Globe Newspaper Co. V. Commonwealth: an Examination of the Media’S “Right” to Retest Postconviction DNA Evidence Emily S

Richmond Journal of Law and Technology Volume 10 | Issue 1 Article 6 2003 Globe Newspaper Co. v. Commonwealth: An Examination of the Media’s “Right” to Retest Postconviction DNA Evidence Emily S. Munro University of Richmond Follow this and additional works at: http://scholarship.richmond.edu/jolt Part of the Criminal Law Commons, and the Entertainment, Arts, and Sports Law Commons Recommended Citation Emily S. Munro, Globe Newspaper Co. v. Commonwealth: An Examination of the Media’s “Right” to Retest Postconviction DNA Evidence, 10 Rich. J.L. & Tech 1 (2003). Available at: http://scholarship.richmond.edu/jolt/vol10/iss1/6 This Notes & Comments is brought to you for free and open access by UR Scholarship Repository. It has been accepted for inclusion in Richmond Journal of Law and Technology by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. EMILY S. MUNRO- GLOBE NEWSPAPER CO. v. COMMONWEALTH GLOBE NEWSPAPER CO. V. COMMONWEALTH: AN EXAMINATION OF THE MEDIA’S “RIGHT” TO RETEST POSTCONVICTION DNA EVIDENCE By: EMILY S. MUNRO* I. INTRODUCTION {1} In January of 2000, Governor George Ryan of Illinois issued a statewide moratorium on capital punishment, citing among his reasons the fact that more convicted killers had been exonerated than executed since Illinois reinstated the death penalty in 1977.1 In 2001 Maryland’s governor issued a temporary moratorium on capital punishment, pending the results of a University of Maryland death penalty study.2 The North Carolina Senate recently approved a bill that would suspend all state executions for two years, after twenty-one North Carolina municipalities passed resolutions favoring a moratorium and two death-row inmates were awarded new trials.3 {2} The debate over the fairness of the death penalty has been invigorated by the increased use of DNA testing to determine with certainty if felons convicted by traditional evidence are in fact actually guilty of their alleged crimes. Because each person’s DNA is a unique “genetic blueprint of life,” it can be a powerful tool in determining guilt or innocence.4 Debate continues as to whether and when a convicted felon can obtain and test DNA evidence; such controversy is beyond the scope of this Note.5 But in addition to the questions posed concerning the accused’s access to postconviction DNA testing, the potentially dispositive nature of such testing and the progressively more accurate results have piqued the interest of third parties to the original cases: the media. When the scene is set on death row, the stakes are especially high - not only for the accused, but for the judicial system itself.6 A. Common Law Freedom of Access {3} Open trials and freedom of access to public records have their origins in English common law, which allowed parties with an individualized interest in the proceedings to petition the court for access.7 The right of access in America is not so limited. The media may petition the court for access under the First Amendment, under various statutory acts ensuring Freedom of Information, and under the common law. The Supreme Court has noted that “the public’s interest in keeping ‘a watchful eye on the workings of public agencies’ [is] . sufficient . to justify access.”8 In Press-Enterprise Co. v. Superior Court of California (“Press-Enterprise I”), the Supreme Court further described the importance of open trials, explaining that: The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.9 Richmond Journal of Law & Technology- Fall 2003- Volume X, Issue 1 EMILY S. MUNRO- GLOBE NEWSPAPER CO. v. COMMONWEALTH EMILY S. MUNRO- GLOBE NEWSPAPER CO. v. COMMONWEALTH {4} The common law right to access under the First Amendment is traditionally determined by applying a two-pronged test articulated by the Supreme Court in Press-Enterprise Co. v. Superior Court of California (“Press-Enterprise II”).10 First, the court should consider “whether the place and process have historically been open to the press and general public.”11 Second, the court should consider “whether public access plays a significant positive role in the functioning of the particular process in question.”12 If the answer to both questions is affirmative, then the proceeding “passes these tests of experience and logic, [and] a qualified . right of public access attaches.”13 This right is not, however, absolute, and may be defeated by an “overriding interest based on findings that closure is essential to preserve higher values and [the closure] is narrowly tailored to serve that interest.”14 For example, access to evidence is usually granted where the requested material can be easily copied or examined (e.g., videotapes), but courts are understandably reluctant