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It was never supposed to work this way. Back in 1976 when the Supreme Court reinstated the death penalty, it signaled in a series of decisions that utmost vigilance must be applied in capital cases. The court warned that death is the "most irrevocable of sanctions," and spoke of the "need for reliability in the determination that death is the appropriate punishment." But under Chief Justice William Rehnquist's leadership, the Supreme Court seems more concerned with finality than fairness. Frustrated by the mounds of habeas corpus petitions that clog federal dockets -- Coleman's current petition, which includes the Commonwealth of Virginia's rebuttal, is more than 4 1/2 in. thick -- the court has sharply curtailed the ability of state prisoners, including capital felons, to approach federal courts with challenges to their convictions or sentences. "It is not clear to me what, if anything, will allow you to have a hearing in federal court as a matter of right," says Bryan Stevenson, director of Alabama's Capital Representation Resource Center.
The fact that federal judges have found constitutional errors in about 40% of the death penalty cases they have reviewed since 1976 does not seem to faze the Supreme Court. Instead the court's insistent message is that defendants are represented adequately in the state courts, so federal appeals are unnecessarily redundant. In last week's habeas corpus decision, for instance, Justice Byron White wrote, "It is hardly a good use of scarce judicial resources to duplicate fact finding in federal court merely because a petitioner has negligently failed to take advantage of opportunities in state- court proceedings."
Lawyers who know their way around death row argue that such an opinion could only have been written by someone seriously out of touch with the way justice is served up at the state level. Often those most in need of help -- the poorest and the least educated -- get the shoddiest representation. They may be defended by court-appointed lawyers who are either young and inexperienced or old and broken down; either way, these attorneys rarely have experience with the intricacies of habeas law -- perhaps the most complex part of criminal procedure. Where once the Supreme Court protected defendants from dumb or lazy lawyers, now defendants pay the price for their attorneys' mistakes. "It means," says Esther Lardent, director of the American Bar Association's Post-Conviction Death Penalty Representation Project, "the worse someone's trial lawyer is, the less likely they are to get review."
Roger Keith Coleman's case is filled with the kinds of errors that make federal review so vital. There is an allegation that Coleman's trial may have been tainted by a biased juror; that his lawyers made some major blunders; that another man may have committed the crime. But tidy procedural obstacles have blocked Coleman's attempts to obtain a federal evidentiary hearing. With the clock ticking toward his execution, it is reasonable to ask: Just what does it take to get a reconsideration of a conviction that brings a sentence of death?