Jensen picked up the questioning: “And why would these garments be given to Mr. Henderson?” he asked Barron.
“I don’t know.”
Barron said he had completed the tests on the blood spots on February 19, which was sixteen days after Henderson had taken them.
How was that possible? Jensen wanted to know.
Barron said he had cut out the spots of blood on the jeans before he had given them to Henderson.
How could he be sure of that? “Is there any record anywhere as to when you removed the stains?” Jensen asked.
“Not in writing, no,” Barron said.
Inexplicably, Jensen and Holt did not call Henderson as a witness. It was many years before they realized the seriousness of their lapse.
DAN DEFREESE WAS the next SLED agent forced to sit uncomfortably in the witness chair, dodging as best he could the questions Jensen aimed at him. He was the fingerprint expert who had testified at Elmore’s trial that he had found only six prints in the house: one was Elmore’s (found by the back door), and two belonged to Mrs. Edwards. The other three, he wrote in his report and testified at Elmore’s trial, had “insufficient ridge detail for comparison,” which meant they could not be matched to known prints.
Jensen was about to give Holt a course in the art of cross-examination. It is like building a corral, each question making it harder for the witness to escape. There is also a bit of stealth; the first questions are easy, to relax the witness, to not let him know what is coming.
“You testified at your earlier trials that in your experience as a fingerprint identification expert, that you considered that you could make an identification if you had ten points of comparison; is that correct?” Jensen asked.
“Yes, I think I said that ten was about my minimum number.”
Jensen showed DeFreese blowups of two prints that DeFreese had lifted from the back door.
“Now, in looking at those two enlargements, can you tell me whether or not you see in those two pictures at least ten points of possible identification?”
“In one, yes, sir, I do.”
But hadn’t he written in his report that these prints were insufficient for analysis?
DeFreese hedged. “I believe that’s correct, yes, sir.”
Only “believe”? Jensen picked up a copy of DeFreese’s report from the heavy counsel table and read from it: “Latent impressions were found to contain insufficient ridge detail for comparison.”
“What does it mean when you say ‘insufficient ridge detail’?” Jensen asked.
“That would mean that it did not contain sufficiently clear or sufficiently numerous details within the latent impression for analysis.”
“Would you now agree with me that that observation that you made in your report was not accurate?” (“Not accurate” was Jensen’s decorous lawyerly way of saying “false.”)
“With regard to one of those, yes, sir, I would.”
Jensen tacked. “Is it your testimony that there’s less than ten points of detail here that could be used for comparison purposes?”
“No, sir, I think I just said that there are at least that many.”
“Then why would you say that this was insufficient ridge detail for comparison purposes?”
“I don’t know. Evidently I was incorrect.”
DeFreese, who had joined SLED in 1967 while a sophomore at the University of South Carolina, wasn’t doing well.
Jensen turned to the prints DeFreese had lifted in the bathroom. At Elmore’s trial, DeFreese testified that one found on the underside of the toilet seat had insufficient ridge detail for comparison purposes. Jensen showed DeFreese a photographic blowup of that lifted print. “What do you see there?” he asked. “What kinds of prints are those?”
DeFreese didn’t answer, as if by waiting he could make Jensen go away.
“I’m just asking if they’re palm prints or fingerprints,” Jensen said.
“They are most likely fingerprints.”
“Would it be fair to say that they most likely are the tips of the fingers?”
“They certainly could be, yes, sir.”
“And in that picture in at least one of those fingertips, do you see ten points of possible comparison?”
Again, DeFreese wanted to avoid having to answer. He’d just had to admit to one “incorrect” report. He knew what was coming. Jensen waited. Finally, DeFreese said, “Only by using the greatest amount of imagination. I don’t see in either one of these ten really good points. If you wanted to imagine some things being there, I suppose you could get ten.”
