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Execution of Justice



Ten years ago last week a murder took place in my home. Someone broke in, raped and bludgeoned the baby-sitter, and left her bound and dead facedown in the water filling the bathtub. A fire the intruder then set in the basement filled the house with smoke, but a fireman who broke through a second-story window found our ten-month-old baby in her crib in time to save her life.

I would have been dwelling on that crime regardless, but the execution of Roger Keith Coleman came along to complicate my thoughts. It forced me to remember the trial of Tommy Lee Jackson, the young, orphaned ne'er-do-well who confessed to our crime.

Jackson will spend the rest of his life in prison. Coleman, who also was convicted of rape and murder, was sentenced to death and eventually executed on a technicality. The technicality was that in 1986 two pro bono Washington lawyers were a day late filing his petition for a hearing on new evidence. That's the reason the U.S. Supreme Court gave for turning it down. But the evidence that could not be presented in a court of law was splashed before the American public. Coleman's lawyers wangled him time and space in the New Republic, Newsweek, PrimeTime Live, Donahue, and other venues. Time magazine contributed a cover story. The Chicago Tribune's James Warren reported that two days before Coleman died, a prison spokesman told a local reporter sorry, but Coleman was now speaking only to the national media.

Coleman had been convicted of raping and stabbing to death his sister-in-law Wanda Fay McCoy on the night of March 10, 1981. You might want to argue that surely 11 years of legal wrangling were enough. But the journalism on Coleman's behalf argued that his 1982 conviction was tainted by incompetent attorneys and that powerful evidence in his favor had since emerged.

Journalism did what it could, putting the fresh information before the public if not before the bar. The Supreme Court's unyielding refusal, on procedural grounds, to consider this evidence strikes me as an act of enormous insolence. It shows contempt for the media's role as civic conscience and greater contempt for what is surely the popular assumption that justice always stands above process. If the rights the court can deny include the right not to be executed while guilt remains so uncertain, then what rights can people count on?

Not that the other citizens of tiny Grundy, Virginia, were unhappy to see Coleman die. Said the Washington Post, "There, in the far southwestern area of Virginia near Kentucky, there is a widespread belief that he is guilty, and [Governor] Wilder's office received several hundred calls and letters urging that the execution be carried out.

"Tom Scott, the prosecutor who tried the case a decade ago, said the community was looking forward to tonight's execution as a way to bring a long, sad episode to a close."

There was, furthermore, the polygraph test Coleman flunked hours before he was executed. Of course these tests are notoriously unreliable, and Governor Douglas Wilder acknowledged as much when he said, "If he had passed it, it obviously could have--could have--influenced my decision" on whether to grant clemency. Yet Wilder embraced the results he got. "This removes any shred of doubt relevant to Virginia's providing every opportunity for those tried in our system to have fairness," he said, sounding less concerned with Coleman's fate than with Virginia's honor.

There was also an attempted-rape conviction in Coleman's past. Not that this proved anything related to Wanda Fay McCoy, but it did make it harder to shed tears for the doomed man. And the New York Times reported that prosecutor Scott "said the overwhelming weight of the evidence, including physical evidence of DNA and blood tests and pubic hairs, were even stronger now than what the jury heard."

So there's a paradox. The prosecution's case as well as the defense's became more impressive in the years since the trial. So was it a wash? Or did all this fresh, conflicting evidence beg to be sorted out?

Scott's boast reminds me of one of the myths of criminal law, which is that the evidence presented against a defendant always falls short of what the police and prosecutors really know. Juries like to believe this; I've wanted to believe it myself ever since the 1985 trial of Tommy Lee Jackson.

To see our baby-sitter's killer named and punished was once my life's overwhelming desire. I turned the murder over endlessly in my mind. What if I'd come home to retrieve a briefcase and arrived in the nick of time? Or been up in my attic office and heard noises and slipped downstairs wielding an ax? Late at night I'd listen to music and imagine the returning killer suddenly smashing through a window.

Two years went by before the detectives on the case offered us any comfort. Then they called to say they had the killer. Tommy Lee Jackson, a jailed suspect in a recent rape and robbery, had been squealed on by a codefendant who hoped to cut a deal. It seemed Jackson had done some bragging about women he killed. The detectives brought Jackson downtown for questioning, and he confessed.

