Saturday, January 07, 2006

VA Governor orders DNA testing on evidence in death penalty case

Governor Mark Warner of Virginia has ordered the testing of DNA evidence in a crime that resulted in an execution 12 years ago.

::::::::Gov. Mark R. Warner on Thursday ordered DNA evidence retested to determine whether a man convicted of rape and murder was innocent when he was executed in 1992.

If the testing shows Roger Keith Coleman did not rape and kill his sister-in-law in 1981, it will be the first time in the United States a person has been exonerated by scientific testing after his execution, according to death penalty opponents.

This is precisely the moment death-penalty opponents have been waiting for. There has long been contention that a given man excuted for a crime might not have been guilty - that we couldn't prove to a certitude that he actually did the deed. Therefore, they reason, the death penalty should never be applied since we can't "take back" such a decision.

Why now? Why, 12 years after the execution, do we want to re-test the evidence? And what has changed that would make such re-testing relevant? The story quotes the Governor clearly on the change that's occured:

::::::::Warner said he ordered the tests because of technological advances that could provide a level of forensic certainty not available in the 1980s.

"This is an extraordinarily unique circumstance, where technology has advanced significantly and can be applied in the case of someone who consistently maintained his innocence until execution," said Warner, a Democrat who leaves office Jan. 14.

That couldn't get much plainer. The tests are being ordered because there's technology available now that wasn't around then.

The particulars of this case aren't the point I'm trying to make here today. The fact of the matter is that the convicted man maintained his innocence to the end. I do suggest you read the story in full, however, lest you think a man got railroaded into the electric chair. The man in question got a fair trial, numerous appeals, and the benefit of the DNA testing that was around at the time. The argument for his guilt is very compelling.

The issue I have with all of this isn't whether this one man should have been executed. It's the standard to which we hold ourselves to determine the guilt or innocence of people who allegedly committed crimes for which we have no eyewitness. In crimes such as those, we rely on the investigatory skills of our law enforcement agencies to gather the evidence that will support a conclusion that a given person did the deed. If a person had motive, means, and opportunity and lacks a credible alibi for their whereabouts, combined with some kind of credible evidence connecting them to the crime, that's pretty convincing. When the evidence mounts to the point of removing any reasonable doubt, that crosses the threshold we have set for our law enforcement to consider the suspect guilty of the crime alleged. The key term in all that is "reasonable."

The DNA testing Governor Warner is ordering was not available when the crime was committed. The testing that was available was done and suggested further that the right man had been convicted of the crime. Make no mistake, in a crime being investigated today, I advocate strongly that the DNA testing available today be used. There is no excuse for not using the technology we have today to make certain we have the right guy. But the sense I get from the news coverage, from the opinions being expressed is that this will be a referendum on whether the death penalty should be abolished. The argument goes something along the lines of, "if this shows we executed the wrong man, it'll show we can never be 100% certain of guilt and, therefore, should never apply the death penalty." I would submit that this is an unreasonable bar to set.

First, the obvious rejoinder to such an argument is that we're 100% certain of precious little in life. If that's the threshold we must set, then how could we honestly convict someone of anything? Reasonable doubt has been the standard to meet for a good reason - it's the best that can be done. I will also pre-emptively counter those who say that the threshold should move only in "death penalty" cases and ask this: if we sentence a man to life without parole when he's 22 and discover that he was innocent after all when he's 72, have we done less than take his life? Which leads me to my next point.

The underlying reason behind this argument is the ability to "take it back." A man sentenced to life without parole can be released if innocence is determined. A man sentenced to death is, after all, dead. But there are decisions to be made in life and many of those decisions involve crossing a line that cannot be uncrossed. It is the committment to making decisions that have consequences that typify the mature adult. It requires the utmost care to make such decisions and that requires a solid threshold to shoot for when deliberating.

My point is this: decisions must be made in the here and now with the tools and techniques we have. We cannot make allowances for some technology that might come into being 15-20 years from now. We have to make the call as best we can. The death penalty aside, the discovery in the future of new information or new techniques does not invalidate the decisions we make today nor should it. We will make mistakes. We always have and we always will and we need to learn from them to make certain we do better in the future than we have done in the past.

I am looking forward to seeing the results of the tests and will pass this along when I see it.