Jensen continued tightening the circle around DeFreese. The print that had been found outside on the door, which DeFreese now admitted had enough points for identification, and the one on the underside of the toilet seat, which he acknowledged might have—had DeFreese compared these two with Elmore’s?
Yes.
“Well, if you had compared these prints with Mr. Elmore’s prints and found that they matched, would you have recorded that in your report?”
“I would have.”
So they weren’t Elmore’s. Why hadn’t he put that in his report?
“Either it was improperly recorded by me or someone else, or as is the case with the superimposed print, I could not absolutely eliminate the possibility that Mr. Elmore may have contributed to it.”
It was becoming clear to Holt why on Tuesday, January 19, 1982, Sergeant Owen had not taken Mrs. Edwards’s body from the autopsy to the mortuary, which is the customary routine, but rather had delivered it to SLED. They needed to get Mrs. Edwards’s fingerprints to determine if the ones found by the back door and in the bathroom were hers, since they weren’t Elmore’s.
Jensen now asked DeFreese, if the prints found on the outside door and the underside of the toilet seat had matched Mrs. Edwards’s, would he have recorded that?
Yes, said DeFreese.
Holt was barely able to contain her disbelief or control her exhilaration: a back-door print that didn’t belong to Elmore or Edwards, a print on the underside of the toilet seat that didn’t belong to either of them.
When Jensen finished with the SLED agent, Zelenka had some questions for him. He appeared to be as incredulous as Jensen, as well as being unprepared for DeFreese’s answers.
“You didn’t find that these prints matched?” Zelenka asked.
That is what DeFreese had just testified. But he was so shaken that he told Zelenka he didn’t understand the question. “I’m sorry, sir?”
“You didn’t find that the prints matched the victim or the defendant that you have been discussing, is that correct?”
Again, DeFreese said, “I’m not sure I follow your question.”
The prints he had just testified about, the one by the back door, the one on the underside of the toilet seat, the ones he said were not the defendant’s or the victim’s, Zelenka explained.
“Right, I did not find that they matched the defendant or the victim, no, sir.”
When Zelenka finished with DeFreese, Jensen had another opportunity, and he wanted to drive the point home, to be sure it had registered with Judge Kinard.
“Is there any doubt in your mind at all that these are not Mr. Elmore’s prints?” he asked DeFreese.
The SLED agent couldn’t bring himself to say no, so he put it obliquely: “If I had found Mr. Elmore’s prints there, I would have said so.”
How could they lose now? Holt thought. A state investigator had admitted to submitting an “inaccurate” report—false or fraudulent, in Holt’s view, it didn’t matter—and having “improperly recorded” another finding. Wasn’t this prosecutorial misconduct? Furthermore, the prosecution is required under the Constitution, as interpreted by the Supreme Court in Brady v. Maryland, to turn over all potentially exonerating evidence to the defendant. Wasn’t it a violation of Brady for the state not to have told Elmore that a fingerprint on the toilet in the victim’s bathroom wasn’t his or the victim’s? The state had
not only failed to turn over the evidence, it had, Holt now realized, essentially dissembled in order to hide it when DeFreese claimed there were not enough details for comparison when in fact there were.
Somewhat mischievously, when discussing the case with friends, Holt would ask: When men urinate, how do they lift up the toilet seat? Who had been in Dorothy’s private bathroom? She had a pretty strong suspicion.
It is elementary criminal investigation procedure to compare fingerprints found at the scene to those of individuals known to have been in the house legitimately, in order to eliminate those individuals as the source of the prints. Given that DeFreese had found at least two prints that didn’t match Elmore’s or Edwards’s, had he taken prints of anyone else, asked Jensen, such as Mr. Holloway, to eliminate him as the source of the prints?
“No, sir, I didn’t, and none were submitted,” said DeFreese.
