The Supreme Court in Herrera, however, left open the possibility that a defendant’s claim of innocence might entitle him to a new trial. But it would require “a truly persuasive demonstration” of actual innocence, and the threshold for making the claim was “extraordinarily high,” the court said. Maybe impossibly high. Not even contradictory statements by prosecutors about who committed a murder were enough.
Jesse Dewayne Jacobs was arrested for killing Etta Urdiales, the wife of his sister’s boyfriend, who had been abducted, taken to the woods, placed on a sleeping bag, and shot in the head with a .38. Jacobs confessed to the police. But at trial, he said that in fact his sister Bobbie Hogan had killed Urdiales. The jury found Jacobs guilty and sentenced him to death. Several months later, the State of Texas charged Hogan with the murder. Now the prosecutor, the same man who had prosecuted Jacobs, told the jury that the state had been wrong in saying Jacobs had killed Urdiales. After further investigation, he said, he had concluded that Hogan had in fact committed the crime. The jury convicted Hogan of involuntary manslaughter.
Jacobs sought a new trial, arguing that the state was now saying he had not killed Urdiales, that it had, in effect, disavowed the evidence on which it had convicted him. The U.S. Supreme Court declined to take the case, 6–3. “I find this course of events deeply troubling,” said Justice Stevens, who voted to hear the case. “It would be fundamentally unfair to execute a person on the basis of a factual determination that the state has formally disavowed.” Jacobs was executed on January 4, 1995.
The Jacobs case is not unique. In Texas, James Lee Beathard was executed, in 1999, for the murder of Gene Hathorn Sr., his wife, and their fourteen-year-old son while they were watching television in their mobile home in East Texas. No physical evidence connected Beathard to the crime—no fingerprints, no footprints, no blood. He was convicted largely on the testimony of an accomplice, Gene Hathorn Jr., who harbored a deep hatred of his father and thought he would inherit under his father’s will. “Hathorn might be a cold-blooded killer, but there hasn’t been any evidence in this courtroom that he is a liar,” the prosecutor, Joe L. Price, said during his closing argument at Beathard’s trial. Several months later, the prosecutor tried Hathorn, who again pinned the blame on Beathard. Now, in his closing argument to the jurors, Price said that if they believed Hathorn, “I’m a one-eyed hunting dog.” Hathorn was also sentenced to die. (His conviction was eventually reversed by the Texas Court of Criminal Appeals, and in a plea agreement, he was sentenced to life in prison.)
IT IS EASIER for a camel to pass through the eye of a needle than for a condemned man claiming innocence to get a new trial.
In Missouri, Joseph Amrine, in jail for robbery, was convicted and sentenced to die for killing an inmate. There was no physical evidence linking Amrine to the murder, but three prisoners testified that he had told them that he had killed the man. All three later recanted, and a prison guard said that the real killer was one of the inmates who had fingered Amrine.
The state refused to give Amrine a new trial. He’d had his day in court. “I tend to defer to the twelve people who sat in the jury box and looked at the witnesses in the eye,” said Missouri attorney general Jay Nixon (who later became the state’s Democratic governor). “This case has been reviewed by many good judges.” That was the state’s mantra in death penalty cases: the jury has decided; judges have reviewed it; how can there be any question that the man is guilty? In Elmore’s case, state officials argued it was three judges and three juries who had decided.
When Amrine’s case reached the Missouri Supreme Court, Nixon’s office argued that a claim of innocence did not justify a new trial. This is what the Supreme Court had said in Herrera. During oral argument, Justice Laura Denvir Stith was judicially incredulous.
“Are you suggesting if we don’t find there’s a constitutional violation and if even we find that Mr. Amrine is actually innocent, he should be executed?” she asked the state’s lawyer.
“That’s correct, Your Honor,” he answered.
Another justice, Michael Wolff, was equally disbelieving.
“To make sure we are clear on this, if we find in a particular case DNA absolutely excludes somebody as the murderer, then we must execute them anyway, if we can’t find an underlying constitutional violation at their trial?”
“Yes, Your Honor.”
