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                Copyright 2001 The Richmond Times Dispatch
                        The Richmond Times Dispatch

                    March 26, 2001, Monday, CITY EDITION

SECTION: AREA/STATE, Pg. A-1

LENGTH: 1459 words

HEADLINE: DNA TESTS NOT LIKELY AFTER AN EXECUTION;
VA. OPPOSING THIRD REQUEST OF ITS KIND

BYLINE: Frank Green; Times-Dispatch Staff Writer; Contact Frank Green at
(804) 649-6340 or fgreen@timesdispatch.com

BODY:

Frank Lee Smith spent 14 years awaiting execution in Florida. Then, in
December, a DNA test cleared him of the 1985 murder of an 8-year-old girl.

Unfortunately for Smith, the state opposed DNA testing until six months
after he died of cancer on death row at age 52. It was the first time in the
country that DNA testing had cleared a dead man of a capital crime.

The state fought testing even though it could have proven him guilty,
erasing all claims of innocence in the rape and beating death of Shandra
Whitehead. Attempts to get post-execution DNA testing in two Virginia cases
have also been strongly and successfully opposed by the state here. And the
Virginia attorney general's office is fighting a third case that will be
argued tomorrow in Grundy.

In the first two cases the Catholic Diocese of Richmond attempted to use a
state law that permits the donation of evidence to a charity. The third case
concerns Roger Keith Coleman who was executed in 1992, after a post-trial
DNA test strongly suggested his guilt.

Four newspapers, including the Richmond Times-Dispatch and The Boston Globe,
and a charity, Centurion Ministries, have argued that public interest and
the right to know warrants additional DNA testing using a technique not
available 10 years ago.

Margaret E. Stone, a Radford lawyer representing the newspapers, argues:
"the implementation of the death penalty is a compelling and legitimate
topic of public debate in 2001. New testing of the DNA evidence cannot help
or hurt Roger Coleman; it cannot help of hurt the attorney general's case
against him.

"It can play an important part in the public discourse on capital
punishment," she wrote to Buchanan County Circuit Court Judge Keary R.
Williams.

"The goal of the newspapers is not to prove Roger Coleman's innocence.
Indeed, it is not the newspapers' goal to prove anything. The newspapers
seek access to the testing in order to provide the people of the
Commonwealth with important information relevant to the death penalty,"
Stone argued.

Capital punishment foes have long held up the Coleman case as one where an
innocent man may have been executed. A new DNA test might answer the
question once and for all.

Apparently the only time a court anywhere in the country has ordered DNA
testing in a case where an execution has already been carried out was last
year in Houston County, Ga.

That testing was requested by the Globe, which argued that there was an
"overriding right to know the result of modern DNA testing on evidence
maintained in a death penalty case." Authorities, however, did not oppose
the Georgia request. Testing results have thus far been inconclusive.

The Virginia attorney general's office has argued, among other things, that
there is no public right to know in the Coleman case since his guilt, they
argue, has been conclusively established.

"There will always be new testing technology and 'newly discovered'
evidence," said David Botkins, spokesman for Attorney General Mark Earley.
"The desire to never have closure on these cases is really an attempt by the
opponents to chip away at the death penalty."

Barry Scheck disagrees.

"I'm consistently amazed that authorities won't go along with it. I'm amazed
by it," said Scheck, a co-founder of the Innocence Project. "The only
explanation that I can think of is just in case the results turn out the way
they don't want them to, they want to avoid embarrassment."

Scheck, who with Peter Neufeld established the Innocence Project to free
innocent inmates through DNA testing, is representing Smith's survivors and
has played a part in attempting to get DNA testing done in the three
Virginia cases.

In Florida, said Scheck, he was able to persuade the prosecutors to go along
with the testing by arguing it was an opportunity to solve a string of
rape/murders that Smith may have committed, or another suspect.

"If there's another person out there committing these crimes we can identify
them and stop them," he said, adding, "it is profoundly in the public
interest to get an answer to these questions."