Holt and Jensen were disassembling the state’s case, bit by bit, exposing incompetence, negligence, or worse. What happened to that footprint at the back door, the one the first officer on the scene, Charles Holtzclaw, had noticed immediately and had pointed out to the next officer, who had covered it to protect it? There was no evidence that the police matched it to Elmore’s shoes. Was it Holloway’s? Since the police never suspected him, they didn’t try to match it to his shoes. A potentially critical piece of evidence vanished from the police investigation. Likewise, the bloody shoe print on the blue carpet in the dining room, the one Sergeants Owen and Johnson had recorded seeing, hadn’t been cut out and taken for testing.
But it was the sherry bottle on the kitchen countertop that obsessed Holt. She knew it had been dusted for fingerprints—she could see the fingerprint powder on it in the SLED photographs—but it had vanished. It was not on SLED’s list of examined items. It was never mentioned at any of Elmore’s trials. That made Holt very suspicious. She was confident that if Elmore’s fingerprints had been found on the bottle, the state would have screamed the results. Again, she had a pretty good idea of whose fingerprints were on that bottle, and again, there was no forum for her to vent that suspicion.
HAIR ON THE BED, REVISITED
IN THE HANDS of SLED agents, potentially exonerating evidence seemed to have inexplicably been lost. Damning evidence, on the other hand, miraculously was found.
At Elmore’s trials, SLED agent Ira Byrd Parnell testified that he had collected hairs from Mrs. Edwards’s bed, spread over an area of about thirty inches by eighteen inches. Wells testified that they were Elmore’s. In his closing argument, Solicitor Jones was graphic: “When he put his part of his body into the part of her privates, it was so repulsive to the lady that she, then, grabbed down there for the first time and came out with forty-something of his pubic hairs.”
“It was the most convincing element in the whole trial,” said Ganza Bryant, a twenty-eight-year old alternate juror in the first trial and an African American who had been in the first class to integrate Greenwood High. “How does my pubic hair get there unless you’ve been there? I may do work for her, but for my pubic hairs to get there I had to have slept with her or done something.”
“That’s what convicted him,” said a juror from the second trial.
Holt ridiculed Solicitor Jones’s version of what happened. It was preposterous to believe that Mrs. Edwards, exhibiting “superhuman strength for a battered and bloodied woman of advanced years,” managed to reach up “and pull with enough force and grip to rip out over forty hairs from her assailant’s pubic region, without getting any of the hair particles under her fingernails,” Holt said, “or anywhere on her sticky, bloody body, or on her sticky, bloody robe.”
As Jensen and Holt drew out the contradictions, inconsistencies, and impossibilities in the state’s “hair-on-the-bed” evidence, it was the legal equivalent of watching people climb out of a phone booth—they just kept coming and coming. The number of hairs alone that the state claimed to have found made Holt suspicious. Forty-some hairs at a rape scene? If true, it belonged in the Guinness book of world records. Preposterous, said Hayward Starling, the veteran North Carolina investigator. He usually found only two or three at a rape scene, he said. “Most I’ve ever found, as I recall, were six or eight, and I considered it a field day.”
The testimony of the state’s own critical witnesses belied anything having happened on the bed. “The bedcovers were folded down as if somebody was folding the cover down to get ready to go to bed,” Johnson testified at Elmore’s trial. “The bed had been used and folded—it looked like put back together, or made ready for bed again,” Jimmy Holloway testified. He hadn’t noticed any wrinkles or indentations, he said, answering a question from Solicitor Jones. Jones didn’t like what he was hearing from his witness. “You’re not saying that there were no wrinkles or indentations in the bed covers, just that you don’t now recall having seen such?” Holloway was clear. “I have a photographic memory of what I saw there.”
Holt laughed when she thought about the state’s theory: after sexually assaulting Mrs. Edwards, Elmore murdered her, dragged her into the closet, then came back and made the bed (as well as spending several hours cleaning the house, washing the dishes, and putting the tongs in the drawer).
Jensen poured more doubt on the state’s hair-on-the-bed evidence through his cross-examination of SLED agents DeFreese, Parnell, and Wells, who couldn’t keep their stories straight.
