Anatomy of Injustice (29 page)

A few days after the crime, after Elmore had been arrested, the Greenwood deputy coroner, Grady Hill, prepared a one-page report summarizing developments. It was neatly written in longhand.

In all this detail, there is no mention of any hairs being found on Mrs. Edwards’s bed, nothing about Earl Wells alerting the police to look for someone with reddish-black hair, which would have been a more persuasive reason to arrest Elmore than a canceled check and fingerprint, which had innocent explanations.

A few weeks after that, there was a preliminary hearing in Magistrate’s Court. Anderson and Beasley questioned whether there had been probable cause to arrest Elmore. Lt. Lee Moore, liaison officer between the department and the court, was sworn in. In answer to questions, he testified about how Coursey and the SLED agents had gone to the scene, 209 Melrose Terrace, and gathered evidence. They had found evidence of the check to Elmore and the fingerprint by the back door. Elmore’s fingerprints were on file at the police department because of his earlier arrests on domestic violence charges; they were sent to SLED, which said the one found by the back door matched his. This was the basis for arresting Elmore, Lieutenant Moore said.

“I would like to ask you right now, what else do you have other than what you’ve said?” Beasley had asked.

“I don’t know anything other than what I’ve given you,” Moore replied. “But I think that’s probable cause, because of the check and because of his prints found there because the matchup was positive.”

After Elmore had been arrested, the police had taken pubic and head hairs from him, Moore explained.

“Do you know if any were found there at the house?” Beasley asked.

“No, sir, not to my knowledge.”

It was hard to be more definitive than that. That was March 25.

Three weeks later, at Elmore’s trial, the hairs made their first appearance, when Parnell testified he’d picked them off the bed and Wells testified that he’d examined them and they matched Elmore’s.

Earl Wells was the last witness at the PCR. Now Holt went to work marshaling the testimony into a legal brief.

A
T THE CONCLUSION
of the PCR, Holt and Jensen were convinced that no hair had ever been found on the bed. In a word, it had been planted. The hairs supposedly found on the bed were those that Greenwood police captain Coursey had yanked from Elmore the morning he was arrested. Elmore’s lawyers now thought they had a broader picture of what had happened. By the afternoon of January 19, the state realized it didn’t have much of a case against Elmore. It had only one fingerprint from the scene that was Elmore’s, and that could have been put there when he was cleaning Mrs. Edwards’s gutters and windows. There were three fingerprints that weren’t his, and after Mrs. Edwards’s body had been brought to SLED, the state knew that those fingerprints weren’t hers either. Thus, the state had to come up with evidence to implicate Elmore, and, Holt concluded, this was why Coursey had pulled out so many hairs.

“M
ISCOUNTED
, mishandled, mischaracterized, and misrepresented”—that is how Holt sought to discredit the state’s hair-on-the-bed evidence.

The language was contained in the “Applicant’s Post-Hearing
Memorandum of Law in Support of the Amended Application for Post-Conviction Relief.” Amid the 241 pages of legal arguments, bolstered by case citations and footnotes, Holt stirred in some spicy scorn and sarcasm.

“To accept the state’s version of events, one has to suspend logic and reason, and believe the least likely explanation for virtually every piece of evidence,” she wrote. “Edward Elmore, 5′7″ tall, weighing 145 pounds, killed Mrs. Edwards, who bled to death, picked up her 130-pound bloody, slippery body and secreted her body in a closet with a boot between her knees. He put the tongs back in the kitchen drawer, stepped one foot in the pool of blood then hopped on the other foot all the way through the house, out the back door and down the steps, before finally stepping down with his bloody shoe, then hopped some more, all without leaving any of his blood or fingerprints inside her home and without getting any of her blood on his shirt or jacket, but getting small spots of both her blood and his own blood on his jeans.” (Holt used the weight for Dorothy Edwards that the medical examiner, Dr. Conradi, had recorded on her autopsy report; Mrs. Edwards weighed twenty pounds less.)

Holt was angry and realized later that she had probably been a bit too wiseass, not lawyerly enough.