In Virginia, lawyers have tried to win court permission to test DNA in the
cases of Joseph Roger O'Dell, Derek Rocco Barnabei and Coleman. Each
proclaimed their innocence in their last words before execution.

Botkins said "it's one thing to consider matters on a case-by-case basis, as
technology improves and the governor determines testing is warranted during
the clemency process."

"But to retroactively conduct more DNA testing after every avenue of appeal
has been exhausted and an inmate has been executed, shows disrespect for the
finality of convictions and undermines our criminal justice system," Botkins
said.

Scheck does not buy the argument.

"What would undermine it more - not finding out who really committed the
crime? Particularly if that person will commit other crimes in the future .
. . is that going to help the system?"

Botkins responds that "if Scheck is serious about these claims, he should
take the request to the governor - as he did with Derek Barnabei. The
governor granted that test, and Barnabei failed."

Such a request has been made to Gov. Jim Gilmore, by Centurion Ministries, a
New Jersey charity that helps free innocent inmates from prison. Paul F.
Enzinna, a Washington lawyer representing Centurion, said Gilmore's office
wants to see what the court does before it takes any action.

Gilmore, shortly before Barnabei's execution last year, approved DNA testing
for biological material found under the victim's fingernails. The test
further implicated Barnabei in the crime, showing the DNA was his.

The Catholic Diocese of Richmond sought the DNA in the O'Dell and Barnabei
cases using a state law that permits evidence to be donated to a charity
once it is no longer needed. The requests were turned down and, in the
O'Dell case, the evidence was destroyed by Virginia Beach Circuit Court
order.

Not so in Norfolk, where the Barnabei request was made.

"As long as I am the clerk, we will not destroy any evidence that might be
DNA evidence without a court order," said Albert Teich Jr., clerk of the
Norfolk Circuit Court. "I'm not going to destroy it and it will stay here."

In general, current state law requires circuit courts to keep exhibits in
criminal cases as long as regular appeals are pending.

But that does not include subsequent habeas corpus appeals, which can
stretch on for years following the end of regular appeals. A habeas corpus
appeal is a civil challenge to a criminal conviction or sentence which
alleges a violation of constitutional rights.

Once a case goes through its regular appeals to a conclusion, a mandate is
issued saying there is a final conviction and a clerk can then destroy the
evidence.

And evidence that is not used in court is not necessarily protected at all.
If it is in the custody of police, for example, every police department
property room has its own procedure for keeping and disposing of such
material.

A new law passed in the recent General Assembly says human biological
evidence in a capital case need only be kept by the state's Division of
Forensic Science until the execution has been carried out.

Though Teich has saved the evidence in the Barnabei case, it appears that no
one will be testing it unless Gov. Jim Gilmore agrees to it.

In the Coleman case, the evidence is being held by Edward T. Blake of
Forensic Science Associates of Richmond, Calif., who conducted the 1990
testing.

Last year, The Boston Globe and Centurion Ministries, a New-Jersey based
organization that tries to free inmates it believes to be innocent, asked
Judge Williams for permission to retest the material subjected to DNA
testing in 1990.

The Richmond Times-Dispatch, The Washington Post and The Virginian-Pilot
have joined with the Globe in seeking the new test. The newspapers would
share the cost of the testing and cooperate with the state in determining
the testing facility and procedure.

Citing case law, the attorney general's office wrote Williams that
"regarding the public's 'right to know,' that right 'focuses on the public's
interest in important matters.' "

"Twenty years after the crime and more than eight years after the execution
of the culprit, there simply is no 'important' interest in retesting the
very DNA evidence which already limited the perpetrator to 0.2 percent of
the Caucasian population - including Coleman," the attorney general argued.

Coleman was convicted of capital murder for the March 19, 1981, rape and
murder of his sister-in-law, Wanda McCoy, in Grundy. He was executed on May
20, 1992, the same day he failed a polygraph examination offered by
then-Gov. L. Douglas Wilder.

GRAPHIC: PHOTO

LOAD-DATE: March 28, 2001