DeFreese and Parnell had photographed the crime scene. Four rolls of film—three Kodacolor II, one Plus-X—each twenty-four exposures, ninety-six pictures in all. They photographed the kitchen, where there was evidence of a struggle, and the den, where the state said Mrs. Edwards had been watching television when her murderer forced his way into the house. They even took photographs of the guest bedroom—including the bed—where nothing had happened, where nothing had been disturbed, where no evidence was found.
But neither agent took a picture of the victim’s bed, where the violent sexual assault was said to have occurred. There is a photograph in which the bed is visible, but only the bottom two-thirds. And there is camera gear on it. On this supposedly prime piece of evidence, the SLED agents had dumped their camera bodies, lenses, and bags.
Thirteen years after the first trial, the state realized that the absence of any photographs of the bed was a problem and that Elmore’s lawyers would exploit this. In the manner of all good trial lawyers, Zelenka sought to mitigate the damage by getting the information out himself, as if there were nothing to hide. Why didn’t Parnell take a picture of the bed and of the hairs he said he’d found on it? Zelenka asked him at the PCR.
“It was an oversight on my part,” Parnell said.
Did you take the sheets as evidence? Zelenka asked.
No.
Why not?
“There were no obvious blood or other stains present,” Parnell said. “Nothing of evidentiary value on them.”
When it was Jensen’s turn to cross-examine Parnell, he wanted to underscore that the SLED agents had not taken the sheets, which, unless they were grossly incompetent, cast serious doubts on whether anything had happened to Dorothy Edwards on that bed.
“You testified that after inspecting these sheets, that you decided there was nothing of evidential value on the sheets, so you didn’t collect them?” he asked Parnell.
“That’s correct.”
“Is it conceivable that a microscopic or chemical examination might have revealed something on the sheets that you didn’t see?”
Parnell was categorical: “I saw nothing else that could have been examined.”
Jensen kept asking the question in varying ways. Parnell kept saying there was no reason to take the sheets because there was nothing on them. “We examined the sheets visually. We did not see any stains of any kind.”
No blood on a bed where a violent rape had occurred? The explanation must be, Holt would say mockingly, what Solicitor Jones had said in his closing argument to the jury: “She could have been swallowing the
blood.”
Parnell insisted he had found hairs on the bed, put them in a plastic baggie, and written on it.
Jensen turned to that. When they went through the house gathering evidence, Parnell and DeFreese had placed each item they collected into a bag and affixed a SLED label:
This tag was on every piece of SLED evidence the state introduced at Elmore’s trials—including pliers, dentures, TV Guide, calendar, checkbook—except for the bag with the hair Parnell said he’d found on the bed. There was no label on that bag. Instead, on the baggie in which Parnell said he had put the hairs he found on the bed he had written directly:
1-18-82 Greenwood, S.C.
209 Melrose Terrace
Dorothy E. Edwards res.
Hairs removed from bed by this examiner.
Why didn’t he use a label on this bag? Jensen asked Parnell. First, in a non sequitur, he said that he hadn’t affixed a label because he had been the one who had found the hairs and put them in the bag. Jensen pointed out that Parnell had put labels on other pieces of evidence he had found. Parnell responded with another non sequitur: “There’s also one in there that Mr. DeFreese did, that I didn’t do.”
Jensen kept at it. Why was it that this one particular exhibit, the ziplock bag of hair, didn’t have one of those labels on it?
“Are you talking about the physical label itself?” Parnell answered.
“Yes, it didn’t have a label like the other exhibits. It just had some handwriting on the outside of the plastic bag?” Jensen noted.
“It was something I could write on, as opposed to writing on something else that would possibly mess up a fingerprint or whatever might have been on it,” said Parnell.
That didn’t work either. All the exhibits were in plastic bags, so Parnell could have written directly on any of them.
Anatomy of Injustice Page 21