous system, followed by a low-voltage shock designed to finish the job. It is a prospect that Coleman says leaves him "anxious, of course."

His current pro bono attorneys at the high-priced, high-powered Washington firm of Arnold & Porter have waged a canny campaign to draw media attention to Coleman's case. Their efforts, launched in 1984 and now spearheaded by a 28- year-old associate named Kathleen Behan, were given a boost when independent investigator Jim McCloskey turned his attention to Coleman in 1988. McCloskey is renowned for tracking down lost or overlooked evidence that has often led to the freeing of convicted murderers.

If, in essence, Coleman's supporters have sought to stage a new trial through the press, the tactic is understandable: the courts have so far failed Coleman miserably. It is quite possible he will die, the victim of a justice system so bent on streamlining procedures and clearing dockets that the question of whether or not he actually murdered Wanda McCoy has become a subsidiary consideration.

It was never supposed to work this way. Back in 1976 when the Supreme Court reinstated the death penalty, it signaled in a series of decisions that utmost vigilance must be applied in capital cases. The court warned that death is the "most irrevocable of sanctions," and spoke of the "need for reliability in the determination that death is the appropriate punishment." But under Chief Justice William Rehnquist's leadership, the Supreme Court seems more concerned with finality than fairness. Frustrated by the mounds of habeas corpus petitions that clog federal dockets -- Coleman's current petition, which includes the Commonwealth of Virginia's rebuttal, is more than 4 1/2 in. thick -- the court has sharply curtailed the ability of state prisoners, including capital felons, to approach federal courts with challenges to their convictions or sentences. "It is not clear to me what, if anything, will allow you to have a hearing in federal court as a matter of right," says Bryan Stevenson, director of Alabama's Capital Representation Resource Center.

The fact that federal judges have found constitutional errors in about 40% of the death penalty cases they have reviewed since 1976 does not seem to faze the Supreme Court. Instead the court's insistent message is that defendants are represented adequately in the state courts, so federal appeals are unnecessarily redundant. In last week's habeas corpus decision, for instance, Justice Byron White wrote, "It is hardly a good use of scarce judicial resources to duplicate fact finding in federal court merely because a petitioner has negligently failed to take advantage of opportunities in state- court proceedings."

Lawyers who know their way around death row argue that such an opinion could only have been written by someone seriously out of touch with the way justice is served up at the state level. Often those most in need of help -- the poorest and the least educated -- get the shoddiest representation. They may be defended by court-appointed lawyers who are either young and inexperienced or old and broken down; either way, these attorneys rarely have experience with the intricacies of habeas law -- perhaps the most complex part of criminal procedure. Where once the Supreme Court protected defendants from dumb or lazy lawyers, now defendants pay the price for their attorneys' mistakes. "It means," says Esther Lardent, director of the American Bar Association's Post-Conviction Death Penalty Representation Project, "the worse someone's trial lawyer is, the less likely they are to get review."

Roger Keith Coleman's case is filled with the kinds of errors that make federal review so vital. There is an allegation that Coleman's trial may have been tainted by a biased juror; that his lawyers made some major blunders; that another man may have committed the crime. But tidy procedural obstacles have blocked Coleman's attempts to obtain a federal evidentiary hearing. With the clock ticking toward his execution, it is reasonable to ask: Just what does it take to get a reconsideration of a conviction that brings a sentence of death?

Coleman is not on death row because some witness claimed to see him murder Wanda McCoy. Or because someone saw him enter her house. Or because his fingerprints were found in the house, on her body or on a murder weapon. He is not even in trouble because someone offered a plausible motive for Coleman's wanting his sister-in-law dead. The case against Coleman is built solely on circumstantial evidence: bits of hair, blood, semen that may be his, but then again may not.

Coleman sympathizers find this evidence pretty thin; detractors think it is solid. "I'm not only convinced beyond a reasonable doubt," says Tom Scott, a Grundy attorney who acted as a special prosecutor during Coleman's trial. "I'm convinced beyond every imaginable and conceivable doubt of Coleman's guilt, based on that evidence alone."

It was not as though he had no alibi at all. At the trial, six witnesses vouched for Coleman's movements the night of the murder. He went to a grocery to buy some antacid pills; he reported for work at a coal mine, only to learn that the night shift had been laid off; he picked up his work clothes at the mine, then stopped to chat with a friend; he visited another friend in a trailer park; he went home to his wife. Important testimony came from Philip Vandyke, a friend of Coleman's, who could point to the precise time of their conversation because at its conclusion he punched a time clock. Although Vandyke had no apparent motive to lie on Coleman's behalf and risk being charged with perjury, the prosecution apparently persuaded the jury to disregard his testimony.

