Anatomy of Injustice

by Raymond Bonner

  Several of Elmore’s siblings had made the long drive from Abbeville. When they walked into the courtroom, they shook hands with Blume and Jensen. They hugged Diana, who wore a yellow ribbon on her checkered coat. Diana had a warm embrace for Salley Elliott, cocounsel to Don Zelenka on the case. She shook hands professionally with Zelenka. Holt sat at the counsel table between Jensen, in a pin-striped suit, and Blume, in a dark navy suit (during the proceedings she would occasionally hand Blume a note). She had her computer open in front of her; the screen saver was a picture of Justin.

  There are five justices on the South Carolina Supreme Court. Two of them—E. C. Burnett and Jim Moore—had presided over Elmore trials, so they had to recuse themselves. The chief justice, Jean Toal, also recused herself at the last minute, for reasons she never explained. Three substitute justices would be hearing the case.

  The justices filed in and took their seats. Blume stood, walked to the lectern, and addressed the court. His arguments were those that a good defense lawyer would have made at trial (and Anderson had not). How was it possible that the investigators had not taken the sheets from the bed where they claimed to have found Elmore’s pubic hairs? “Do you know how much blood they found on the bed?” he asked. “Not a drop, not a bit.” How could it be that there was no blood on Elmore’s shirt? It should have been covered with blood, given the nature of the crime. How could it be that there was no hair found under the victim’s fingernails, if she had reached up and pulled out his pubic hairs as the state argued so graphically? “Did trial counsel ever point this out?” Blume asked. “No.” He again accused SLED agent Wells of lying about Item T. As for that hair that Wells now admitted was on Item T, “most likely it was the perpetrator’s,” Blume said. That fact alone justified a new trial, Blume argued.

  “Three unfair trials don’t make one fair trial,” Blume said. “The fact that there have been three proceedings or thirty-six jurors, that doesn’t mean a thing in this case because no jury has ever heard the evidence which should be heard, and which must be before a man can be dispatched to death.”

  Blume sat down. To his right, Donald Zelenka stood, buttoning his suit jacket. It was a gesture he always performed when he stood to address a court, “a crutch to focus my attention,” he called it. “There were mistakes in this case,” he conceded quickly. “But those mistakes do not undermine the confidence in the verdict.”

  Justice Costa M. Pleicones interrupted. “There are mistakes in every trial, and we don’t require perfection,” he said. But what about agent Wells’s testimony about Item T, which Wells had said was blue fibers but when tested was found to indeed be hair? “Mr. Blume asserts it is flat out and out perjury,” said Pleicones, who asked more questions than the other justices combined. “I’d like for you to address that.”

  Wells’s report was an “error,” Zelenka conceded, but he had not committed perjury. He went on: “The fact that there is one stray hair that was located on the victim’s body at that time commingled with fibers and commingled with her hair” was not reason to grant a new trial. It was the same “stray hair” theory accepted by Judge Kinard.

  Zelenka turned to the fingerprints. Yes, there were fingerprints in the house that weren’t the victim’s and weren’t Elmore’s. His answer was the same as for the hair. “The fact that another individual’s prints may be in the victim’s house does not turn this case into something that undermines the confidence of this proceeding.”

  Justice Clifton Newman, one of the substitutes, asked about the quality of representation Elmore had received from Geddes Anderson. “Did he challenge any of the state’s witnesses?”

  “No, not really,” Zelenka acknowledged.

  “You concede the quality of representation that Mr. Elmore received was maybe not the best in the world,” Justice Pleicones said. “Are you willing to go further?” Did he concede that it did not meet the requirements set out by the Supreme Court for what constitutes effective representation of counsel?

  “No,” said Zelenka.

  “You’re not willing to concede that?”

  “No.”

  Because the justices had asked so many questions, the chief justice allowed Zelenka a few extra minutes. “But wind it down,” he said. Zelenka finished, Blume was allowed a short reply, the justices rose and left, and the lawyers shook hands and walked out of the courthouse.

  Holt, Jensen, and Blume headed to lunch feeling positive. Townes Jones did not. He thought he had lost. Back in Greenwood, he told the public defender to get set to defend Elmore again.