The justices of the Missouri Supreme Court could not accept that. “It is difficult to imagine a more manifestly unjust and unconstitutional result than permitting the execution of an innocent person,” the court said. Relying on Missouri law, not the U.S. Constitution, it overturned Mr. Amrine’s conviction and ordered a new trial.
Missouri prosecutors were not ready to give up. They wanted to perform DNA tests of the blood on Amrine’s clothes to see if it was the victim’s. Earlier, Amrine’s lawyer, Sean O’Brien, a passionate and effective advocate for death row inmates, had asked the state for the clothes so that they could do just that. The state said that the clothes had been destroyed. Now, miraculously, they were found. Ultimately, the state realized it didn’t have a case, and Amrine walked out of prison after serving eighteen years for a crime he didn’t commit. Elmore’s case looked a lot like Amrine’s.
HOLT AND JENSEN knew that they were facing the Herrera barrier: To get a new trial for Elmore, they had to do more than present evidence that he was innocent. They had to establish that his constitutional rights had been violated.
One of their arguments continued to be that Anderson and Beasley had represented Elmore so incompetently that he had been denied his right to counsel as guaranteed by the Sixth Amendment. It is an argument frequently advanced by lawyers representing death row inmates in their appeals. It is a difficult argument to win. “Judicial scrutiny of counsel’s performance must be highly deferential,” the Supreme Court declared in 1984, in Strickland v. Washington. There is “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” it went on.
It doesn’t take much for judges to find that the Strickland standard has been met, that the representation has been adequate. “The Constitution, as interpreted by the courts, does not require that the accused, even in a capital case, be represented by able or effective counsel,” a Fifth Circuit Court of Appeals judge declared in one case. “Consequently, accused persons who are represented by not-legally-ineffective lawyers may be condemned to die when the same accused, if represented by effective counsel, would receive at least the clemency of a life sentence.” A Texas court trial judge went further: “The Constitution doesn’t say the lawyer has to be awake.” Or sober.
In North Carolina, Thomas Portwood relieved the pressure of handling capital cases with a fifth of 80-proof rum most nights, even during trial. He swore it didn’t affect his performance. One of his clients, Ronald Frye, was convicted and sentenced to death for stabbing his landlord with a pair of scissors. As with most capital cases, there was no question of Frye’s guilt; the issue was whether he should be executed. The story of Frye’s life was numbingly similar to the stories of a great many men on death row—poverty, child abuse, alcoholic parents, limited mental abilities. When he was a small child, his mother gave him and his brother to a couple she met at a gas station. The man was an alcoholic; he bullwhipped the boys regularly and forced them to whip each other as he watched. When Frye was taken from the couple’s custody, at age eleven, he went to live with his biological father and his second wife. His father forced him to watch as he beat his wife. As a teenager, Ron Frye was heavily into crack and alcohol, and he suffered migraine headaches and delusions. Portwood presented none of this to the jury.
On appeal, Frye’s lawyers argued that he had been denied effective assistance of counsel because Portwood had been drunk. A federal district court disagreed. There was no indication that “Portwood’s performance was impaired by his addiction,” the judge wrote. The U.S. Supreme Court turned down Frye’s appeal.
Frye was
strapped to a gurney. “I’m sorry,” he said to the nephews of the man he had killed, who came to witness the execution. “Forgive me.”
IN ELMORE’S CASE, South Carolina vigorously defended the representation that Anderson and Beasley had provided. “It revealed a quality of justice which I think is appropriate in this state, a hard-driving defense,” the state’s lawyer, Donald Zelenka, told Judge Kinard during Elmore’s PCR. Beyond that, he went on, “we submit that this case will stand for the proposition that we in South Carolina do have a system of justice that we can stand behind. We do have quality representation by members of the bar.” He defended the prosecutors as well. “We do have honest and ethical and justice-seeking decisions by the prosecutors of this state, particularly William Jones and Townes Jones.” Holt kept a lawyerly poker face.
