Law & Disorder

by Douglas, John

  At 11:38 P.M., Roger Keith Coleman was pronounced dead.

  By the next day, the first two sentences of his final statement had been spread around the world. Now, whether you’re for, undecided or against the death penalty, those words are pretty sobering. Culturally and legally, we tend to give special weight and respect to last words. A “dying declaration” is even generally given a special exception to federal and state rules against hearsay testimony. It has been a long-standing feeling, again going back to the origins of English common law, that individuals who are preparing to meet their Maker, and have nothing more to gain or lose in this earthly life, have no reason to lie and have significant reason to tell the truth.

  In fact, when Mark Olshaker and I were investigating the infamous 1932 Lindbergh kidnapping for our book The Cases That Haunt Us, the one element that continued to perplex us was that even as he faced the New Jersey electric chair, Bruno Richard Hauptmann refused to confess to the abduction and murder of baby Charlie Lindbergh Jr. or even admit any degree of participation. We had determined beyond any reasonable shadow of a doubt that Hauptmann had to have been involved in the crime; though unlike many of the others who have examined this notorious case over the years, we were convinced he could not have acted alone. Yet, even when he was offered the possibility of a commutation of his sentence from death to life in prison if he would only cooperate and name other names, he continued to maintain his innocence and that he knew nothing about the crime. He went to his execution steadfastly maintaining this stance.

  As we carefully constructed Hauptmann’s behavioral profile, we concluded that his motivation lay in his personal rigidity and conception of honor. Hauptmann was prepared to die rather than live and leave his family, his wife and young son, with the shame (and, perhaps, attendant financial burden) of a confessed killer.

  Roger Coleman had no such incentive or choice to make. He wasn’t going to be plea-bargained or have his death sentence commuted for “telling the truth.” He had been baptized while in prison and his chaplain said he took his faith seriously, so his final statement was extremely troubling to anyone who cares about justice.

  The controversy did not die with Coleman. “I promised Roger Coleman the night he was executed, I would do all within my power to prove that he was innocent,” McCloskey announced. “Those were my last words to a dying man.”

  He was as good as his word. He had investigated claims that another man in Grundy had admitted killing Wanda McCoy and pressed to have the remaining fluid samples retested, now that DNA technology had made significant advances. The office of Virginia attorney general (AG) Jerry Kilgore steadfastly resisted.

  “The state keeps telling the citizens that we need the death penalty and that we’re doing it right,” a spokesman for Centurion Ministries stated. “The public has a right to know if the state is doing it right.”

  Kilgore countered that the case had been through the courts for more than a decade and that the “doctrine of finality” dictates that at some point the process has to finish. “We have to someday look to finality of judgment. We feel certain in Virginia that Roger Coleman committed the crime and was punished appropriately.”

  Centurion, joined by four newspapers, including the Washington Post, petitioned the Virginia Supreme Court to have the DNA evidence retested. It took more than a year for the court to respond with a denial. They then went to Governor Mark Warner for an executive order. Warner, another pro–death penalty Democrat, also didn’t respond right away, but there is strong indication that he had his lawyers look seriously into the matter.

  By now, the Coleman case had become a focal point for the ethical and legal struggle over capital punishment, and his ghost haunted the public debate. Abolitionists felt that if they could just get tangible proof that one innocent person had been executed, the entire moral fabric of the argument for execution would be ripped to shreds.

  Finally, on January 6, 2006, as Warner was preparing to leave office (Virginia governors are limited to one term), he announced that he had ordered the retesting of the McCoy murder fluid samples. It’s unclear whether he had bowed to public pressure or genuinely wanted to know once and for all if Virginia might have carried out a horrible miscarriage of justice. The simplest and most heartfelt explanation is probably the one he gave to Anthony Brooks, of National Public Radio (NPR): “You know, if we have access to the truth, let’s figure it out. Let’s find out what the truth is, one way or the other.”

  Though both sides claimed to be confident of the outcome, this was certainly a nervous period all around.

  For me, too. Around this time—the mid-2000s—Mark Olshaker and I were both doing a lot of speaking about victims’ rights and our feeling that the humanity of individual victims was being overshadowed by emphasis on the rights of convicted offenders, particularly those convicted of murder. This was also a time of heated debate over capital punishment, which I support for certain situations and types of offenders.

  I got a request to speak at Vanderbilt University in Nashville, Tennessee. They had been running a series of forums on the death penalty, and they wanted to feature me in one. Scott Turow, the distinguished novelist, attorney and former prosecutor from Chicago, had already appeared. After serving on a blue-ribbon Illinois State commission on the death penalty, and after much analysis, introspection and soul-searching, Turow had concluded that there was no effective way to make the prospect of execution fair, bias free, evenly administered, as well as compellingly foolproof.

  Now, I happen to disagree with Turow on some of his conclusions, though there is no denying that he ranks as one of the most thoughtful, rational and articulate voices on the subject. I knew he would have given a stirring and inspiring presentation from his perspective; and though I figured a university atmosphere would not be a particularly welcoming place for mine, I thought they ought to hear the other side.

