AMERICANS are brought up believing that federal courts are our ultimate protectors against the abuse of state power. The innocent man, convicted in violation of the Constitution, can look to those judges to vindicate his rights.
That belief -- that premise of our system -- is now in the balance. It will no longer be valid if a provision in the Senate crime bill, put there at President Bush's urging, becomes law.
The provision masquerades as a reform of a historic jurisdiction of the federal court: the right to consider habeas corpus petitions from state prisoners challenging the constitutionality of their convictions. In fact, the bill would eliminate that right for all practical purposes. It is a court-stripping bill.
What it means can be understood in the context of a concrete example. Consider the case of Roger Keith Coleman, one aspect of which was decided by the Supreme Court in June.
Coleman was a coal miner in Grundy, Va. On the night of March 10, 1981, his wife's sister, Wanda McCoy, was raped and murdered in her home. Five weeks later, amid much community agitation about the crime, he was charged. In 1982 he was convicted and sentenced to death.
The prosecution referred to a three-inch knife owned by Coleman as the murder weapon but did not introduce the knife in evidence. Two wounds in Mrs. McCoy's body were four inches deep and according to experts could not have been caused by Coleman's knife.
Coleman gave a detailed account of where he was the night of the crime. Among other things he said he had had a long talk with a friend near the time of the murder, and the friend said he had the talk just before going to work on a night mine shift. The prosecution had a time card showing that the friend had punched in to work just when he said -- but withheld the card from the defense.
The most damaging prosecution evidence was testimony by another prison inmate, Roger Matney, that Coleman had confessed the crime to him. Matney was serving a four-year sentence but was released after 10 1/2 months. He said he got "no time off" in return for his testimony.
At the trial Coleman had appointed defense counsel, young lawyers who were hopelessly inept and unprepared. They raised constitutional issues in the Virginia courts after conviction. But they filed an appeal one day late, under Virginia rules, and it was dismissed.
The late filing was the subject of the Supreme Court decision in June. A 6-to-3 majority held that this procedural failure in the state courts, though inadvertent, barred Coleman from filing a federal habeas corpus petition. Federal courts could not look at his case, no matter how compelling his claims.
Now suppose the Virginia appeal had been filed on time. Suppose it showed gross constitutional violations but the higher Virginia court rejected it in one sentence: "We have fully considered appellant's claims and find them without merit."
Under the Senate crime bill, Coleman would be barred from the federal courts. Even if virtually all federal judges would see violations of his rights, they could not consider the case because a state court had rejected his claims on "full" consideration.
That is not just a speculative possibility. State courts, inundated by thousands of criminal appeals, let many glaring violations of the Constitution slip by.
The case of Roger Coleman may itself have more to tell us about the possibility of mistakes in state criminal justice. New lawyers working on the case have found new evidence.
A young woman says in a sworn affidavit that a man she names assaulted her and threatened "to do me like he did" the victim in Grundy. Another woman says that in a rape attempt the same man threatened her with an eight-inch knife. Another new witness says she heard Roger Matney deny that Coleman had confessed the crime to him.
In 1940, in a case from Florida, Justice Hugo L. Black said for the Supreme Court: "Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement."
Will the federal courts still be able to play that role?