Zelenka couldn’t resist a barb at the lawyer from New York and at Holt, who had lived in South Carolina only a year or so. “I regret that sometimes people from outside the state don’t understand or really recognize all the communities in which we live in this state and the ability of attorneys who practice law in this state, the prosecutors who have been involved in this state to separate and seek justice, not just seek somebody to be convicted.”
Holt, sitting only a few feet away, felt like saying, Excuse me, Mr. Zelenka, aren’t you from Ohio?
Yes, indeed. Donald John Zelenka was born and raised in Akron; his father was a mechanical engineer with Ohio Edison. After Firestone High School, where he’d worn his blond hair fashionably collar length, in the early 1970s, he studied economics at Ohio State, where he was a member of the Interfraternity Council and played trombone in the marching band. He moved to South Carolina for law school, impressed by USC’s faculty and clinical programs as well as “the big-time USC sports with Frank McGuire’s basketball and Paul Dietzel’s football teams.” But in his heart he remained an Ohioan, as much as Holt did a Texan. He returned each year for the Ohio State–Michigan football game and played slide trombone in the alumni band. Decades after moving to South Carolina, his favorite football teams were still the Ohio State Buckeyes and the Cleveland Browns; the Cleveland Orchestra (along with Bruce Springsteen and Cat Stevens) made his favorite music.
During law school, labor relations and employment law were the courses he enjoyed the most. He finished in the top third of his class and went to work for the federal court in Richmond, Virginia, doing computerized research, a relatively new phenomenon. Persuaded by friends, he returned to Columbia and went to work in the attorney general’s office; he was twenty-seven, with his hair still long but thinning. He had found his calling, and by the time of Elmore’s post-conviction review, he was in charge of the capital litigation unit—and balding.
He appeared several times before the United States Supreme Court, arguing on behalf of the state that a man’s conviction and death sentence be upheld. He became an unexpected footnote in history due to one case, Holmes v. South Carolina. Bobby Lee Holmes was convicted of the rape, robbery, and murder of an eighty-six-year-old woman. The trial lasted four days. The prosecution introduced Holmes’s palm print, which had been found at the scene; fibers from his sweatshirt were found on the victim’s bed; her DNA turned up in his underwear; her blood on his tank top. Holmes maintained he was innocent, and his attorney, William Nettles, who would become U.S. attorney in South Carolina, sought to introduce evidence that another man had committed the crime. The trial court excluded the evidence of a potential third party’s guilt. John Blume represented Holmes before the U.S. Supreme Court. He argued that the trial court’s exclusion of the evidence violated the defendant’s constitutional right to a fair trial. Zelenka argued that the prosecution’s case was overwhelming, and that a defendant’s right to introduce evidence was “not unlimited” but was subject to “reasonable restrictions.” Near the end of his allotted time for oral argument, Zelenka was interrupted by a question from Justice Thomas, about the standard the court was to apply. It was a notable moment and was to become more so. Justice Thomas did not often speak from the bench, and this question, in 2006, was the last he asked for more than five years, the longest any justice had gone without asking a question for at least forty years. At issue in Holmes was an evidence rule under which a defendant may not introduce evidence that another person had committed the crime in question when the court felt that the prosecution had presented a strong case of guilt. States have wide latitude in establishing rules of evidence, but there are limits, the court said. And this rule, Justice Samuel Alito said for a unanimous court, denied the defendant “a meaningful opportunity to present a complete defense,” and was therefore unconstitutional. (Following the Supreme Court’s decision, Holmes was sentenced to life without parole.)
Zelenka was uncompromising in his support for capital punishment. A woman who had an abortion in the third trimester was guilty of murder and should be executed, he argued in one case. He was disappointed when the Supreme Court ruled in 2005 that executing a person who was under eighteen when he committed the crime he was being punished for was barred by the Eighth Amendment. The decision, in Roper v. Simmons, overturned the court’s contrary ruling issued only sixteen years earlier. At the age of seventeen, and a junior in high school, Christopher Simmons planned to commit a burglary and murder “in chilling, callous terms,” Justice Anthony Kennedy wrote for the five-person majority. Simmons assured two accomplices they would get away with it because they were minors. They broke into Shirley Crook’s house at two in the morning, put duct tape over her eyes and mouth, tied her hands, put her in a minivan, and drove her to a state park, where they threw her from a railroad trestle into the Meramec River, in eastern Missouri. However horrific the crime was, the majority held that “the death penalty is a disproportionate punishment for juveniles.” Capital punishment must be limited to those whose “extreme culpability makes them the most deserving of execution,” the court said, citing an earlier Supreme Court case. A juvenile offender does not fit this category, the court said. For one thing, “as any parent knows,” Justice Kennedy wrote, juveniles lack the maturity and sense of responsibility of an adult.
