Anatomy of Injustice (33 page)

Holt’s attitude was, No, buddy, you want the story, you’re going to get the whole story, not just the parts that suit you. She explained what had happened, the introduction of the nude pictures and, above all, the brutal cross-examination by her stepfather’s lawyer.

“It was extraordinarily traumatic, as you can imagine,” she told Zelenka. Never quite able to hold her tongue, she said, “It was not unlike some of the cross-examinations of some of the people who are sentenced to death.”

She went on: “There were I don’t know how many hundreds of nude photographs of myself and my little sister that were then introduced into that court record.” Holt started to cry when she told about the judge ordering that child protective services take custody of her sister.

The deposition lasted nearly four hours.

That evening, Diana’s husband, Kevin Bell, called Zelenka at home. Zelenka’s wife answered. Bell identified himself and was surprised when Zelenka came to the phone. Bell was furious. “My mother would not have been proud of my language,” he recalled. He yelled at Zelenka. He said his wife was in a corner, a basket case. What Zelenka was doing was unethical and unprofessional. How in the hell did he get the information? Bell demanded to know. Louisiana law prohibits authorities from releasing criminal records, except to other law enforcement agencies, and then only if it is part of a criminal investigation;
that does not include using the information to impeach a witness.

Zelenka didn’t have just photocopies of the Louisiana report; he had obtained the carbon copies directly from the files. What the hell did Zelenka tell the state of Louisiana? Bell accused him of lying. Zelenka didn’t answer Bell’s questions and charges. He didn’t argue, and he didn’t hang up. He just took it. Zelenka told Bell that a SLED agent had brought the information to him and that he had run a background check to confirm it. Zelenka also said that he was referring the matter to the head of the criminal division of the attorney general’s office. The SLED agent, whoever he was, had probably violated federal and South Carolina privacy laws. Nothing ever happened.

When the hearing in the Johnson case took place, Blume, Holt, and Zelenka went together into the judge’s chambers. Zelenka had a thirty-page memorandum, essentially portraying Holt as trailer-park trash. Zelenka told the judge, William P. Keesley, that he wanted to use the material, including the conviction, to impeach Holt.

Judge Keesley began reading. He was visibly disgusted.

He was not going to allow Zelenka to do this, he said. What happened took place twenty-five years ago, when Holt was young. She made it through the board of character and fitness in Texas and in South Carolina, the judge said. He advised Zelenka against proceeding as he planned, but if he wanted to make a record, he could. Zelenka said he would not.

Holt and Blume walked out. They sagged, hugged each other, and broke into tears.

T
HE
S
OUTH
C
AROLINA
S
UPREME
C
OURT
rejected Johnson’s appeal. To get a new trial, the majority wrote, the defendant had to show that the new evidence—in this case, Hess’s sworn confession—would “probably change the result” of the original trial. That standard had not been met. “We do not believe it is probable that a jury would find Hess credible given her prior inconsistent statements,” Justice James E. Moore wrote for the
court. He had been the judge at Elmore’s second trial. Joining him in the opinion was Justice E. C. Burnett III. He had been the judge in the first Elmore trial.

The dissents were short but powerful. “I believe that to deny Johnson a new trial in the face of a confession by someone who was admittedly present when the murder was committed would constitute a denial of fundamental fairness shocking to the universal sense of justice,” Justice Waller wrote in a three-paragraph opinion. “Our system of justice dictates that before Johnson is put to death he must be given an opportunity to present such evidence to a jury of his peers.”

The United States Supreme Court rejected Johnson’s appeal. Johnson’s supporters mounted a campaign to persuade South Carolina governor James Hodges to grant him clemency. The mother of Bruce Smalls, the state trooper Johnson was convicted of murdering, issued a public letter urging clemency. Smalls’s sister, Pat, and son, Kevin, asked the governor to uphold the sentence.

Governors rarely grant clemency in capital cases, the extraordinary exception being Illinois governor George Ryan. In January 2003, three years after he had declared a moratorium and appointed a blue-ribbon commission to examine how to reform the state’s death penalty, he commuted the sentences of 167 death row inmates on a single day. It was a monumental step, all the more so because as a legislator, in 1977, Ryan had voted to reinstate the death penalty, and when he became governor, in 1999, he was “a firm believer in the American system of justice and the death penalty,” he said in announcing the mass commutation. “I believed that the ultimate penalty for the taking of a life was administered in a just and fair manner.”

