When DNA Meets Death Row, It's the System That's Tested
By Lois Romano; Washington Post Staff Writer
December 12, 2003
Inside a walk-in freezer in a Richmond, Calif., laboratory sits a tiny vial that holds one-fifth of one drop of a 20-year-old sperm sample. It is forensic DNA evidence extracted from the body of a brutally murdered young bride, evidence that no one is permitted by law to touch, evidence that -- if tested -- could determine whether an innocent man was executed in Virginia 11 years ago.
The case of Virginia coal miner Roger Keith Coleman -- put to death for the 1982 murder of his wife's sister, Wanda McCoy -- is one of a handful of death-penalty cases in which DNA evidence still exists in police labs and evidence facilities across the country that could cast doubt on the guilt of men already executed.
Since DNA "fingerprinting" began to revolutionize criminal forensics in the late 1980s with precise identifications, it has freed more than 130 convicts, 12 of whom have walked off death row. But in other cases, prosecutors have successfully blocked the testing of DNA before an execution and then fought posthumous tests just as vigorously.
Now two of those cases are moving toward denouement. In the Coleman case, advocates met recently with a senior aide to Virginia Gov. Mark R. Warner (D), who could order the DNA tested. Warner is seriously considering the request, said Robert Blue, the governor's chief counsel. And last Friday, in the Texas case of Richard Wayne Jones, a judge granted a prosecutor's motion to conclude legal efforts to obtain evidence for testing -- the last barrier stopping the state from destroying the evidence.
"The most critical reason to test these cases is that you can find the person who really committed the crime," said Barry Scheck, co-founder of the Innocence Project at the Benjamin N. Cardozo School of Law, which provides pro bono help to inmates seeking post-conviction DNA testing. "It seems to me the community would have a compelling interest in knowing the truth, and we can learn from the truth."
Scheck points to the Florida case of Frank Lee Smith as the most unsettling example of the relevance of DNA testing. Smith -- black, poor and mentally ill -- was convicted of the 1985 rape and murder of an 8-year-old girl. He died of cancer on death row in 2000, waiting for the DNA testing that exonerated him 11 months later. The results identified a convicted rapist and murderer as the perpetrator.
Prosecutors say that they usually support post-conviction testing if the results could definitively resolve an inmate's guilt or innocence. But a number acknowledge that they remain opposed to what they see as baseless testing, in large part out of concern for the victims' relatives, who have waited years -- sometimes decades -- for closure.
Legal experts say that the costs of testing, which run into thousands of dollars, contribute to the resistance. They also cite a prosecutorial fear that foes of the death penalty are simply trying to undermine the capital-punishment system. John Eastman, a Chapman University law professor, said that post-conviction DNA testing is not always "about a particular guy being innocent, but an effort to open the door to build a case against the death penalty."
In the case of Joseph Roger O'Dell III, executed in Virginia in 1997 for a rape and murder, a prosecuting attorney bluntly argued in court in 1998 that if posthumous DNA results exonerated O'Dell, "it would be shouted from the rooftops that . . . Virginia executed an innocent man." The state prevailed, and the evidence was destroyed.
"There are circumstances where enough is enough after going through 15 years of appeals," said Josh Marquis, an Oregon prosecutor who is co-chairman of the capital litigation committee of the National District Attorneys Association. "At some point there has to be finality. They have no disincentive for stopping. . . . In most of these cases, it's the last-ditch effort, the Hail Mary pass."
Prosecutors and defense lawyers agree that the spate of well-publicized wrongful convictions uncovered by DNA testing has taken its toll on the system. As Attorney General John D. Ashcroft encourages prosecutors to aggressively pursue the death penalty, jurors are showing increasing reluctance to mete it out. A 2001 Bureau of Justice Statistics study shows death sentences are down by half since 1994. Proof that an innocent man has been executed could be a tipping point in this national debate, according to both sides.
"There is no question" that the vindication of an executed man "could have a significant impact on the system," said Richard Dieter, executive director of the Death Penalty Information Center, an anti-death-penalty education organization in Washington. "By putting a human face on a huge mistake, hesitation of the death penalty could turn into opposition -- not because people morally perceive it as wrong but because they would see the system is flawed."