  But the timing couldn’t have been worse. I’m going down there to talk about the death penalty and here’s the case that’s going to prove that an innocent man was executed! I thought long and hard about whether I should go through with the talk.

  The samples were analyzed in two sets of procedures several weeks apart by the Centre of Forensic Sciences, a distinguished lab in Ontario, Canada, that handles thousands of cases a year. On January 12, 2006, Warner’s office announced the results of its findings: Roger Coleman’s DNA matched the sample material taken from Wanda McCoy’s body with no exclusions. The chance of the attacker being someone other than Coleman—in other words, another intruder whose DNA just happened to match Coleman’s—was one in 19 million.

  We have sought the truth using DNA technology not available at the time the commonwealth carried out the ultimate criminal sanction, Warner’s statement read. The confirmation that Roger Coleman’s DNA was present reaffirms the verdict and the sanction. Again, my prayers are with the family of Wanda McCoy at this time.

  Which was exactly where they should have been.

  Reaction was nearly instantaneous. “How can somebody, with such equanimity, such dignity, such quiet confidence, make those final words even though he was guilty?” the Washington Post quoted a betrayed Jim McCloskey as saying.

  Stop the presses—it turns out that rapists and killers are also liars, wrote Michael Paranzino, a Yale–and NYU Law–trained attorney and former Congressional staffer who founded the organization Throw Away the Key.

  “Quite frankly, I feel like the weight of the world has been lifted off my shoulders,” said lead prosecutor Thomas Scott. “You can imagine, had it turned out differently, we certainly would have been scapegoats.”

  Later, with great dignity and eloquence, McCloskey told NPR’s Anthony Brooks, “This is a very . . . a bitter pill for me to swallow. However, the truth is the truth. We who seek the truth, especially in criminal justice matters, must live or die by the sword of DNA.”

  What are the lessons of the Roger Coleman case? There should be several. Despite the truism that all
of us, under certain sets of circumstances, are capable of killing, I would submit that most of us are not capable of murder. That is: Murderers, particularly predatory murderers who force sex and intentionally inflict pain with their acts, are not like us, and it’s about time we understand that. We can’t imagine ourselves lying about something morally important even if the honesty would go against us. Most of us parents have had the experience of punishing a child more severely for lying than for the initial misbehavior he or she lied about. Truth is that sacred to most of us, at least as a concept.

  When I see someone passionately proclaiming his innocence, unrelentingly for years and years, even with all of my experience, my first and most human instinct is to think that he must be telling the truth. We project ourselves and our own sensibilities onto this person. Even if we believe he might have done something wrong or illegal, we like to think that it was some sort of aberration, rather than a deep-seated behavior. It’s one of the reasons why good and decent people, like Jim McCloskey, can be taken in by bad and devious people, like Roger Coleman. It’s one of the reasons we like to believe that repeat predators can be rehabilitated. And in my opinion, it’s one of the reasons for the phenomenon of otherwise intelligent women falling in love with prison inmates.

  But what Mr. Paranzino says is actually pretty close to reality. Individuals who are willing to cause extreme harm and suffering to others are, by definition, sociopaths; they have no conscience. Truth is no more important to them than adhering to the law and the decent instincts of ordinary human beings.

  So how do we know whether a convicted killer insisting on his innocence is more like William Heirens or more like Bruno Richard Hauptmann and Roger Keith Coleman?

  There is no foolproof way. As we say rather too glibly sometimes, criminology is not an exact science. But there are often strong clues, just as there were in each of these three cases.

  With William Heirens, there was no previous instance of violence, particularly violence against women, so our experience and research show that it would be essentially unheard of for him to have quickly escalated from petty breaking-and-entering crimes into violent sexual assault, murder and dismemberment of a child. True, he did carry a gun, but the only time he ever attempted to use it was in the heat of the moment as he was being pursued. This doesn’t make it right, and might have made him a setup for a felony murder rap, had his burglaries gone unstopped, but there is nothing in his background that suggested intentional and premeditated violence against women. We could say something similar about David Vasquez. Had all of this been factored in during the investigation, police would have come up with a radically different suspect than Heirens.

  Bruno Richard Hauptmann, who, like Roger Keith Coleman, went to his highly publicized death asserting his innocence, was a carpenter with a record that fit right in with the type of crime of which he was convicted, including a series of armed robberies and burglaries in his native Germany involving a homemade ladder (the single key piece of evidence in the Lindbergh case). Together with the overwhelming amount of circumstantial evidence and an entire string of provable lies to the police, he was a poor prospect for veracity.

  Roger Coleman, of course, had a prior conviction for violent sexual assault and the exposure charge, both of which he claimed were cases of mistaken identity. Without those priors, one might have looked more skeptically at the inconsistencies in the evidence. But without those priors, he probably wouldn’t have evolved far enough to kill his sister-in-law so brutally.

  As William Shakespeare wrote in The Tempest, “What’s past is prologue.”

  The other thing we should learn from this case is to give scientific evidence its due—no more, no less.