  From the defense point of view, it was possible for Holt to be almost giddy about the prospects for a new trial. It was exciting to imagine the police and SLED agents cross-examined by Chris Jensen and a more confident Diana Holt. Barry Scheck would do to Earl Wells what he had done to Dennis Fung, the LAPD criminologist whom Scheck witheringly cross-examined for eight days in the O. J. Simpson trial.

  And if Elmore got a new trial, Holt would have a new witness.

  The day she put her son on a plane for Iraq, she had returned home and found two messages on her answering machine. They were from a Kay Raborn in Augusta, Georgia. Holt recognized the name—the Raborns had lived on Melrose Terrace, a few doors from Mrs. Edwards; in her search for witnesses over the years, Holt had never been able to locate them. In her message, Mrs. Raborn said that she and her husband had just watched a Court TV show about the Elmore case. They had moved away from Greenwood many years ago and were surprised to learn that Elmore was still alive, that he had not been executed. They could not let him be executed, not knowing what they knew, she said in the voice message. She didn’t give any details but invited Diana to come to Augusta to talk to them.

  Holt thought the call might be a setup. Was Townes Jones using the Raborns to find out what she was planning? But she was left with so few options to save Elmore’s life that she drove to Augusta. When she got there, she learned it was really Mr. Raborn who wanted to talk to her. He had been on the grand jury that had indicted Elmore. After watching the Court TV show and reading more about the case, he was convinced Jones had misled the grand jury. “The grand jury was never told anything about Holloway,” Raborn said. It wasn’t told that Holloway and Mrs. Edwards might have been having an affair. “If a sexual relationship is brought up, you get into motives right there,” he said.

  There was another, more powerful reason that Raborn had concluded Elmore was innocent. A year or so after the murder, Raborn had run into Charley Webber at a fraternity reunion. Webber was the SLED agent in Greenwood who had turned up at the crime scene and was told by Jim Coursey that he wasn’t needed. “Charley had already put away a few drinks and beers when we spoke,” Raborn said. “He whispered to me, ‘He didn’t do it.’ I asked him, ‘Who didn’t do what?’ He again whispered, ‘You remember, Black Elmo, he didn’t do it.’ ” (The Greenwood cops often referred to Elmore as “Black Elmo,” which infuriated Holt.) “He didn’t elaborate,” Raborn said. “He just wanted to say it, because it was really bothering him.”

  For years, Raborn had kept the conversation to himself. Webber died in 2003. Raborn told Holt he was prepared to testify about what Webber had told him.

  The odds against the State of South Carolina retrying the case were great. So many contentious issues would have to be revisited, some to the embarrassment of the South Carolina justice system. In a new trial, a jury would hear about the Caucasian hair found on Mrs. Edwards’s abdomen, the fingerprint on the underside of the toilet, the absence of blood on the sheets, the failure of the police to take photographs of the bed. It was more likely the state would offer Elmore a deal: plead guilty to manslaughter, which is not a capital offense, and he would be released. How tempting that would be, to have Elmore finally out of jail after twenty-two years. The decision would be Elmore’s. But everyone knew he would follow Diana’s advice. Marta Kahn had no doubt Holt should take such a deal. “In a heartbeat,” she said. She didn’t trust the system anymore; her approach
was to take whatever you can to get your client off death row. But how could Diana let Elmore plead guilty to anything when she was convinced he was completely innocent?

  THE SOUTH CAROLINA SUPREME COURT took only six weeks to issue its ruling, which was faster than most expected, given the complexity of the issues and the likelihood that there would be several opinions. But there were no opinions. There was only the court’s ruling: “We granted a writ of certiorari to review the denial of Petitioner’s application for post-conviction relief (PCR). After thoroughly reviewing the appendix in this case, we find there is probative evidence supporting the findings of the PCR judge. Accordingly, we dismiss the writ as improvidently granted.”

  The court was saying there were no legal issues, that it should not even have agreed to hear the case. It was a puzzling ruling, at best; an unfathomable one to many lawyers.

  “Ain’t that some shit,” said David Bruck, abandoning his usual legal erudition. Rauch Wise called it a “crazy decision.” Elmore would be “the only person in the country executed on the basis of evidence now considered perjury,” he added, referring to Gilliam’s trial testimony.