In so doing, it opened up a 30-minute gap in Coleman's account. During that time, prosecutors argued, Coleman parked his truck, waded across a creek, climbed a hill the length of three football fields, raped Wanda twice, slit / her throat, then escaped unseen. The prosecutors offered no eyewitnesses and little proof to support this scenario. In a sense, the most important clues in this case may be the ones that were missing. Given the haste with which Coleman would have had to act, he might have been expected to leave telling signs behind. A fingerprint. A footprint. At the very least, there should have been traces of the mud and water that would have clung to his pants after fording waters 10-in. deep. No such evidence was offered.

Absent a motive, murder weapon or witness, the prosecution's case rested on three pieces of evidence. A forensic test demonstrated that one of two types of sperm found on the victim -- the other sperm, the prosecution argued, was that of her husband -- belonged to someone who was a blood type B secretor, meaning that the blood type can be determined by samples of any bodily fluid. Coleman matched the description -- but since roughly 10% of Grundy's population has type B blood, it is likely that others in the town fit the bill. The prosecution also produced brown hairs the same color as Coleman's, lifted from Wanda's red pubic hair. But other hairs picked up when police vacuumed the McCoy's home the night of the murder did not match Coleman's.

A jailhouse snitch named Roger Matney testified that while sharing a cell with Coleman before the trial, Coleman stated that he and another man raped Wanda, then the other man killed her. After offering up this story a year later at Coleman's trial, Matney was released from serving the remainder of four concurrent four-year prison sentences. Later Matney's mother-in-law claimed that he had admitted to making it all up, which he in turn denied.

An experienced defense team might have poked holes through the prosecution's case. But Coleman was a poor coal miner, with no spare cash to hire an attorney. His court-appointed lawyer, Terry Jordan, was just two years out of law school and had tried only one murder case. In Bartleby fashion, Jordan told the judge at the outset that he would "prefer not to" handle the case. It is interesting to note that according to Matney's arrest records, a Terry Jordan represented Matney in an assault and battery hearing scheduled for May 29, 1981; that is the same day that Matney gave his statement about Coleman's alleged jailhouse "confession" to the police.

Coleman asserts in his pending appeal that his initial legal representation was woefully inadequate. His court papers contend that the ensuing $ investigation of the facts was so bare bones that neither Jordan nor his other assigned attorney, Steve Arey, ever retraced Coleman's steps the night of the murder to clock his movements or search for witnesses. They never went inside the McCoy or Coleman houses. They never measured the creek to see if the water marks on Coleman's pants matched the water level of the creek.

Much of the evidence that might have vindicated Coleman has still never been heard in court. Because rumors about the murder were plentiful and pretty much everyone knew about Coleman's prior conviction, his lawyers petitioned for a change of venue. But Arey did not show up for the motion, leaving the argument to Jordan, whom Coleman charges with inadequate preparation. The case remained in Grundy, the seat of Buchanan County. After the trial, one of Coleman's appeals would be based on a report that a juror had allegedly announced that he hoped to be seated on the jury so he could "burn the s.o.b." The juror has denied making the statement.

Most shocking is the evidence the defense never presented. A few days after the murder, Keester Shortridge, who lived near the McCoys, found in the back of his truck a plastic bag stuffed with blood-soaked lilac sheets, two Van Heusen cowboy shirts and a pair of scissors. Instead of calling the police, Shortridge buried the bag in a landfill. A few weeks ago, Jordan signed an affidavit stating that he too knew about Shortridge's discovery of the sheets prior to the trial. "I considered the information useless," he stated. Under the Supreme Court's current interpretation of habeas corpus law, that admission ensures that any higher court will find the information useless as well. But it might have been useful to Roger Coleman.

Then there is the matter of Coleman's clothes. Prosecutors have never doubted that the bag of clothing Coleman surrendered to the police the day after the murder contained the same items he wore the night Wanda was slain. Indeed, during the trial the prosecutors made much of three droplets of blood that matched Wanda's type O blood on the left leg of the blue jeans.

The defense team could have made more of those same clothes, but didn't. Given the gory nature of the killing, Coleman's clothes should have been splattered with blood. They weren't. Given his need to get out of the McCoy house -- by the prosecution's own scenario, Coleman showered later, not at the McCoy's -- there should have been traces of semen in his underwear and on his wash cloth. There weren't. The prosecution claimed that Coleman waded through a 10-in.-deep creek, a charge it supported by pointing out that the legs of his jeans were wet. But, observes Coleman's uncle, disabled coal miner Roger Lee Coleman, "his long underwear wasn't wet; his socks wasn't wet; the inside of his boots wasn't wet either."

The lawyers also never raised the issue of the blackish-red soil found on Wanda's hands and extending up the sleeves of her sweater, or of her broken fingernails, which were caked with soil. Such details suggest a struggle that might have taken place outdoors. Coleman had no scratches on him; neither did any of the other people questioned immediately after the murder.