Others, however, believe the impact would be minimal, and a recent survey supports that. A May 2003 Gallup Poll showed that 73 percent of Americans believe that an innocent man has been executed in the past five years -- but the same poll showed that 60 percent of those surveyed believe the punishment is applied fairly.
In four cases of executed men examined by The Washington Post, anti-death-penalty advocacy groups, relatives of the executed, lawyers or the media have tried to have samples tested. In two of the cases, the states thwarted DNA testing before the men were executed. Most recently, the Texas attorney general denied a request from The Post to test evidence in the case of Jones, executed in 2000 for the stabbing murder of a woman he was accused of kidnapping. Also in Texas, defense attorneys continue to try to obtain DNA evidence in the case of Windell Broussard, put to death for killing his estranged wife and stepson. The nonprofit Innocence Project has agreed to handle the testing if they are successful. In the Oklahoma case of Malcolm Rent Johnson, executed for the rape and murder of an elderly woman, the state had tentatively agreed to posthumous testing -- but then federal authorities seized the evidence for another investigation.
More than 30 states have in recent years enacted laws that permit some form of post-conviction DNA testing in the event that evidence -- or technology -- should develop years later that could spare a life. But when Coleman, Broussard, Jones and Johnson were convicted, they were afforded no such guaranteed protections.
'Let Sleeping Dogs Lie'
In the decade that Roger Coleman sat on death row for the 1981 murder of his sister-in-law, he had more public support for his innocence claim than any other condemned man in recent history. Articulate and white, the coal miner from Grundy, Va., had going for him an ingratiating personality as well as a team of high-powered lawyers, an inmate aid organization, a supportive University of Virginia girlfriend and a press corps raising questions about his guilt. Days before his execution, Time magazine asked on its cover, "Must This Man Die?"
But in the end, no amount of public pressure could persuade the courts and the governor of Virginia at the time, L. Douglas Wilder (D), to spare Coleman's life. Coleman was electrocuted on May 20, 1992, after proclaiming, "An innocent man is going to be murdered tonight."
Last year, the Virginia Supreme Court rebuffed a pleading to obtain the sample for posthumous testing from Centurion Ministries, the inmate aid charity, and a group of media organizations, including The Post, ruling that the parties had "no right" to gain access to the sample for testing.
But the matter is not over.
Edward Blake, a forensic scientist hired by the defense in 1990 to do an earlier form of DNA testing, could not at that time eliminate Coleman as the rapist and killer. But with more-advanced technology now at his disposal, Blake holds the small sample in his Forensics Science Associates laboratory freezer in California, refusing to return it to the state for fear it will be destroyed -- but also barred from testing it without a court order.
Although Blake suspects Coleman is guilty based on his earlier work, he is also steadfast in his belief that the public has the right to know the truth. "I'm not anti-death penalty; I'm pro-democracy," he said in an interview. "How can the state take the position that this is not worth inquiring into? Why not find out once and for all?"
Blake also said that because he has not examined the sample in years, he cannot be sure there is enough left to test.
Coleman supporters have long challenged his conviction based on what they say was an implausible timeline and inexperienced trial lawyers. They argue that if he had been everywhere witnesses said he was, Coleman would not have had time to park his truck on the main road, wade through a creek, rape his sister-in-law, cut her throat and get home. He became suspect because of an earlier conviction for sexual assault -- a crime he also denied.
After years of legal maneuvering, Coleman's defense team persuaded a judge in 1990 to allow the semen swab to be tested, over strong objections from the Virginia attorney general. Blake concluded that the semen was consistent with Coleman's, but DNA technology was still in its nascent stages. Blake raised the possibility that two different semen samples may have been present.
When he lost the court battle to have the DNA tested, Jim McCloskey, head of Centurion Ministries, asked Warner to have the sample retested, a decision the governor can make unilaterally.
Tom Scott, a Grundy lawyer who prosecuted Coleman, believes Warner should "let sleeping dogs lie."
"That is not implying that I have any worry that Coleman was wrongly convicted," he said. "What do we do about it in 10 years -- when more sophisticated technology comes up? Do we test it again? When does this Pandora's box stop opening?"
