Killing Roger Coleman: habeas, finality, and the innocence gap.

• Author: Pettys, Todd E.

ABSTRACT

For the past fifteen years, the execution of Roger Coleman has served as perhaps the most infamous illustration of the U.S. Supreme Court's determination to help the states achieve finality in their criminal cases. Convicted of rape and murder in 1982, Coleman steadfastly maintained his innocence and drew many supporters to his cause. In its 1991 ruling in Coleman v. Thompson, however, the Court refused to consider the constitutional claims raised in Coleman's habeas petition. The Court ruled that Coleman had forfeited his right to seek habeas relief when, in prior state proceedings, his attorneys mistakenly filed their notice of appeal one day late. Amidst international media attention, Virginia authorities executed Coleman the following year. Faced with continuing controversy about the case, the governor of Virginia ordered new DNA tests in January 2006--tests that confirmed Coleman's guilt and finally brought an end to a story that began with a young woman's death twenty-five years earlier.

In this Article, Professor Pettys argues that there are important lessons to be learned from the fact that finality was not achieved in Coleman 's case until long after the Supreme Court declared the case closed. Although finality is a worthy goal, the Court has failed to account for the fact that finality is exceptionally elusive when the public fears that a person facing severe punishment was convicted of a crime he or she did not commit. Although the Court has said it will adjudicate the merits of a procedurally flawed habeas petition when a prisoner makes a persuasive showing of innocence, Professor Pettys argues that the Court's habeas jurisprudence suffers from an "innocence gap "--a gap between the amount of exculpatory evidence sufficient to thwart finality and the amount of exculpatory evidence sufficient to persuade a federal court to forgive a prisoner's procedural mistakes and adjudicate the merits of his or her constitutional claims. Professor Pettys concludes by arguing that Congress is harmfully widening that gap even further.

TABLE OF CONTENTS INTRODUCTION I. TRIAL IN GRUNDY II. QUESTIONING THE EVIDENCE, CLOSING THE COURTS A. The Case for Coleman's Innocence B. The Consequences of Appealing One Day Late III. THE ILLUSION OF FINALITY IN CASES OF SUSPECTED INNOCENCE A. The New Emphasis on Finality B. The Innocence Gap 1. The Elusiveness of Finality 2. The Poorly Calibrated Miscarriage-of-Justice Exception a. The Court's Original Formulation b. Congress's New Formulation c. Other Problems with Congress's Standard CONCLUSION INTRODUCTION

On May 20, 1992, authorities at Virginia's Greensville Correctional Center executed Roger Keith Coleman. (1) Ten years earlier, a Buchanan County jury had found Coleman guilty of raping and murdering Wanda McCoy, Coleman's sister-in-law. (2) In the years between Coleman's conviction and execution, however, Coleman's attorneys and supporters had galvanized the nation by amassing an impressive body of evidence that raised significant doubts about Coleman's guilt. In its issue dated May 18, 1992, Time magazine placed a photograph of Coleman on its cover with the headline, "This Man Might Be Innocent; This Man Is Due To Die." (3) Newsweek and The New Republic, ABC's Nightline and PrimeTime Live, NBC's Today, CNN's Larry King Live, the Donahue show, the Washington Post, the New York Times, USA Today, and numerous other media outlets featured Coleman's story, as well. (4) Pope John Paul II and thousands of Americans urged Virginia's Governor L. Douglas Wilder to grant Coleman clemency, (5) but Governor Wilder refused, based in part on Coleman's performance on a lie detector test administered the morning of his execution. (6) As the hour of Coleman's death approached, fifty television cameras and more than a dozen satellite trucks, representing at least six different countries, were stationed outside the prison while the Fuji blimp hovered overhead. (7) Having refused to address the merits of Coleman's federal habeas petition in 1991 because of a minor filing error Coleman's attorneys committed, (8) the U.S. Supreme Court declined Coleman's request for a last-minute stay of execution. (9) After Coleman was strapped into the electric chair, he spoke his final words: "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." (10) Coleman was pronounced dead a few minutes later. (11)

