THE VIRGINIAN-PILOT 
              Copyright (c) 1994, Landmark Communications, Inc.

DATE: Thursday, September 8, 1994            TAG: 9409070143
SECTION: SUFFOLK SUN              PAGE: 06   EDITION: FINAL 
TYPE: Editorial 
                                             LENGTH: Short :   46 lines

IN GRAY'S CASE FAIRNESS IS ISSUE

As convoluted as the law may be, and as often as it may appear to benefit the criminal, among the most cherished assumptions of anyone entering any American court are that he is assumed innocent but, if proved guilty, will get a fair sentence. Violate either tenet, and constitutional guarantees tumble.

Thus the U.S. District Court finding that the sentencing hearing of convicted murderer Coleman Wayne Gray was ``fundamentally and irreparably unfair'' is much more than another piece of a legal puzzle to bar his execution.

Gray was sentenced in December 1985, for killing Richard McClelland, manager of a Murphy's Mart store in Portsmouth. An accomplice escaped the death penalty by plea-bargaining with C. Phillips Ferguson, Suffolk Commonwealth's attorney, and testifying against Gray.

The new sentencing for Gray is based on Mr. Ferguson's sentencing-hearing behavior. Judge James R. Spencer said the prosecutor ``ambushed'' Gray's attorneys by introducing evidence that they could not counter.

Their request for additional preparation time was denied. A jury had found Gray guilty of capital murder - punishable by death. In the sentencing portion, Mr. Ferguson introduced evidence linking Gray to the murder of a woman and daughter abducted in Chesapeake. The jurors were not told that the woman's husband was the prime suspect in the case.

According to the opinion, the jury might have taken a different position if Gray (1) had been granted due process, which prohibits execution based on information a defendant has no opportunity to deny or explain; or (2) had gotten fair notice that evidence in the totally separate murder case would be introduced. Without such notice, Judge Spencer said, ``the entire judicial system becomes a hollow and meaningless procedure.''

Mr. Ferguson holds that Judge Spencer is ``just plain wrong.'' Mr. Gray's appeals have been rejected by three other courts, and Mr. Ferguson expects this one to fall at the next stage.

That may be, but a man's life depends on the answers to some very valid questions raised by Judge Spencer's views. by CNB