“Mr. Elmore told the jurors the truth. He told them he did not kill Mrs. Edwards. He told them he was innocent. The problem was the thirty-six jurors could not hear Mr. Elmore because the lies, misrepresentations and omissions of James Gilliam, Earl Wells, Dan DeFreese, and Dr. Conradi drowned out Mr. Elmore’s voice of truth.” She was not shy about naming Holloway. “The jurors were not told the truth about Mr. Holloway. They did not know that there was reason to suspect him,” she wrote.

Holt, Miles, and Jensen filed their brief in October 1995. The state’s reply was due thirty days later, but because of other pressing cases, Zelenka requested and was granted repeated extensions; it was five months before he submitted the state’s reply brief (demonstrating that delays in carrying out an execution are not always because of maneuvers by defense lawyers).

He had to concede that Agent DeFreese had testified improperly at Elmore’s trials when he swore that there was not enough ridge detail on one of the fingerprints found at the house to identify it. That was “regrettable,” he wrote. But that did not deprive Elmore of a fair trial, Zelenka argued. Zelenka conceded as well that maybe there was another fingerprint that didn’t belong to either Elmore or Mrs. Edwards, the one on the underside of the toilet seat. But that didn’t mean Elmore was entitled to a new trial. “It was not constitutional error,” he argued.

It was “unfortunate,” Zelenka wrote, that the SLED agents had not taken any pictures of the bed. He dismissed it as an “oversight.” There was no reason the investigators should have taken the bedsheets as evidence, since there were no stains or blood on them, Zelenka argued. Again, this was not a constitutional error.

With the briefs in, Holt and Jensen waited for Kinard’s ruling.

Elmore and death row inmates around the country were dealt a setback in April 1996 when President Clinton signed the Antiterrorism and Effective Death Penalty Act, or AEDPA. It cut off funding for the death penalty resource centers, such as the one where Holt worked. The new law also restricted defendants to filing only one habeas corpus petition in federal court. A writ of habeas corpus, which has its roots in English common law, is the legal process through which a defendant argues that he is being held in prison in violation of his constitutional rights. It is a particularly valuable right in capital cases. State judges, who have to worry about being reelected, either in popular votes or by the legislature, are often uneasy about reversing the conviction of a murderer on some constitutional ground that the public may not understand; federal judges have life tenure and are more immune to popular anger. The “antiterrorism” part of the new law was a response to the bombing by Timothy McVeigh of the federal building in Oklahoma City that killed nearly two hundred people. What “effective” meant in the Antiterrorism
and Effective Death Penalty Act was that executions would be swifter.

“After three decades of Republican dominance of the issue, President Clinton has scrapped his party’s traditional approach to crime and criminal justice, embracing a series of punitive measures that have given him conservative credentials and threatened the Republicans’ lock on law and order,”
The New York Times
wrote.

Conservatives and prosecutors rejoiced. In 1977, the average time that a condemned man spent on death row before his sentence was finally carried out was slightly more than four years; by 1996, it was more than eleven. In California, the average time was thirteen years; in Arizona, eight. “Never has the grim reaper been denied so unjustly for so long,” said an Arizona prosecutor. Elmore might have been exhibit A: he was first sentenced to die when Ronald Reagan was in the second year of his presidency, he survived George H. W. Bush’s tenure, and he was still alive at the end of Clinton’s second term.

Eight days after President Clinton signed the new federal death penalty law, the Court of Appeals for the Eleventh Circuit denied a Georgia death row inmate, Ellis Wayne Felker, the right to file a second habeas petition. Felker, who had been convicted in 1982 for the rape and murder of a nineteen-year-old college student, immediately filed a petition for review with the Supreme Court. For the court’s conservatives, it was an opportunity to do something about what they considered endless appeals. Five justices voted to hear the case and set oral argument for June, even though the regular season for oral arguments had ended. It was the fastest the court had acted since 1971, when the government tried to block
The New York Times
from publishing the Pentagon Papers. Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer argued against taking the case, saying it was “unnecessary and profoundly unwise” to move so quickly; they urged the court to act “with the utmost deliberation, rather than unseemly haste.” After the case was fully briefed and argued, the dissenting justices
joined with the majority and a unanimous court upheld the constitutionality of the new law. It wasn’t for the court to decide on the wisdom of the law, only on its constitutionality, the justices said, and Congress had the constitutional authority to limit an inmate’s right to appeal.

