Anatomy of Injustice

by Raymond Bonner

  Lethal injection as a method of execution had first been proposed in the nineteenth century by a New York doctor as cheaper than hanging, but was not adopted. Britain rejected it in the early 1950s because of opposition by the British Medical Association. Oklahoma was the first state to use it, in 1977, and eventually all capital punishment states followed. The condemned is strapped onto a gurney and wheeled into the execution chamber. Witnesses are on the other side of a window, looking in. The man’s arms are swabbed with alcohol, and two intravenous tubes are inserted, one in each arm. From another room, unseen by the condemned man or the witnesses, the executioner first releases a general anesthestic into the tubes. (In surgery, 100 to 150 milligrams is used; for executions, as much as 5,000 milligrams.) This is followed by a muscle relaxant, which paralyzes the diaphragm and lungs, thus making it impossible for the condemned man to breathe. Finally, potassium chloride may be injected, causing death by cardiac arrest.

  Death penalty lawyers mounted systematic challenges to the method, and numerous state and federal appellate courts granted stays. In 2008, the United States Supreme Court spoke, in the case of Ralph Baze and Thomas Bowling, who had been convicted of double murders in Kentucky. Their lawyers argued that there was a significant risk of the drugs being improperly administered and that therefore lethal injection was “cruel and unusual,” in violation of the Eighth Amendment. A range of organizations filed briefs in support of the position, including the ACLU, the Louis Stein Center for Law and Ethics at Fordham University, Human Rights Watch, and the American Association of Jewish Lawyers and Jurists. The Bush administration and sixteen states filed “friend of the court” briefs in support of Kentucky, which was seeking to execute.

  The court rejected the argument. Writing for the majority, Chief Justice John Roberts noted that since 1879, when it upheld use of the firing squad, the court had rejected every challenge to the method of execution. “Our society has nonetheless steadily moved to the more humane methods of carrying out capital punishment,” he wrote. “The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection.”

  Justice John Paul Stevens joined the majority but said he did so only because he felt bound by the court’s previous rulings upholding the constitutionality of the death penalty. Stevens, who had voted with the majority when capital punishment was restored in 1976, made it clear that it was time for state legislatures to consider repealing their death penalty laws. “State-sanctioned killing,” he wrote, was “becoming more and more anachronistic.”

  HOLT WAS NOT AGAINST capital punishment as she listened to the radio reports of Brooks’s execution, though she was unnerved by the method. It was not until her first year of law school that her opposition to the death penalty began to take shape. She befriended a Mexican woman and her friends who had camped out on the sidewalk in front of the governor’s mansion to protest the pending execution of the woman’s son. She brought them food, sympathy, and, with her Spanish, someone they could talk to. In the academic cloister, she discussed capital punishment with her contracts professor, Tom Russell. Close in age, he and Diana became good friends, often talking about their children. He was struck by how quiet she was. “The shiest student you could find,” Russell said. During three years of law school, “Miss Sassy” barely spoke. She and Russell debated whether he should write on the blackboard the name of every man who was executed in Texas on the day it happened. She encouraged him to do it. But he wasn’t tenured and backed off. When Holt told Russell that she thought she wanted to work as a death penalty lawyer, he had serious doubts that her commitment would survive the three years of law school, which have a way of turning idealists into corporate lawyers.

  In her first year, Diana applied for a Texas Law Fellowship, for students interested in careers in public interest law. Diana doubted she had much of a chance—there were only ten fellowships—but she got one, and the $3,000 stipend was a welcome addition to the family budget. On the recommendation of Professor Steiker, she went to work at the Texas Death Penalty Resource center, in Austin. There were twenty similar offices in capital punishment states around the country. Congress had created them in 1987, in an attempt to provide men and women on death row with competent counsel to challenge their convictions, which often were the result of grossly incompetent trial counsel. Resource center lawyers were strikingly successful—half the death penalty cases they handled ended up with the conviction or sentence being reversed—and the centers came under attack from conservatives. “Taxpayer-funded nests of saboteurs who believed it was their mission to grind the system to a halt,” as one conservative legal voice, Kent Scheidegger, put it. He was right that they were taxpayer funded, and if keeping a man alive meant grinding to a halt the system that was going to kill him, the lawyers did that—just as any good corporate lawyer would do if it meant protecting his client from paying out millions of dollars in damages in commercial litigation.