  These days, prosecutors worry about “the CSI Effect” on juries: the perception popular television shows have instilled in the public that all murders or other violent crimes can be solved through scientific analysis of blood and other fluids, fingerprints, hair and fiber, etc., all routinely found at the crime scene. The fact is that most scenes do not render up a cornucopia of definitive physical evidence directly linking the UNSUB; and absence of evidence, as we say, is not evidence of absence. So we need to be realistic about our expectations.

  The judges in the Salem Witch Trials thought they had good spectral evidence until Cotton Mather and others pointed out that Satan himself could have been the cause of various townspeople’s shapes appearing to the afflicted girls.

  But in this age of increasingly scientific and technological sophistication, when we do have apparent definitive evidence, it is incumbent on us to use it well. After all these years, for example, I still don’t see how the jurors in the trial of O.J. Simpson for the murder of his ex-wife Nicole Brown and Ron Goldman could have interpreted the evidence as they did. They ignored the DNA lab work, which put the defendant unquestionably at, and in, the murder scene, while at the same time setting great store in the idea that a leather glove soaked with the victims’ blood did not seem to fit Simpson’s hand. One piece of evidence was absolute and incontrovertible. The other was subject to any number of variables, including the well-known fact (at least in climes less temperate than Southern California) that leather can shrink when it gets wet, whether with water or blood! Maybe we haven’t come as far from the reasoning and thought processes of Salem as we might have hoped.

  At the time of the Coleman trial, blood science could only narrow the evidence to a relatively small percentage of the population. But now, if we do have a sample, and it is untainted from harvesting, with a clear chain of custody, it can tell us a lot about the crime and help determine guilt or innocence. I very much agree with former governor Mark Warner. If we have the evidence, we should not be afraid to employ it, and let the chips fall where they may.

  If you’re going to consider taking someone’s life for a crime, or even putting him away for the rest of it, you’d better be pretty damn sure you’ve got the right individual. Fortunately, science is helping us with this effort.

  Had the evidence gone in Roger Coleman’s favor, it might have galvanized the anti–capital punishment ranks and made him a martyr for the cause, instead of what he turned out to be: a lying, violent, sadistic murderer for whom none of us need contribute an ounce of sympathy. On this case, at least, we can have the certainty that is so often elusive, and the victim’s family can finally have a measure of peace.

  But this is not the end of the argument.

  “The results in this case won’t end the debate over the death penalty,” declared Paul Enzinna, an attorney with the prominent international law firm Baker Botts, when the DNA findings on Coleman were announced.

  And indeed, they have not. Nor should they, any more than they should end the continual quest for a better quality of justice.

  CHAPTER 4

  THE FIRE ON WEST ELEVENTH STREET

  Roger Keith Coleman, of Grundy, Virginia, didn’t turn out to be the poster boy that death penalty opponents have sought for more than three decades. But Cameron Todd Willingham, of Corsicana, Texas, may turn out to be.

  The Coleman and Willingham cases share a number of elements. Both men came from working-class backgrounds and grew up in small towns that had seen better days. Both were personable and good-looking, passionate and articulate, despite not having much education. Both married young. Both were quickly arrested for murder and tried in a matter of days. Both had jailhouse snitches testify that they had confessed to the crime in casual conversation. Both were convicted in a matter of hours, and then spent long years on death row. Both went to their executions proclaiming their innocence and attracted a large community of believers. And both cases, to most reasonable observers, were ultimately resolved by science.

  Like Coleman, the Willingham case attracted national attention—first through an outstanding and award-winning article, “Trial by Fire,” by David Grann, in the September 7, 2009, issue of The New Yorker, and the following year in the PBS Frontline episode “Death by Fire,” by producer-directo
r Jessie Deeter and writer-producers Mike Wiser and Michael Kirk, broadcast on October 19, 2010.

  But these similarities are overwhelmed by one glaring difference, as we will see here.

  Cameron Todd Willingham, who was known as Todd, had a tough time from the start. He was born in 1968 in Ardmore, in south central Oklahoma, and was abandoned by his divorced mother while he was still a baby. He was raised by his tough, demanding, ex–U.S. Marine father, Gene, who worked in a salvage yard, and his stepmother, Eugenia, whom he adored. He was never much for school, and discovered paint sniffing and drugs when he was eleven. His half brother, Monte, felt he never got much past that age emotionally or intellectually. He dropped out of high school and racked up a record for drunk driving and petty theft.

  In 1988, Todd met Stacy Kuykendall, a high-school senior from Corsicana, Texas, a small town about fifty-five miles southeast of Dallas, and moved there with her. Stacy had also come from a tough background. When she was four, her stepfather had strangled her mother as they fought.

  According to several accounts, Todd drank, ran around and physically abused Stacy. Police visited the house a number of times on domestic complaints. Still, something kept them together. Within a few years, the couple had three daughters: Amber and twins Karmon and Kameron. Amber and the twins were only a year apart. They rented a small, single-story wood-framed house at 1213 West Eleventh Street in Corsicana. Since Todd was having trouble finding work as a mechanic, Stacy took a job in her brother’s bar, while Todd stayed home to take care of the kids. While the evidence of his frequently beating Stacy is solid, even she says he never abused the children. And in the summer of 1991, she and Todd decided to make a real try for the long run. They married on October 1.