Montana Black Man’s Death Sentence Splits U.S. Court

A divided federal appeals court on Tuesday upheld the death sentence of a black man convicted of raping and killing a Montana school teacher, even though a dissenting judge insisted that Dewey E. Coleman “in all likelihood would not be facing execution if he were white.”

In one of the most sweeping opinions the court has rendered on capital punishment, the U.S. 9th Circuit Court of Appeals upheld the right of prosecutors to reject Coleman’s guilty plea to lesser charges while accepting an identical plea that saved the life of Coleman’s white co-defendant.

The court also rejected arguments from Coleman’s lawyers that prosecutors had the burden of disproving that Coleman’s strong record of community service and lack of any prior criminal background weighed heavily enough to mitigate against imposition of the death penalty.

Coleman is the only black prisoner on Montana’s Death Row. He and Robert Dennis Nank were charged in the rape, beating and eventual drowning of 21-year-old Peggy Lee Harstad, who disappeared while driving alone from Harlowton to Rosebud in Montana on July 4, 1974.

Nank pleaded guilty to deliberate homicide and solicitation to commit sexual intercourse, charges which do not carry the death penalty, and testified against Coleman. Coleman attempted to negotiate a similar deal, but prosecutors rejected his offer and brought him to trial.

The decision was based in part on Coleman’s early assertions of his innocence and in part on Nank’s testimony that it was Coleman who initiated the murder.

The 63-page majority opinion and 120-page dissent represent the widest-ranging discussion of the death penalty in recent years for the 9th Circuit, which is bracing for a flood of death penalty cases this year as appeals begin moving up from the lower courts in the West.

As of late last year, there were 300 inmates on Death Row in the 9th Circuit, which acts as the intermediate appeals court for the nine westernmost states. A total of 44 inmates are expected to bring federal death penalty appeals through the court this year.

The opinion in the Coleman case did not appear to break any new legal ground, but the case did provide a focus point for a broad range of issues that are likely to arise in future death penalty appeals: race discrimination, the burden of proof in considering aggravating and mitigating factors of an offense, how prior offenses with which a defendant has not been charged should influence sentencing, and the latitude that prosecutors may exercise in accepting plea bargains when a defendant’s life may hinge on the outcome.

In a sharply worded dissent, Los Angeles Judge Stephen Reinhardt asserted that Coleman’s sentencing hearing “was little more than a sham and would hardly have been adequate were the issue whether a Little Leaguer should be suspended for one game.”

Montana officials, Reinhardt said, are “planning to hang Dewey Coleman, a black man who in all likelihood would not be facing execution if he were white.” Reinhardt called the decision not to allow Coleman to enter a plea bargain similar to Nank’s “entirely arbitrary and meritless . . . (which has) every appearance of being pretextual.”

‘This Black Boy’

But the court majority, in an opinion written by Judge David R. Thompson with the concurrence of Judge Arthur L. Alarcon, said there was no evidence of racial prejudice in the trial record, even when the trial judge referred to Coleman as “this black boy.”

Noting the “wide discretion” that prosecutors have traditionally exercised in deciding whether to seek the death penalty or accept a plea bargain, the court majority concluded that prosecutors had no obligation to accept Coleman’s offer to plead guilty.

The court itself, the judges held, has no authority to second-guess prosecutors’ decisions on plea bargains without a clear finding that a defendant’s constitutional rights had been violated. The majority said it could make no clear finding of racial prejudice in Coleman’s case, but Reinhardt disagreed.

“Under these circumstances, the prosecution’s motivations are, at the very least, highly suspect,” Reinhardt countered. “A black defendant received life or death treatment unequal to that received by his similarly situated white co-defendant. The prosecution offered frivolous and inconsistent explanations for that difference in treatment. When the trial judge would patiently point out legal errors in their explanations, the prosecutors would switch grounds and try to put an end to the plea bargaining.

One Consistency

“The prosecutors were consistent in only one respect. They were unyielding in their determination to try the black defendant on capital charges and then execute him,” Reinhardt said.

Discrimination, Reinhardt said, “still exists but it has become more difficult to recognize. Proof no longer comes wrapped in nice little packages with red ribbons and tinkling bells.”

Another key issue in the case was Coleman’s contention that his rights were violated when he was sentenced under a new Montana death penalty statute adopted after the first statute, under which he was originally sentenced, was declared unconstitutional.

The court majority rejected that argument, ruling that the new law “did not change ‘the rules of the game.’ ”

The court also rejected Coleman’s lawyers’ claims that prosecutors had the burden of disproving the existence of mitigating circumstances--including his lack of any prior criminal record and his active work on behalf of a community action group--before the death penalty could be imposed.

No Requirement

Even though the trial judge did not make any specific findings that he had taken such factors into consideration--other than a blanket statement that he had read the presentence probation report--there is nothing in the law that requires the court to do so, the majority held.

Henry T. Greely, a Stanford University law professor who handled Coleman’s appeal, said it is likely he will seek a rehearing of the case before a full 11-member panel of the court.

Pat Schaeffer, Montana’s assistant attorney general, said she could not comment on the opinion because she had not seen it, but said there was never any evidence of racial discrimination in the handling of Coleman’s case.