In the years following Coleman's execution, many insisted that Virginia had killed an innocent man. Kathleen Behan, one of Coleman's attorneys, predicted that "Roger's innocence [would] be proven" (12) and that "his case [would] be remembered as 'the Dred Scott of death penalty law." (13) Led by James McCloskey, Centurion Ministries worked tirelessly to prove that Coleman had neither raped nor murdered his sister-in-law. (14) John C. Tucker, formerly a criminal defense attorney in Chicago, joined those investigating Coleman's claim of innocence, and in 1997 presented the group's findings in an engaging book titled May God Have Mercy: A True Story of Crime and Punishment. (15) In his book, Tucker presented a painstaking review of the evidence and identified numerous problems with the Commonwealth's case. (16) Following up on rumors that began to circulate even before Coleman was executed, (17) Tucker also presented plausible reasons to suspect that the man responsible for McCoy's death might actually have been one of McCoy's next-door neighbors. (18)

Long after Coleman was killed, Edward Blake a forensic scientist who worked on Coleman's case--kept small samples of semen taken from McCoy's body following her murder. (19) Blake hoped that DNA technology would one day permit a conclusive determination of Coleman's guilt. Once Blake reported in the summer of 2000 that the necessary technology was available, (20) Coleman's supporters and a variety of media organizations tried to persuade Virginia officials to authorize new DNA tests to determine whether Coleman was wrongly convicted. (21) Four newspapers--the Boston Globe, the Washington Post, the Virginian-Pilot, and the Richmond Times-Dispatch--filed a lawsuit seeking to compel the Commonwealth to approve a new round of DNA testing; but the state courts refused, holding that the media had no legal entitlement to have the tests performed. (22) Those desiring the tests then turned their attention to Virginia's Governor Mark Warner, relentlessly urging him to intervene. (23) Shortly before leaving office in early 2006, Governor Warner arranged for the tests to be performed by a DNA laboratory in Toronto. (24) Coleman's supporters were thrilled, convinced that Coleman finally would be vindicated. (25) Critics of capital punishment were equally elated, believing that conclusive proof of Coleman's wrongful execution would greatly bolster their efforts to abolish the death penalty. (26)

On January 12, 2006, Virginia officials announced the results of the DNA tests: the odds that semen found in McCoy's body came from a man other than Coleman were approximately one in nineteen million. (27) Coleman, in other words, was guilty.

Reactions to the DNA test results were immediate and intense. James McCloskey said that the news felt like "a kick in the stomach" (28) and that he was '"mystified' that Coleman had allowed so many people to believe in his innocence." (29) Tom Scott, one of Coleman's prosecutors, told reporters that he was "euphoric" (30) and "felt like the weight of the entire world had been lifted from [his] shoulders." (31) Peter Neufeld, cofounder of the Innocence Project, urged people to remember that confirmation of Coleman's guilt did not mean that all others facing execution were similarly guilty. (32)

This Article relies on the extraordinary story of Roger Coleman's case to draw important lessons about defects in the way that procedurally flawed habeas petitions are adjudicated today. Part I briefly tells the story of Coleman's conviction for the rape and murder of Wanda McCoy. Part II. A describes the evidence that led many to believe Coleman was innocent. Part II.B discusses the Supreme Court's 1991 decision in Coleman v. Thompson, (33) in which the Court seized on a minor procedural mistake made by Coleman's attorneys and used it as an opportunity to overrule Fay v. Noia, (34) the landmark case in which the Warren Court declared that procedural errors inadvertently made during state court proceedings had no bearing on a state prisoner's ability to secure federal habeas relief.

Part III.A places the Court's ruling in Coleman in the context of the Court's overarching campaign to reshape federal habeas law in a manner that emphasizes the importance of achieving finality in criminal cases. Part III.B, the heart of the Article, discusses the near futility of attempting to achieve a genuine sense of finality in criminal cases when the public believes that newly discovered evidence casts doubt on a prisoner's guilt. This Article contends that, when the public feels it has good reason to suspect a prisoner might be innocent, the Court is sorely mistaken in assuming that it can achieve finality by dismissing the prisoner's habeas petition on procedural grounds. Moreover, although the Court has long said it will overlook a prisoner's procedural mistakes if the prisoner can prove by a preponderance of the evidence that he or she is innocent, Coleman's case dramatically reveals that Americans grow deeply uncomfortable about an execution or a term of imprisonment when they are presented with far less exculpatory evidence than would be sufficient to meet the Court's preponderance standard. The Article contends that this is the "innocence gap" found in the United States today--a gap between the amount of exculpatory evidence sufficient to undercut finality by raising postconviction doubts in the mind of the public...