  Sheidegger’s saboteurs were Holt’s heroes, role models, and mentors—Rob Owen, Raoul Schonemann, and Eden Harrington, names as unknown to the public at large as they were well-known to death row inmates. They were energetic, idealistic, passionate lawyers. Diana caught their spirit and found her calling. “Poisoned, hooked, there will be nothing else,” she said.

  The lawyer who had the most influence on Holt that summer was Joe Margulies. Intense, wiry, and bearded, he was slightly older than the others and had already lost some of his idealism about criminal justice. He had grown up in suburban Washington, D.C., the son of a government lawyer, and had been uncertain what he was going to do when he went to college. Searching, he took a leave of absence from Cornell to work as an investigator in the public defender’s office in Washington, D.C. After a year and a half, he returned to Cornell, graduated, and went to work with the public defender in Minneapolis. He was jolted by the state misconduct he witnessed. Police and prosecutors would dissemble, conceal and plant evidence, and engage in other unethical conduct in order to gain a conviction. He decided to become a lawyer, graduated from Northwestern University Law School with honors, and naturally migrated to Texas, the most active state in executions.

  “I thought a bunch of smart young lawyers who worked really hard could stop the killing machine,” he said, looking back more than two decades later. “I really believed that. We were so fucking young and smart and talented. We all went to hot-shit law schools and clerked and had hot-shit résumés. We worked insane hours. Insane. We were nuts. Drank like fish. It took me a long time to get past that, and not before I burned out big-time.” When he ceased representing death row inmates, he still raged against injustice and didn’t shy away from unpopular causes. He would be one of the first lawyers to defend suspected terrorists held at Guantánamo and in the secret prisons, signing up when the anger about 9/11 was still raw and lawyers who took the cases were labeled un-American and traitors.

  Holt found him to be “dynamic, charismatic, brilliant, wacky,” and an exacting mentor. “He could peel the skin off,” Holt recalled years after studying under his tutelage. “It was effective—you weren’t going to make that mistake again.” He also instilled confidence. He once sent Diana and another intern to Del Rio, Texas, to interview a cop who had a particularly nasty reputation and had been thrown off the police force for violence. Diana’s colleague decided after a few days in Del Rio that it was too dangerous and bowed out. Joe called Diana and asked if she felt in danger. If she did, she should come home. She said no and that she would call him if it became too risky. He trusted her judgment, and her confidence slowly grew.

  “Are you a fact lawyer or a law lawyer?” Margulies barked at Holt on one occasion. She stammered that she was both. “Goddamn it, Holt,” he shot back, “anybody can take the law and write it out. You have to have the facts.”

  In criminal defense appellate work, “law lawyers” are ardent students of the Constitution and can dissect th
e Supreme Court cases interpreting it. They argue when appropriate that their client did not get a fair trial or was denied effective assistance of counsel, that the state failed to turn over exonerating evidence, that blacks were excluded from the jury, that this constitutional provision and that were violated. Fact lawyers investigate vigorously and search for evidence that shows their client did not commit the crime or, if he did, that his life should be spared. Diana was to become a fact lawyer extraordinaire, an investigator’s investigator. No matter how deeply the state had sought to bury evidence, she could find it. She had an ability to get folks to open up to her, even confess to murder. “It’s amazing what people will tell her,” said a colleague. Maybe her diminutive size put people off their guard. There was also a bit of actress about her, and her Texas accent would become noticeably thicker when she was trying to gain someone’s confidence.

  The second year of law school didn’t beat the idealism out of Diana either. Margulies suggested she broaden her experience by working at the South Carolina Death Penalty Resource Center.