  Maybe the explanation was that supreme court justices couldn’t find there were constitutional errors when two of their colleagues had handled two of the trials.

  Holt called Elmore immediately. She did not want him to hear the news on the TV or radio, or worse, from a prison guard. How do you start a conversation like this? she worried as she placed the call. She said she was sorry and tried to explain that not only had the South Carolina Supreme Court refused to give him a new trial, but it had simply dismissed his appeal. It was clear Elmore didn’t know what it all meant. You’re not the only one, Holt said to herself. She hung up, emotionally distraught.

  A few minutes later the phone rang. It was Elmore. He said he hadn’t understood her before because he’d been asleep when she called and was groggy. Diana knew it was his way of trying to conceal his intellectual limitations. She again tried to explain. He was dejected, but he said he knew she had done her best for him, he knew she cared about him.

  A few days later, Elmore wrote to his sister, in block letters.

  DEAR PEGGY

  “HELLO” LET ME SAY I APOLOGIZE FOR NOT WRITEING YOU BEFOUR NOW THEY TURN ME DOWN IN COURT REALLY HIT ME IN A DEPRESSING STATE OF A KIND, I’M DOING BETTER NOW GETTING STRONGER EMOTIONALLY AND SPIRITUALLY BEEN PRAYING AND READING MY BIBLE SO”OO I’AM DOING JUST FINE NOW I’LL BE OK, AND YOU SIS HOW ARE YOU DOING? I PRAY YOU ARE IN GOOD HEALTH AND EVERYTHING IS GOING WELL, I MISS YOU EVERY DAY.

  PEGGY I NEED YOUR HELP MY RADIO HAS BROKE COULD YOU SEND ME SOME MONEY TO BUY ANOTHER ONE I’LL APPRECIATED,

  I CLOSE NOW YOU TAKE CARE TELL EVERYONE I” SAID HELLO, LOVE, TULIP.

  Holt filed a petition for rehearing with the South Carolina Supreme Court, a routine step. But being Holt, she added a twist. She wanted DNA testing of the hair the state had said it found on the bed, and of the blood on the shoes and on the blue jeans.

  “It is inconceivable that the respondent would object to definitive DNA testing,” she added. “What is the State afraid of?” She knew the answer, of course.

  Predictably, Zelenka opposed it. Elmore’s lawyers should have made these requests earlier, at the PCR, Zelenka argued. His brief was short, only three pages. At the bottom of page 3, he wrote, “For this reason, the Petition must be denied.”

  Before Holt could cry or curse, she turned to the next page. At its top in bold letters, she read:

  “SLED will complete testing on the hairs recovered from the victim’s bed, the traces of blood found on blue jeans, and the defendant’s shoes.”

  Holt was taken aback. The state was refusing to agree to a rehearing but was agreeing to conduct the DNA testing, which was precisely what she sought in the petition for a rehearing. She wasn’t surprised when the supreme court denied a rehearing. It said nothing about her request for DNA testing.

  Elmore’s execution was set: October 15, 2004, at 6:00 p.m.

  CHAPTER TWELVE

  Denouement

  FOLLOWING THE DECISION by the South Carolina Supreme Court, prison authorities put Edward Lee Elmore in “lockdown,” a kind of administrative segregation that death row inmates are placed under thirty days before execution. His cell had a heavy metal door, with only a small window, and the shutter was closed most of the time. He was allowed out for just an hour a day and then was kept in full chains. This was especially hard on Elmore, who suffered from mild claustrophobia. Diana wanted him back in his cell on death row.

  Two days after the supreme court’s adverse ruling, Holt jumped into her Volvo, sped downtown, and walked briskly into the sixteen-story Strom Thurmond Federal Building on Assembly Street. Designed by the firm of Marcel Breuer, the sixteen-story building has a stark concrete exterior and deeply recessed windows. Holt went to the office for the federal district court and handed the clerk a motion for a stay of execution. She took a seat, “in tears, sweating bullets.” Cases are assigned to federal judges randomly; Holt was nervous about whom she would draw. As the tears welled, she watched the clock—2:40, 2:45, the minutes ticked by. At 3:00 p.m. the clerk informed her the case had been assigned to Judge David C. Norton. George H. W. Bush had appointed Norton to the bench in 1990, on the recommendation of Senator Strom Thurmond, one of the most conservative members of the Senate. Prosecutors liked him. One gave him a 9.7 rating out of a possible 10 on The Robing Room, a website where lawyers evaluate federal judges. “Judge Norton is a fantastic judge and a true gentleman,” the prosecutor wrote. “South Carolina is lucky to have him.” Holt happened to agree. He had granted a stay in an earlier case she had had before him, and her spirits were buoyed by the draw.