These are the sorts of considerations that Coleman might have raised on appeal. But during his first habeas appeal, a pair of pro bono lawyers from Arnold & Porter argued primarily that there was insufficient proof of his guilt. Since then, court after court has rejected Coleman's arguments, maintaining that such details should have been presented in the first appeal. A year ago, the U.S. Supreme Court ruled against his petition for an evidentiary hearing because the Washington lawyers filed papers a day too late. "Coleman might very well be innocent, yet the Supreme Court has used this arbitrary rule that he can't take advantage of habeas corpus just because it wasn't technically filed correctly," says Democratic Representative Don Edwards, chairman of the House judiciary subcommittee on civil and constitutional rights. "That is really shocking."

All Coleman has left to argue is his "actual innocence." It is the one legal path -- albeit a narrow one -- that might enable him to circumvent the habeas corpus guidelines that now essentially restrict capital felons to a single federal appeal. Kathleen Behan, his new attorney, has been relentless in developing the innocence argument. She has made more than a dozen trips to Grundy to uncover new evidence and enlist further support. A few months ago, she rented a backhoe to dig up the landfill where Keester Shortridge said he dumped the bloody sheets. For her effort, she was rewarded with a 1-ft. by 2- ft. swatch of the sheet. She has not only lobbied the press for coverage, but has waged a letter-writing campaign to Virginia lawyers, entreating them to write to Governor Wilder and ask for clemency on Coleman's behalf.

This final habeas corpus appeal offers seven reasons why Coleman should be granted an evidentiary hearing that will enable him to prove his innocence. Behan believes that she has "overwhelming" evidence someone else killed Wanda and that if a hearing is granted, her evidence of Coleman's innocence will prevail. Her fear is that she will never be able to make the case. "I think we're going to run out of time," she says, "and that's what's so frustrating." As of late last week, a federal district judge had not yet ruled on Coleman's petition. If Coleman loses his appeal, he can take it to the U.S. Court of Appeals for the Fourth Circuit, then to the Supreme Court. These days that final trip hardly seems worth the effort.

There is one other remote possibility. At present, claims of innocence based on new evidence that raise no constitutional violation are not reviewable in habeas corpus proceedings. A Texas case pending before the Supreme Court, Herrera v. Collins, seeks to establish a constitutional connection: that carrying out executions in the face of unexamined new evidence is cruel and unusual punishment, in violation of the Eighth Amendment. It is a longshot gamble that the decision will go in Herrera's favor; it is an even longer shot that the decision will come down in time for Coleman to use that argument.

Given the hostility of the federal courts to multiple petitions, Coleman's lawyers might do better to train their sights on the clemency hearing. Governor Wilder, a former defense attorney, may be willing to listen where the courts are not. Beyond the discarded sheets and the condition of Coleman's clothing, there are other points that raise a reasonable doubt:

-- In late 1991 Grundy resident Teresa Horn signed an affidavit swearing that another man in the county had confessed to Wanda's murder. Last March, Horn voiced her charges in an interview on a Roanoke TV station; the next day she was found dead. The circumstances have yet to be explained convincingly. Over the past three weeks, four more witnesses came forward, all with stories pointing to the same man. He denies the allegations.

-- Coleman was arrested on the police theory that Wanda opened the door to the intruder. Police subsequently discovered a pry mark on the door molding, just 3 in. up from the floor, and a fingerprint. Plainly, if tests had identified the fingerprint as belonging to Coleman, the jury would have heard.

-- The jailhouse snitch's version of Coleman's "confession" put another man on the murder scene. Other evidence -- including inconclusive traces of sodomy ) -- supports the possibility that two men were involved. Under Virginia's "triggerman" statute, a defendant can be executed only if he is the one who actually killed the victim. Even if Coleman was one of the two culprits, there is a question whether he was the murderer.

-- Frank Hinkle, the police deputy who had been assigned to trail Coleman right after the murder, swore two months ago in an affidavit, "I believe that the principal reason for Mr. Coleman's arrest and trial was to reassure the community that a perpetrator had been found." Hinkle was never summoned as a defense witness.

Coleman may yet be spared. After all, he has McCloskey, one of the nation's most prominent investigators, in his corner. He has a determined, active team of lawyers who have the experience and funds to pursue every possible lead. His clemency petition will be heard by a Governor who is not up for re- election and can therefore be guided by moral considerations without having to worry about political consequences.

As the clock ticks, the biggest consideration may be this: With so many questions still outstanding, what's the big rush to end Coleman's life? Yes, 10 years is a long time for a prisoner to sit on death row. But additional time is not too much to ask if there is a reasonable doubt that he is guilty. Coleman's uncle says, "I'm for capital punishment, but I believe you ought to have the right person involved." It seems a reasonable standard.

With reporting by Julie Johnson/Grundy