Jackson confessed to the crimes in our house, and also to the rape and murder ten weeks later of Marybeth Duncavage, a medical student whose bound and beaten body was found in her Lakeview apartment several days after she died. I drove to the criminal courts and introduced myself to Jackson's prosecutor. I wanted someone able and ruthless, someone who'd understand that until Jackson was convicted my family would not lead normal lives.

Lucky are the prosecutors. They alone in a criminal courtroom can disdain the pretense that a presumption of innocence is in any way due the accused. Their task is to convince first themselves and then a jury of what everyone wants to believe: that the charges are true and that with a guilty verdict both vengeance and justice will be served. For if the defendant is acquitted two painful questions must be faced: Why was he tried? And who did it?

But a weight lies on a prosecutor's shoulders, and it is enormous when the crime is murder. As a professional, he may be able to lay one trial aside, win or lose, and get on with another. But the survivors of the victim cannot. A prosecutor who fails to make his case condemns these mourners to added years, perhaps lifetimes, of confusion and anguish. And so as the trial nears, their despair hardens his certainty. The hope of retribution he holds out sustains them. He becomes their champion.

Tommy Lee Jackson's lead prosecutor was hard as steel. She always found time for us, and she seemed totally dedicated to putting Jackson away. She put him on trial for the Duncavage murder, holding ours in reserve, because that case gave her somewhat more to work with--in addition to Jackson's confession there was someone who'd testify he saw him standing in the street watching Duncavage move into her apartment three days before she died. And when, to our horror, the public defenders came up with information that tore the state's case apart, she countered with the most bravura feat of trial lawyering I'll ever see.

What the defense had discovered was Navy records showing that on May 26, 1982, the day of the murder at our home, Seaman Tommy Lee Jackson was locked up in the segregation unit of the brig at Great Lakes. His confession to the two murders, which he now repudiated, was clearly worthless.

But our prosecutor chipped away. She offered testimony that the brig records were slipshod--perhaps by May 26 Jackson had actually been released. Or maybe he'd escaped--a former prisoner (though not of the brig's segregation unit) described how he'd managed to walk out. Moreover, the jury was reminded that the May 26 murder was not the one for which Jackson was being tried. The jurors were shown the grotesque pictures taken just after the victim's body was found. They heard a prosecutor contend that Jackson was really pleading, "Stop me before I kill again." And they managed to disregard the Navy records. There are some mistakes a person cannot afford to have on his conscience, and acquitting the killer of Marybeth Duncavage was not going to be one of them.

There was never a second when I did not want Jackson convicted. I awaited the verdict with dread, and it brought me immediate joy. Now we could tell our children--we could tell ourselves--that the bad man would never come back to our house. The mother of Marybeth Duncavage told the Tribune, "She's free to go to God now. I just thought she'd never rest."

We felt assuaged. Someone was going to pay. But when the state asked for the death penalty for Tommy Lee Jackson, reminding the judge of the other grisly murder he'd confessed to, our own, I held my breath. Suddenly I recognized how agnostic I felt. No, said the judge, and he sentenced Jackson to life in prison. At the back of the courtroom I gave thanks. I wondered if the judge even believed Jackson did it.

But I might have wanted Jackson's blood in other circumstances. It wasn't our daughter who'd been murdered. Our daughter had lived.

Jackson was never tried for murdering our baby-sitter.

His appeal ended last year in defeat. It had been based on two premises: (1) that he wasn't guilty, and (2) that when he'd been arrested for the rape and robbery he'd asked for a lawyer, and therefore his lawyer should have been with him when the police grilled him about the murders. But then the Supreme Court ruled otherwise in a parallel Wisconsin case, and that was that for Jackson.

As for his guilt or innocence, the Roger Keith Coleman appeal made it clear just how seriously this court takes this question. It wants to execute the condemned and be done with them. Perhaps the court tells itself that it merely wants what our family wanted and the Duncavages wanted and the good people of Grundy, Virginia, wanted. But what I'd wanted was justice on my terms; I'd wanted satisfaction. If the Supreme Court has no more interest in justice than I had, we're losing the rule of law.

Art accompanying story in printed newspaper (not available in this archive): photo/courtesy AP/Wide World Photos.

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