  Thirteen days after she’d filed for the stay, Norton granted it. Elmore was back with the general death row population, and Holt had another chance to save his life.

  She turned to the DNA testing. Zelenka had said he would do it voluntarily. Holt was having none of that. She wanted court supervision—Judge Norton, to be precise. Holt and Jensen requested a status conference, which is a meeting of the lawyers with the judge to discuss procedural matters in a case. On the afternoon of December 7, 2004, they arrived at the federal courthouse in Charleston, where Norton sat. The gray granite building is on the corner of Broad and Meeting Streets, on the site of what had been a gallows for public executions during British colonial days.

  “Okay, Ms. Holt, just like Toyota, you asked for it, you got it,” Judge Norton opened the proceedings good-naturedly. “Mr. Jensen, welcome,” he said. It was as informal as a hearing in a federal court could be. “Sit, stand right there, or come up here, whatever you want,” Norton said to Jensen.

  Jensen explained that he and Holt wanted the court to oversee the DNA testing. Jensen assured Norton that he didn’t anticipate any problems, but if there were—such as what would be tested, by whom, using what tests—they wanted to be able to come back to Judge Norton.

  Zelenka listened to the exchange between Norton and Jensen, feeling more like a spectator than a participant. “I am not sure I am in this setting,” he said lightly when it was his turn to speak. He argued that there was no need for Judge Norton to get involved; a state court could supervise. “I thought it would be more expeditious to go through Greenwood,” he explained. Holt was shaking her head.

  “I’m pretty expeditious,” Norton said, smiling. As a legal matter, he added, he wasn’t sure if a Greenwood judge still had jurisdiction over the case now that it had moved into federal court.

  “He has control over the stuff that was involved in the case,” Zelenka said.

  “I have control over the whole thing,” Norton countered.

  Holt was amazed and bemused. It was as if Norton were saying “My army is bigger than yours.” She smiled.

  Zelenka said that the state would test a sample of the hairs found on the bed. Holt’s head jerked in disbelief. She wanted them all tested. She wasn’t about to gamble tha
t the hairs the state chose to test just happened to be Elmore’s while others in the bag might belong to someone else.

  After thirty minutes, both sides said they had nothing more. “Happy holiday,” Judge Norton wished everyone.

  Holt rose. She had one more thing to say: “Mr. Elmore asked me to thank you for granting his stay of execution.” Spectators and court personnel smiled. They weren’t accustomed to hearing such a personal sentiment from a lawyer in behalf of her client.

  “Well, you’re welcome,” Judge Norton said.

  Holt walked out of the courtroom, spirits soaring. Courts usually split the decisions or give the state everything. Here, she was getting everything she wanted. “I wanted to kiss the hem of his robe,” she said, and then enjoy “this piece of justice, however small it is.”

  She soon had another reason to celebrate. “PVT. Holt and the mighty 2–5 Cav made it safely to Kuwait, which means they are almost HOME!” she wrote in a March 2005 e-mail to the families of the men in A Company, 115th Battalion of the Second Regiment of the Fifth Cavalry Division. “Apparently I had muscles clenched that I didn’t even know I owned. We can all exhale now!”

  DIANA WAS FILLED with joy that her son had survived Iraq when she got a call from a very worried Elmore. “Am I next?” he asked. She didn’t know what he was talking about. He explained that Richard Longworth had been executed the previous evening. It was the thirty-third execution since Elmore had arrived on death row, but this one hit harder because Longworth was especially popular. He had been on death row for fourteen years; Elmore had just completed his twenty-third year. He had recently been taken to the hospital with a bad case of emphysema; after ten days, he was returned to his cell with two inhalers and an oxygen tank. Diana assured Elmore that no execution date had been set.