He could no longer be so confident, not in light of “the systematic failures of our capital punishment system” two reporters at the
Chicago Tribune
, Steve Mills and Ken Armstrong, had revealed. The reporters had looked at some three hundred capital cases in Illinois. Nearly half had been reversed on appeal, for a new trial on guilt or innocence or for resentencing.

“Now, how many of you people here today that are professionals
can call your life a success if you’re only fifty percent successful?” Ryan asked rhetorically in his speech at Northwestern University Law School, where a joint clinic with the journalism school had resulted in several men being released from death row. “Certainly, I can’t as a pharmacist. I don’t think doctors can.”

Ryan deliberately chose to make the announcement at Northwestern, where the work of the Center on Wrongful Convictions—a combined program of the law and journalism schools—had resulted in several men being released from Illinois’s death row. The room was jammed with some five hundred law students, journalism students, and anti–death penalty activists.

Ryan said that more than two-thirds of the death row inmates were African Americans and that forty-six had been convicted on the basis of testimony from jailhouse informants.

“I can recall looking at these cases from the Mills/Armstrong series, and I asked myself and my staff: How does this happen? How in God’s name does that happen? In America, how does it happen?”

Ryan said that he had been lobbied to end the death penalty by many international bodies and individuals, including the European Union, the Vatican, Nelson Mandela, and Archbishop Desmond Tutu.

“To take the life when a life has been lost is revenge. It’s not justice,” Bishop Tutu wrote.

Only the day before, Nelson Mandela had called. The essence of his message, Ryan told those gathered, was, “America is a beacon of fairness and justice and the death penalty really doesn’t pay homage to that kind of operation.”

Ryan noted that the death penalty had been abolished by every European country, as well as Canada, South Africa, and nearly every country in Latin America, including Mexico. That leaves the United States “in partners in death with several Third World countries,” Ryan told the audience.

As Ryan neared the end of his often emotional speech, he borrowed from Justice Blackmun: “I shall no longer tinker with
the machinery of death.” (In 2010, Illinois abolished the death penalty. New Jersey had abolished it in 2007 and New Mexico in 2009.)

No South Carolina governor had ever granted clemency. And now it was an election year, with Hodges, a Democrat, facing a potential challenge from Don Zelenka’s boss, Attorney General Charlie Condon, who once proposed that the electric chair be replaced by an electric couch so there could be simultaneous executions. Hodges refused clemency.

As Johnson faced death, Diana talked to him almost daily, sometimes for two hours. She was convinced he was innocent. On execution day, she went to death row to be with him. He was chain-smoking and went from talking a blue streak to being somber. Another lawyer, Fielding Pringle, who had worked on the clemency petition, came in. She was strikingly attractive, and Holt noticed how Johnson lit up. She had to smile. He’s a red-blooded male and still kicking, she thought to herself.

Diana was with him for almost seven hours. As she left, his last words were, “I’ll see you at the beach.” He’d grown up on the North Carolina shore, and he and his sister Lori played there together. He had a favorite spot on the beach, where he loved watching the sun go down behind him. He had pictures his sister had taken at the beach, and he gave them to Diana. She told him she was going to sit at the beach for him one last time.

On May 3, 2002, Richard Charles Johnson, thirty-nine years old, ordered for his last meal fried shrimp, fried oysters, French fries, chocolate cake, and iced tea. When he finished, he was strapped to a gurney, needles were stuck in his arms, and his life was ended with a lethal injection. At his funeral, before the casket was closed, his sister managed to cut some locks from his hair. A few days later, she and Diana went to the beach in North Carolina, waded into the surf, and let them go.