  WHAT THE HELL am I doing? Holt thought. It was June 1993 and she was driving across the South in her Nissan minivan loaded with clothes, pillows, photographs, everything she thought she would need, want, and miss during a summer in South Carolina. Most of all, she knew she’d miss her boys—Jeffrey was a few months shy of becoming a teenager, Justin was ten, and Christopher was about to turn five. Am I a horrible mother, leaving them for ten weeks? she asked herself. She was scared, heading toward a totally new experience, but at the same time proud that she had the courage to travel halfway across the country by herself.

  On Sunday, she pulled up in front of a town house on the outskirts of Columbia. Her roommate, a first-year law student from Georgetown University in Washington, D.C., Marta Kahn, had already arrived. “There are only two things you need to know about me—one, I smoke, but I’ll do it outside,” Marta said as they introduced themselves. “Two, I would strongly recommend not speaking to me in the morning.” Diana grinned. She smoked, too. And morning was most definitely not the time to talk to her.

  They bonded quickly—“We’re like that Thelma and … and … what’s her fucking name?” Diana exclaimed one day—though they were from totally different backgrounds. Marta, whose father was a psychologist and a staunch Republican (until after one presidential term of George W. Bush), had gone to an elite private girls’ school in the nation’s capital, National Cathedral, followed by Yale, where she graduated magna cum laude. Marta traced her liberalism to an incident at the Capitol when she was fifteen or sixteen: she had watched as a black man was arrested and roughed up by the cops. At Yale, she took a course on the death penalty.

  Marta was ten years younger than Diana and Diana became her best friend, part big sister and part mentor. “She took me under her wing,” Marta said. “She was my big booster, a cheerleader, gave me confidence.” Marta had never met anyone quite like her—fearless, antiestablishment, passionate, and determined. “When she gets her teeth into something, you’d better not try to take it away.”

  That first Sunday, after unpacking, Diana suggested they drive down to the resource center and check it out. The center is on the second and third floors of a brick building on the corner of Lady and Sumter, around the corner from the South Carolina Supreme Court. The carpet was worn, the file cabinets were battered, the chairs rickety, and papers were tossed into boxes, which were piled up in closets—a garden-variety public-interest law office.

  Margulies had told Holt that two brilliant death penalty lawyers ran the center, David Bruck and John Blume. They became her “gods,” though they had entirely different personalities—Bruck was serene, Blume explosive. Never one to shy away from difficult men, Diana gravitated to Blume, whom she found brilliant and bold. The first time she heard his voice, booming from his office down the hall, she thought he sounded like Jethro from The Beverly Hillbillies.

  During Diana’s first week as an intern, she and Blume had a conversation about the center’s death row clients. “I don’t allow myself to believe any of them are innocent,” Blume said. For him, guilt or innocence wasn’t the issue. The issue was justice—good defense lawyers, ethical prosecutors, in short, a fair trial. “You’ve been doing this too long,” Holt shot back. She realized later hers was an inappropriate remark.

  Over six feet tall with shoulder-length hair, John Henry Blume III was intensely competitive, in court and on the playing field; golf clubs and tennis rackets were part of his office decor. His office attire was shorts and tennis shoes in the summer, blue jeans in winter; a suit and tie were on standby in the corner for court appearances.

  Blume grew up in a motel in Myrtle Beach, South Carolina, which his parents owned. At fifteen, he was the Junior Men’s East Coast Surfing champion. After graduating from the University of North Carolina, he went to Yale for a master’s in theology. While a divinity student, he worked for New Haven legal aid, primarily with juvenile offenders. He decided that he could do more good as a lawyer than as a Methodist minister, so he shifted to Yale Law School. After his first year there, he worked as a summer associate in a large Atlanta law firm, generally a step to a well-paying job with the firm postgraduation. But he was still infused with a sense of social justice.

  One morning, he read in The Atlanta Constitution about what had become known as the Alday murders, which had shocked the state, region, and nation. Three prison escapees had broken into a farmhouse in Seminole County, Georgia, looking for money and guns, and killed Jerry Alday, his father, two brothers, and an uncle. They forced Jerry Alday’s wife into a car and brutally raped her before killing her. In separate trials, the three men had been convicted and sentenced to death. Their cases were now on appeal, and Millard Farmer, the prominent civil rights lawyer, was representing one of them. Blume called Farmer and volunteered to work on the case.

