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Newspapers' bid to investigate DNA in 1981 killing quashed by court

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    NMU         VIRGINIA         Secret Courts         Nov 8, 2002    

Newspapers’ bid to investigate DNA in 1981 killing quashed by court

  • The state’s supreme court justices said neither the First Amendment right of access to courts nor Virginia’s open records law allow for new DNA testing to determine the guilt or innocence of a man executed in 1992.

The Virginia Supreme Court rejected a news media request to test DNA in a 20-year-old murder case, finding there was no right to such access under the First Amendment or the state open records law.

The The Washington Post, The Boston Globe, two Virginia newspapers and a New Jersey-based non-profit organization had hoped to determine whether Keith Coleman, executed for murder in 1992, was actually guilty of the crime for which he was executed. Until his death he was unwavering in his insistence that he was not.

In its Nov. 1 decision, the court held that the definition of public “access” that must be allowed in judicial proceedings under the First Amendment “does not include the right of the public at large or the press to subject a criminal case to testing.” It said that the right to test evidence in a criminal case “has not been historically extended to the press and the general public.”

The newspapers and other organizations told the court that because of scientific advances in DNA research and a spate of findings that death row inmates were wrongfully convicted, it was in the public’s interest to gauge the reliability of capital punishment and ensure that an innocent man had not been executed. The court made little mention of the newspapers’ arguments.

Writing for the court, Justice Donald Lemmons held that there is no First Amendment right of access that would force new testing of the DNA because such testing has not traditionally been allowed and would “not play ‘a significant positive role in the functioning’ of the judicial process.”

“Historically, the constitutional right of the public and the press to have access to criminal proceedings has applied to hearings and trials and inspection of documents and records that have been introduced at such proceedings,” Lemmons wrote. “Here, the newspapers seek ‘access’ to something that does not exist, namely, new evidence in the form of new test results.”

Lemmons added that widening the definition of “access” to allow the public or the press to test evidence would not be a confined to only cases in which a death sentence has already been imposed. The practice, if permitted, would logically apply to all criminal proceedings, he said, placing a broad new burden on courts that would not benefit the administration of justice.

Moreover, the evidence could not be accessed for such purposes under the Virginia Freedom of Information Act. Justice Lemmons said the biological material recovered on swabs from the victim “does not meet the test of a ‘public record.’ ” And even if it did, he said, the Virginia FOI Act “allows for inspection and copying, not testing.”

The Washington Post disagreed with the court’s reasoning in an editorial, saying that there “is no good reason not to test the physical evidence that still exists. If Mr. Coleman was, in fact, guilty, the test could firm up one of the most shaky convictions to result in an execution in modern times. If he was innocent — as he maintained publicly from the day of his arrest to his final words before his electrocution — surely policymakers and the public ought to know, not least because it would imply that a rapist and murderer is still at large.”

(Globe Newspaper Company v. Virginia; Media counsel: Margaret E. Stone, Stone, Harrison & Turk, P.C.) GS


© 2002 The Reporters Committee for Freedom of the Press

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