Kennedy went on to say that the court, over the many years of ruling on death penalty appeals, had recognized that there were two purposes served by capital punishment: retribution and deterrence. “Whether viewed as an attempt to express the community’s moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult,” Kennedy wrote. “Retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity.” As for deterrence, “it is unclear whether the death penalty has a significant or even measureable deterrent effect on juveniles,” Kennedy wrote.
In reversing its earlier ruling that it was permissible to execute juveniles, the court looked at the “national consensus” and “evolving standards of decency,” which were tests for interpreting the Eighth Amendment, the majority said. Thirty states prohibited execution of minors, the court noted: twelve rejected the death penalty altogether, and eighteen states that had the death penalty exempted minors. Finally, the majority noted, “the overwhelming weight of international opinion is against the juvenile death penalty.”
Justice Scalia dissented, joined by Chief Justice Rehnquist and Justice Thomas. A “strict constructionist” who looked to the Founding Fathers’ “original intent” in deciding cases, Scalia declared that the Constitution hadn’t changed from when the court had earlier ruled that the Eighth Amendment did not prohibit the execution of juveniles. He had no use for the concept of interpreting the Constitution by looking at “evolving standards of decency.” He was most disdainful, however, of the notion that the United States should consider the views of other nations. “The Court thus proclaims itself sole arbiter of our nation’s moral standards—and in the course of discharging that awesome responsibility purports to tak
e guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent,” Scalia wrote.
IN HIS OPENING STATEMENT at Elmore’s PCR, Zelenka reminded Judge Kinard that Elmore had been convicted and sentenced by three juries. “Those jurors, the State of South Carolina, the jurors of Newberry County, candidly are looking to Your Honor to ensure that justice will continue to be done in this case.” After law school, Kinard had practiced with a small firm in Camden, some forty-five miles east of Columbia, where he was active in St. Timothy’s Lutheran Church, a member of the Camden Country Club, and secretary of the Camden Charity Horse Show. Jensen found Kinard to be gracious and patient, displaying none of the resentment toward the out-of-town lawyer that Jensen had felt in other jurisdictions where he had appeared.
“I recognize the burden on Mr. Elmore and his counsel to convince me that errors occurred which would mandate a new trial,” Kinard said after listening attentively to Jensen and then Zelenka. He told the lawyers he had the transcripts from the three trials, which he would read. But for now, at the PCR, he would listen to the evidence offered by Elmore’s lawyers “like I was a jury or sitting here from ground zero.” That was just what Holt and Jensen wanted.
THE GIRLFRIEND, REVISITED
JENSEN CALLED his first witness, Elmore’s ex-girlfriend, Mary Alice Harris. (She had remarried, so her last name had changed.) She was still a clerk at Kmart.
A colleague of Holt’s at the Death Penalty Resource Center who had been helping with the appeal, Tony Miles, conducted the questioning. A twenty-seven-year-old African American, Miles was the son of a prominent civil rights activist from the 1950s and ’60s, Elijah Walter Miles. After graduating from Boalt Hall law school at the University of California, Berkeley, Tony had joined the resource center in Columbia. (He left the center a few months after the hearing, moving to Washington, D.C., to work in the federal public defender’s office.) Miles directed Harris to the evening of January 16, 1982, the night the state said Mrs. Edwards had been murdered, the night that Elmore had shown up at Mary’s apartment, where he wasn’t wanted, and, in anger, had ripped off his shirt, which she then threw away. Her testimony was the same as it had been at Elmore’s trials.
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