Anatomy of Injustice (27 page)

Did SLED have any policy to seal exhibits with evidence tape so they couldn’t be removed from the package? Jensen asked.

No.

Did Barron seal the package after he received it?

There was no record that he had, answered Barron.

“So we have no way of knowing how many times that garment was taken out of the bag and put back into the bag?” Jensen asked.

“No.”

Jensen was improvising, reacting to answers to ask more questions, trying to build a narrative. It was a bit like writing a novel in which the author isn’t sure where the plot and characters will take the story. But this was not fiction, and disbelief was being stacked on top of incredulity—evidence not sealed, no record of how often it was in and out of the bag. There was also the question of where the blue jeans had been after they arrived at SLED.

While Jensen was questioning witnesses, Holt would often be looking through filing boxes they had brought to court, which contained a mishmash of documents, including those that the state had turned over to them prior to the PCR, as it was required to do. When Barron was on the stand, Holt came upon a document they hadn’t noticed before—four pages long and handwritten. It was a list of the state’s exhibits, ninety-eight items altogether. To the right of each item was a series of initials of the police officer or SLED agent who’d had possession of the item. This was the “chain of custody” prepared by Solicitor Jones, who knew that he would have to be able to account for
where every item of evidence had been from the time it was taken by the police until it was introduced at trial. The state must do this to rebut any suggestion that the evidence has been planted or tampered with—innocently, negligently, or intentionally. A judge may exclude evidence if he is not satisfied with the chain of custody.

Item 86 on the list was Elmore’s coat; item 87, his pants. To the right of each item were names and initials:
Van, Earl, J.B., Tom, JTC, Dickenson, Earl, J.B
.

Translation: Detective Vanlerberghe, who had taken the jeans from Elmore’s mother’s house on the day he was arrested, had delivered them to Earl Wells, head of the forensics department at SLED, who had given them to John Barron for testing. From Barron they had gone to SLED agent Tom Henderson, who had given them to Greenwood police captain James Coursey, who had given them to Greenwood police detective Perry Dickenson, who had given them back to Earl Wells, who had returned them to Barron.

What the hell is this? Holt said to herself. Why had the jeans passed through so many hands, and who had done what with them? One name in that chain leaped out: Tom Henderson. He was the SLED agent who had volunteered to work on the case, who had concluded within a day or two of the murder that Elmore was guilty, who had claimed that Elmore had said to him, “If I did it, I don’t remember.” Henderson, as much as any single individual, had sent Elmore to death row.

SLED records showed that Henderson had taken the shoes, blue jeans, and coat out of the lab on February 3, and there is no record of how long he had them, or of why he gave them to Coursey instead of back to the SLED lab, or of why he had them in the first place. When Henderson took the jeans from the lab, he was no longer involved in the case, had no role in any of the forensic analysis. Of the ninety-eight items on the list, Henderson had taken only Elmore’s blue jeans, coat, and shoes.

When Holt realized what she had found, she whispered excitedly to Chris. By this time, Judge Kinard was used to Holt whispering to Jensen, though he didn’t know that she was usually
telling him what question to ask next. The judge waited patiently while the two lawyers conferred.

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.

D
AN
D
EFREESE 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.

I
N 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.”