The Johnson case was a turning point for Holt. She was convinced Johnson was innocent. The politics surrounding the case disgusted her. She had now made the journey to the position of firm opposition to capital punishment, though still not on moral
grounds. She simply believed “there is no way to implement it fairly. Despite all legal safeguards, whether one gets death or not is dependent on geography, the elected official with the power to seek it, the color of his skin, gender, the color of the victim’s skin, the victim’s gender, wealth of any of those, poverty of the defendant, mental health of any of those, and judges with agendas, etc. I haven’t begun to address the innocence or not question, the integrity of law enforcement, the competence of law enforcement, the competence of forensic analyst, and on and on and on.”

Johnson was the twenty-eighth man Elmore had watched leave his cell and not return.

T
HE SUMMER AND FALL
of 2000 were nerve-racking for Holt. In June, she sent Item T to the Laboratory Corporation of America, in Research Triangle Park, North Carolina, for testing. By September, she was calling the lab practically every day. Didn’t they have the results yet? When were they going to have them?

Twenty-three days before Christmas, the fax machine in her office spit out three pages. It was the report from LabCorp. The lab had tested nine hairs. Five were found to be “consistent with these hairs originating from Dorothy Edwards or an individual that is maternally related to her,” the lab reported. Three had insufficient DNA for testing purposes.

That left one.

This hair “could not have originated from Dorothy Edwards or an individual that is maternally related to her,” the lab reported.

Holt was ecstatic.

Judge Kinard had promised a hearing when the DNA results came in, and on December 21, Edward Lee Elmore was back in the Greenwood County courtroom where he had first been sentenced to death. He was barely twenty-three years old at the first trial, with a full head of hair. He was three weeks shy of forty-two now and bald, partly from age and partly because he shaved his head. At the first trial, he had been saddled with Anderson and Beasley. Now he had Holt and Blume. Elmore
had every reason to believe that Christmas 2000 would be the best he had celebrated in eighteen years. “He thought he had it made this time, after all these years, that people would see the light, that they just got the wrong man,” said his sister Peggy, who was twenty-five at her brother’s first trial and was now a grandmother. A female guard from the South Carolina Department of Corrections led Elmore, shackled and in a green prison-issue jumpsuit, into the courtroom; she had a pump-action shotgun. What she need that for, her finger on the trigger, Peggy said to herself. He ain’t goin’ nowhere.

“All rise,” the bailiff intoned. Judge Kinard entered the courtroom, his judicial robes covering a loud plaid suit. “Okay, at ease,” he said, taking his seat.

“I’d like to request that the shackles be removed from Mr. Elmore” were the first words from Holt. She was always trying to give Elmore as much dignity as possible. Judge Kinard, ever amiable, agreed.

Kinard, his morning coffee in a white Styrofoam cup next to his arm, acknowledged “the disproportionately large number of media present.”

There were also some observers with considerable interest in the outcome. Townes Jones had walked over from his office across the street. Two of the policemen who had originally investigated the case were present—Jim Coursey, retired, now working in security for Pizza Hut, and Al Johnson, also retired, now an amateur thespian.

Elmore’s family and supporters were there—Peggy, his brother James, and Reverend Spearman. Diana’s best friend and colleague, Fielding Pringle, had gotten up early and driven from Columbia with her three-month-old son, which meant a lot to Diana. Fielding had also brought her mother to witness what she expected to be a historic event: Elmore getting a new trial after nearly two decades on death row. Rauch Wise came from his law office on the other side of Main Street; convinced of the outcome, he had called a friend who had a talk show on local radio station WLMA and suggested he come to the court. “You’ll be the first with the news when Elmore gets a new trial,” Wise said.

Holt, in a navy blue suit, stood and asked that several exhibits be admitted into evidence. One was an affidavit from Myron Scholberg, the retired FBI forensic expert who examined Item T. As the day for the hearing approached, Holt had remembered how upset he had been with SLED and Earl Wells. She called Scholberg and asked if he would be willing to sign an affidavit that could be submitted to the court stating his views. He agreed. “The presence of hair was immediately apparent and clearly visible, that is to say that hair was visible on these slides to the naked eye,” he said in the affidavit. He hadn’t even needed a microscope. He went on: “I do not know or see how Mr. Wells could have looked at the four microscope slides and honestly reported that the four Item T slides only contained blue fiber.” (Out of court, Scholberg was more straightforward: “The report is a fraud.”)