The consequences of the ruling were predictable, and just what the law’s proponents wanted. Executions accelerated. Felker was electrocuted at 7:30 p.m. on November 15, 1996. In 1997, seventy-four men were put to death in seventeen states; Texas, under Governor George W. Bush, was the runaway leader with thirty-eight. It was an all-time high since the Supreme Court had reinstated the death penalty in 1976. The toll kept climbing—to ninety-eight in 1999.

As a result of the new law, the South Carolina Death Penalty Resource Center became the South Carolina Post-Conviction Community Defender Organization, an unwieldy mouthful still headed by John Blume, with interns and lawyers still working out of the same offices on Sumter. Court-approved fees largely funded it now.

Holt and Jensen went back to Greenwood in July 1996 for oral arguments on Elmore’s request for a new trial. “Edward Lee Elmore, who’s seated here next to me, has never had a fair trial, anything reasonably approximating a fair trial,” Chris Jensen told Judge Kinard. “Let him have one now.”

S
IX MONTHS LATER
, in December 1996, Judge Kinard issued his ruling. When Jensen read it, he was stunned. He knew it was unlikely he would win, but Kinard had adopted the state’s argument wholesale. Judges often ask the parties to submit a proposed findings of fact and conclusions of law. But the judge is expected to apply his own thinking before issuing the court order. The United States Supreme Court has “criticized courts for their verbatim adoption of findings of fact prepared by prevailing parties,” Justice White noted for a unanimous court in
Anderson
v. Bessemer City
. Following
Bessemer
, the Supreme Court of Alabama reversed the conviction of a defendant in a capital case, Robert Shawn Ingram, when a judge ruling on the defendant’s post-conviction petition adopted wholesale the state’s draft order dismissing the petition. “It is axiomatic that an order granting or denying relief … must be an order of the trial court,” a unanimous Alabama supreme court said. “It must be a manifestation of the finding and conclusions of the court.” By embracing the state’s proposed order indiscriminately, the judge puts in question whether the findings and conclusions are in fact his, the Alabama justices said.

In light of
Bessemer
, Judge Kinard’s conduct was even more judiciously egregious. It wasn’t a proposed order that he adopted verbatim. He took the state’s “Memorandum of Law in Opposition to the Application for Post-Conviction Relief” and made it his “Order Denying Application for Post-Conviction Relief in Its Entirety.” He didn’t modify a paragraph, a word, a comma. He didn’t even clean up the typos.

When discussing the fingerprint evidence, Judge Kinard’s order reads: “The Applicant also contends that counsel should have acquired fingerprint experts to challenge the state’s findings. This issue is thoroughly addressed in Section 4 of this Brief which is incorporated herein by reference.” But this wasn’t a brief. Lawyers write briefs. Judges, and courts, issue orders.

Addressing Dr. Conradi’s testimony and the differences between her and Dr. Arden, Judge Kinard’s order reads: “(Respondent would incorporate by reference its argument in Argument 15, pages 145–177, on ineffectiveness of resentencing counsel with respect to the testimony of Dr. Conradi, pages 158–172.)” This language was verbatim from the state’s brief, including the parenthesis. But Judge Kinard was “the Court” not the respondent. Once Elmore had filed for post-conviction relief, the state was the respondent.

Since he had copied the state’s brief verbatim, Judge Kinard found it “regrettable” that SLED agent DeFreese had improperly testified about one of the fingerprints, and “unfortunate” that SLED agents had neglected to photograph the bed where
Elmore’s pubic hairs were allegedly found. He wasn’t troubled by the blue jeans having been given to Henderson, and the inability of the SLED agents to account for where they had been. “Proof of chain of custody need not negate all possibility of tampering, but must establish a complete chain of evidence as far as practicable,” Zelenka/Kinard wrote. He dismissed Gilliam. “James Gilliam did not testify falsely at the three trials—the post conviction relief recantations are the matters not worthy of belief.” He rejected out of hand that Anderson had been drunk during trial or that Beasley was a racist. “The claim that the attorney was acting in an alcoholic haze, or that his co-counsel was unable to zealously perform in Elmore’s behalf due to alleged racist attitudes, is without merit and not supported by fact.” Again, this language was lifted directly from Zelenka’s brief.