Sharon Paul, Coleman's former girlfriend, lives in Seattle today and has tried to move on with her life. She said she is ambivalent about testing the sample -- but would like to see Coleman's name cleared. She said she has no apprehension about the results.
"I am very secure in my belief that Roger Coleman was innocent," she said. "Any results that offer a different answer will just lead me to conclude mistakes were made."
'Simply Unconscionable'
When Richard Wayne Jones was arrested in 1986 for the kidnapping and stabbing murder of Tammy Livingston in Fort Worth, he and his girlfriend had in their possession the victim's checkbook, bank card and credit cards. His fingerprint was found on the victim's car, and a couple of drops of blood consistent with hers were on his pants.
From the initial investigation, Jones never denied being at the crime scene. But after confessing to the murder, he later recanted. In a goodbye letter to his mother in 1993, after his first execution date had been set, he for the first time accused his sister, Brenda, and a friend of hers, Walt Sellers, of the murder, and claimed to have only helped dispose of the body to help Brenda. He admitted to driving the victim's car and to burning her body to cover up the crime.
Evidence in the case still sits in a Fort Worth police lab, but none of it -- including swabs from Livingston's body and cigarette butts found in her car -- was ever tested for DNA. Jones's defense team asserts that testing would have spared his life by raising a reasonable doubt that he was the murderer. Jones's sister and Sellers were never charged.
"I have no doubt about his version of events. I have no doubt this man did not kill Tammy Livingston," said Tina Francis, an investigator who worked on the case for years. She said she came across numerous people who supported Jones's version of events.
"It's unforgivable that he burned the body -- but he shouldn't have been executed for it. It's still very raw for me."
According to defense lawyers and Francis, Jones grew up in an unstable, poor family in rural Texas and had been in trouble with the law before this arrest. He had an IQ of 67, said Francis, which made him borderline retarded. The defense team was never able to persuade the courts to reopen the case. In a last-ditch effort shortly before his execution -- and immediately afterward -- Jones's attorneys and his two sons unsuccessfully tried to have the DNA tested. The effort was vigorously opposed by the state as a waste of time and resources.
"He always admitted to being present at the crime scene, so the DNA would never exclude him and therefore never exonerate him," said Ann Diamond, a prosecutor in the case, who is seeking the dismissal of the case.
"They found her blood on him. His fingerprint was on the car. He admitted to burning the body. There is no articulated basis, in any way, shape or form, that he could be cleared of this crime. If there were any possibility . . . we would have [tested]. But when we have so many cases, there was no justification to expend public resources."
William Harris, Jones's appellate lawyer, said: "It was simply unconscionable that they would not test the evidence before killing a man."
Jones was executed Aug. 22, 2000. After he died, a member of the defense team secured a DNA sample from Jones's body, which is tucked away in a lockbox in the event the state ever agrees to test the evidence.
In September, the Texas attorney general's office denied a request from The Post for the physical evidence in the case, stating that "tangible physical evidence . . . is not public information." Then, last week, a judge agreed to dismiss all pending claims on the evidence. Jones's attorneys, Greg Westfall and Gerald Staton, did not oppose the prosecutor's motion.
'Wasn't a Choirboy'
In April 1992, a little girl named Toccara Harris lay critically wounded in a Port Arthur, Tex., emergency room, just hours after a brutal stabbing attack that took the lives of her mother and 10-year-old brother.
"Who hurt you?" a police officer asked her.
She was unequivocal in her response: "My stepdaddy," she said. "Windell Broussard."
At that moment, at 8 years old, Toccara became the most compelling witness against the estranged husband of her 28-year-old mother, a witness who the defense argued was far too young to make a definitive identification. The room was dark when the assailant stabbed the family, the lawyers argued. She could see only a man's profile, and furthermore, she was awakened in the middle of the night. How, the lawyers asked, could the child be so sure?
Broussard denied involvement, but prosecutors built a strong case based on his criminal record, his volatile relationship with his wife, Dianna, testimony from an elderly aunt who quoted him as saying he killed someone -- and Toccara's eyewitness account.