  The Alday case was the kind of horrific crime that swells the ranks of capital punishment advocates and makes it hard for death penalty agnostics not to become believers. Blume didn’t deny the horror of the crime, but to him the trial had been a farce, a legal lynching. Over half the jurors had been to the Alday funerals, but the judge refused to grant a change of venue or to disqualify them. The Georgia lieutenant governor had been brought in as special prosecutor. As an idealistic law student, Blume thought this was a cause worth fighting for. (Years later, the convictions were overturned on the grounds that the pretrial publicity and community uproar had made a fair trial virtually impossible. On retrial, two of the men, Wayne Coleman and George Dungee, were sentenced to life in prison. Carl Isaacs was sentenced to death; he spent thirty years on death row before he was executed in May 2003.)

  In representing men on death row, Blume had found his calling, one that “resonated with my religious background and training—all have sinned and fallen short of the glory of God.” But the work exacts a toll. It is emotionally draining to watch a person you have fought for, maybe even gotten to know a bit as a human being, be strapped into the chair or onto the gurney. Burnout is high. Blume found release in music. When his wife gave him an acoustic guitar one Christmas, he rounded up a few musically inclined friends and soon they had a band. They called it The Reprieves.

  When Blume turned fifty, he was still a death penalty lawyer, one of the most prominent in the country, and was teaching death penalty law at Cornell University in Ithaca, New York. “I can’t imagine doing anything else,” he said. “If you care about justice, it’s hard to find a field in which there’s more injustice than the death penalty.”

  Elmore’s case reeked of injustice to Blume. He wasn’t sure why he had given the file to Diana when he was handing out cases to the summer interns. Maybe it was just serendipity, he said years later. Blume didn’t offer much guidance, beyond telling her to look at everything afresh; he had even less of an idea where such looking might lead.

  A few days later, Holt drove out to the Broad River Correctional Institution, on the outskirts of Colu
mbia, announced herself at the gate, and was led by a guard to a common area. Elmore’s name was called, and he came out with a big smile. They sat at a picnic table, in the open air, talking. He was so soft-spoken, so docile, so childlike, that for Diana it was almost “innocence at first sight.” She didn’t see how someone so gentle could commit such a violent crime. Maybe she had been gullible, she thought later. And the more death row inmates she met and represented, the more guarded she was about concluding they were innocent. But her initial belief that Elmore was innocent grew to certitude the more she worked on the case. Diana would never say she favored Elmore over her other clients. But friends and colleagues detected that she had a special place for him in her heart. She spent time with his family, his sisters and brothers, and earned their trust, which wasn’t easy. “My people, they not used to lawyers, but they like Diana,” Elmore said. “She’s family,” said his brother Charles.

  She came to banter easily with Elmore. “You can go out there and get a tan,” she said once during a telephone conversation on a hot summer day. “I think I’m tan enough already,” he said, laughing. When he said he did ten sets of fifty sit-ups each day, Diana responded, “We could put you on a video workout for abs.” He laughed. He liked the teasing. “It’s good to have a sense of humor, because it is so tense, good to have somebody who can break it down and make it a little lighter,” he said.

  Elmore’s home was an eight- by ten-foot cell. It had a stainless steel toilet and basin and a metal bed bolted to the wall; each inmate was given a plastic mat for the bed. There was a window, about six feet high and three inches wide. The door was solid metal, with a covered slot that would slide open for meal trays and a window through which the guards could look when doing the daily count. Elmore was liked and trusted by the guards. His day would begin around 4:30 in the morning, and after breakfast he worked around death row, cleaning the floors and serving meal trays to other men on “the row,” as they called it. He also took food that inmates wanted heated in a microwave to one of the two ovens on the floor. For a few years he had a television in his cell, but when it finally gave out, he didn’t have the money to buy a new one.