to grant access to evidence which could be compromised by the inspection (e.g., biological samples).15 B. Virginia: The Right of Access Refined {5} In 2002, the Supreme Court of Virginia ruled in Globe Newspaper Co. v. Commonwealth that newspapers did not have the right to obtain and test DNA samples from past criminal trials. Furthermore, the court ruled that such evidence was not included in the “public record” to which newspapers are guaranteed access under the Virginia Freedom of Information Act.16 {6} The suit grew out of the case against Roger Keith Coleman, who was convicted of the rape and murder of his sister-in-law, Wanda McCoy, in 1982. The jury sentenced Coleman to life in prison for McCoy’s rape, and imposed the death penalty for McCoy’s murder. The biological material at issue, which included hair and body fluids, was collected from the victim and offered as evidence at Coleman’s trial. Since DNA testing was unavailable in 1982, the prosecution presented evidence from forensic serologist Elmer Gist, Jr. Gist testified that hair samples taken from Coleman were consistent with those found on the victim. Spermatozoa found in the victim’s vagina came from someone with Type B blood who was a secretor, meaning that his bodily fluids, such as semen or saliva, contained evidence of his blood type.17 In a given population, 80% to 85% are secretors, but only 10% have Type B blood.18 Coleman was a secretor with Type B blood. By 1990, more sophisticated tests had been developed, and Coleman successfully petitioned the court for a DNA test of the biological material found on Wanda McCoy’s body. “The test results did not exclude Coleman and 2% of the Caucasian population as the source of the biological material.”19 This DNA test, when combined with the blood type testing, “narrow[ed] the percentage of the population with these characteristics to .20%.”20 After the Supreme Court denied a final stay of execution, Coleman was executed in 1992.21 {7} Eight years later, when a forensic lab in California revealed that new DNA testing of the evidence in its possession from the Coleman trial could definitively determine if he was the killer, the Boston Globe, among other newspapers, petitioned the Circuit Court of Buchanan County, Virginia to obtain and test the evidence.22 The circuit court denied the request, and the ruling was affirmed by the state supreme court, which found no right of access under the First Amendment, the Virginia Freedom of Information Act, or the common law. {8} The purpose of this Note is to examine the effect of Globe Newspaper Co. v. Commonwealth on future expansion of the definitional reach of “access.” Part II will address whether access Richmond Journal of Law & Technology- Fall 2003- Volume X, Issue 1 Richmond Journal of Law & Technology- Fall 2003- Volume X, Issue 1 EMILY S. MUNRO- GLOBE NEWSPAPER CO. v. COMMONWEALTH EMILY S. MUNRO- GLOBE NEWSPAPER CO. v. COMMONWEALTH should include retesting of biological evidence by third parties. Part III will examine whether biological material such as DNA should be included in the public record. Finally, Part IV will focus on the implications of allowing independent parties to retest DNA materials after conviction and discuss the policy arguments for and against posthumous testing. II. THE RIGHT TO RETEST CRIMINAL EVIDENCE {9} The plaintiffs in Globe Newspaper v. Commonwealth argued for access to obtain and retest biological evidence under the Virginia Freedom of Information Act (“VFOIA”), the First Amendment to the United States Constitution, and Article I, Section 12 of the Virginia Constitution. The VFOIA states: “The following records . may be disclosed by the custodian, in his discretion, except where such disclosure is prohibited by law: (1) Complaints, memoranda, correspondence, case files or reports, witness statements, and evidence relating to a criminal investigation or prosecution . .”23 The statute leaves the determination of access solely to the court’s discretion, which seems merely to echo the common law. In Nixon v. Warner Communications, the Supreme Court itself admitted the difficulty in “distill[ing] from the relatively few judicial decisions a comprehensive definition of what is referred to as the common-law right of access” and left it to the particular courts to determine on a case-by-case basis.24 The First Amendment freedom of the press argument parallels that of the Virginia Constitution, and the two were considered together in the case.25 A. Access Under the Press-Enterprise II Standard {10} Both parties agreed that access, as traditionally defined by the courts, had been granted; the newspapers were seeking instead to broaden the idea of access to include independent retesting of Coleman’s DNA.

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