Broussard was convicted and sentenced to death. In April 2001, Texas passed emergency legislation to permit post-conviction DNA testing. Within weeks, Broussard's appellate lawyers filed suit in state district court in Beaumont to compel the testing.
"Windell wasn't a choirboy -- you'd never accuse him of singing too loud in church," said Michael Charlton, who filed the lawsuit. "But I believed him. . . . I just liked the guy."
During a hearing on the matter, Judge Charles Carver in Beaumont denied the request to test the scrapings but agreed to order the blood samples from the scene to be tested. A few weeks later, Charlton recalled, the judge changed his mind with no explanation. The lawyer appealed to the Texas Court of Criminal Appeals but was not able to get a stay of execution.
"I don't know what the purpose of DNA testing would be -- for publicity or to find the truth," Jefferson County Assistant District Attorney Ed Shettle said yesterday. "The little girl was an incredible witness."
"Windell maintained his innocence on the gurney," Charlton said.
This month the Innocence Project agreed to test any available DNA, and Charlton continues to press for whatever evidence may remain.
'I'm Going to Heaven'
Oklahoma City public defender Robert Ravitz is not sure to this day whether his client Malcolm Rent Johnson was innocent of the 1981 rape and murder of 76-year-old Ura Alma Thompson. But the defense lawyer is nonetheless certain that Johnson did not get a fair shake from the legal system before he was executed for the crime almost four years ago.
The state's case relied on Johnson's possession of Thompson's personal property, as well as fiber, hair and semen analysis that was later challenged. "Maybe [the state] could have made a case for being in possession of stolen property," Ravitz said. "But I just can't believe in my wildest dreams that a jury, even back then, would give someone the death penalty based on that kind of flimsy evidence."
Johnson maintained his innocence for 18 years. "I'm going to heaven on a midnight train," he told the witnesses to his execution.
Johnson was a young man with a low IQ and a troubled history when he was charged with Thompson's murder. A product of an abusive home life, he had served time for rape, robbery and assault by the time he was 23.
On the day Thompson's body was discovered by her nephew in her Oklahoma City apartment, Johnson was arrested on an unrelated weapons charge. The arresting detective noticed in Johnson's apartment a doll matching a description of one taken from another rape victim. A wider search uncovered a number of items belonging to Thompson -- a ring, a watch, a key to her apartment. Johnson said that he did not know how the items got there, that perhaps his brother brought them.
The forensic evidence presented at Johnson's trial had been handled and tested by now-disgraced police scientist Joyce Gilchrist, whose alleged mishandling of evidence threw the state law enforcement community into turmoil two years ago.
Gilchrist testified that semen samples allowed her to identify the blood type as being the same as Johnson's. She also testified that blue fibers at the apartment matched a shirt of Johnson's, and that the blue dye from the shirt was found on hairs at the scene -- a highly unusual conclusion. It was the first time Gilchrist had testified about fiber. The court denied Johnson's request for funds to hire an expert to refute her testimony.
When questions were raised about Gilchrist's competence after Johnson's execution, a lawyer who never knew Johnson took up his cause. Douglas Parr sued the police for documents and to have tested the semen-stained evidence -- a bedspread, pillowcases and pantyhose.
Two years ago, an internal police memorandum was made public that contradicted Gilchrist's testimony at trial. A new exam of the slides that Gilchrist had said contained sperm showed they contained none -- which a defense expert would likely have caught. "I was very upset," Ravitz said.
A month later, the city attorney agreed to let Parr have the evidence. But before it could be tested, the federal government subpoenaed all the Johnson evidence as part of an investigation into Gilchrist's practices.
Oklahoma Attorney General Drew Edmondson said in an interview this week that he supports testing the evidence but added that he has no doubt that the state executed the right man.
"If we tried this case again today without DNA, you'd still get a conviction." he said. "He was in the vicinity, his blood type was corroborative, her keys were in his apartment, and she's dead."
Edmondson said he has tried unsuccessfully to ascertain whether the federal government has tested the evidence. Prosecutors in the U.S. attorney's office in Oklahoma City declined to say. The truth, one said, will be revealed in time.
Researchers Lucy Shackelford and Alice Crites contributed to this report.