Anatomy of Injustice (34 page)

Holt went on to explain to Judge Kinard that Chris Jensen was unable to attend the hearing for medical reasons. She didn’t want the court to think that perhaps Jensen was bailing out because he no longer believed in Elmore’s innocence. “He’s had heart problems, irregular heartbeat, and his doctor would not allow him to come today, prior to undergoing the testing the doctor ordered,” she explained. “And that’s the only reason Mr. Jensen is not here today.”

Holt knew the case better than anyone, but she still lacked confidence in court. She was also uncomfortable about having to face so many reporters. John Blume would therefore argue the case. Not only was he skilled at presenting oral arguments, but he was good at concise analysis, sound bites, and snappy quotes for reporters.

His hair almost to his shoulders, wearing a double-breasted gray suit and rimless glasses, Blume addressed the court first. “In any fair system this gentleman is entitled, we believe, to a new trial,” he told Kinard. A hair had been found on the victim’s body, a white hair, which didn’t belong to the victim, Blume pointed out. “That, in and of itself, we believe entitles Mr. Elmore to a new trial.”

Before he could go on, a spectator shouted, “Holloway, confess.”
He was led from the courtroom, and the proceedings continued.

Blume and Holt had prepared a blowup of the statements officials had made under oath about Item T. They mounted it on an easel, easily visible to the television cameras and reporters as well as to Judge Kinard.

Blume, looking at the history of Item T, saw only one conclusion. “There’s no way to mince words about this. Agent Wells has clearly committed perjury,” Blume said. “If this were a defense witness, or a defense expert, or a defense lawyer who had given the testimony he had, I have no doubt they would have been arrested.” Wells was “like the proverbial child lying when they have their hand in the cookie jar,” Blume went on.

Blume turned to other evidence. Gilliam, the jailhouse informant, had recanted; the state said there were no other fingerprints, but it was established that there was at least one unidentified print, on the underside of the toilet seat in the victim’s bathroom; the prosecutor had argued graphically that Mrs. Edwards had reached up and grabbed hairs from Elmore’s groin, yet he had no injury to his groin area, no cuts, no bruises; and there were no Negroid hairs found under Mrs. Edwards’s fingernails, or anywhere else at the scene.

“The whole thing really stinks,” Blume said, concluding with some blunt, if not exactly legal, language. He had addressed Kinard for just under thirty minutes.

Don Zelenka, in a dark suit and white shirt and wearing his rimless glasses, raised his lanky body and addressed the judge. Wells had been “incorrect” when he reported finding only blue fibers, Zelenka told the court; he had “misreported” his test data. Wells, in a natty dark suit, crisp white shirt, and red tie, sat just to Zelenka’s right, listening intently. Still, this did not justify a new trial, Zelenka argued.

Yes, a white hair had been found on Mrs. Edwards’s body that was not hers, Zelenka conceded. So what? Who knows how it got there? he said. It could have been a stray hair lying around the house, “completely unrelated to this crime,” picked up by her body while she was being beaten, Zelenka argued. “It is merely another hair that was in the bedroom of Mrs. Edwards,” he went on. “One stray hair.”

Zelenka pointed to all the evidence that the state had introduced against Elmore: forty-some pubic hairs on the bed, the victim’s blood type on Elmore’s clothes, his fingerprint on the back door, Gilliam’s testimony at three trials.

Zelenka finished, and Blume had another opportunity.

He continued to focus on Wells. “I am not in the habit of coming in and saying that law enforcement agents lied, but in this case this is not a mistake, this is a lie. This is perjury.”

In closing, Blume drew on his theological education, borrowing from Rabbi Hillel: “I think in the final analysis the question really is, If not now, when?” If it is not enough to grant somebody a new trial when material, exculpatory evidence has been withheld in violation of
Brady
, when there has been false testimony, “then when is post-conviction relief ever appropriate?”

A little more than an hour had passed since the hearing began. It was assumed Judge Kinard would return to Columbia, study the lawyers’ briefs and oral arguments, and write an opinion. Then he began to speak. There were murmurings in the courtroom when it became clear that he was going to rule right then, from the bench, without further consideration.

“Obviously, it should have been disclosed to counsel,” he said about Item T. But he agreed with the state that the failure to do so had not “unduly prejudiced” Elmore. “One hair is not enough,” he said.

The disbelief was audible—gasps, followed by a stunned silence—when the import of what Judge Kinard had said registered.

Kinard quickly added. “Good luck to everybody, I’m out of here.”

“We love you, Eddie,” someone shouted.

“Eddie, chin up, hold your head up,” came another voice.

“Keep your head up, bro.”

Elmore registered no emotion. He did not understand what the judge had ruled. Diana whispered in his ear and started to cry. When Elmore understood, he said softly, “I bet if that one hair had been my hair, it would have been enough.”

His sister Elease, wearing a red coat and a black beret, came up to embrace him but was blocked. The guard with the pump-action rifle led Elmore from the courtroom.

“The system’s just not right for the black and the poor,” Elease said in the corridor. “If you’ve got money and you’re white, you can move a mountain.”

Outside the courthouse, the family and Reverend Spearman hugged and prayed. They waved to Elmore as he was put into the white prison van and driven away.

Blume, shocked and angry, repeated for reporters what he had said in court: If any defense lawyer had lied like Wells had, he would be prosecuted.

Wise was dumbfounded. “You could have knocked me over with a feather,” he said. He knew Kinard well, had argued many cases in front of him. “Of all the judges who would have done the right thing, I would have thought it would be him.” The only explanation Wise could come up with was that Kinard looked at the fact that three juries, thirty-six men and women, had sentenced Elmore to death, and he just couldn’t bring himself to overrule that. What this overlooked, Wise said, was that in reality there had been only one trial, replayed twice. If the evidence
was flawed in the first trial, if there was prosecutorial misconduct, if there was ineffective assistance of counsel, then it permeated all the trials.

James Bradford, one of the best defense lawyers in Greenwood, who had since moved to York, wasn’t so surprised. It wasn’t that he thought the evidence against Elmore was convincing, or because he thought Judge Kinard was right on the law. Rather, this case was like so many capital cases: there were bad defense lawyers and prosecutorial misconduct, but there was also a mindset among judges that once there is a conviction, “it is going to take Jesus walking on water to make me believe we screwed this thing up.”

Holt was devastated, her feelings raw—“skin peeled with a paring knife kind of raw.” She and Blume went to lunch but could hardly eat. There was some gallows humor; over and over they repeated, with disbelief, “One hair is not enough.”

They drove back to Columbia in separate cars. As they approached the city and John turned off on the exit that would take him home, Diana looked over. He had a sad, painful look and made a thin effort to smile. “And then he was gone, and I was gone.”

There was a Christmas party that night at Fielding’s. Many revelers were from the public defender’s office, young, still filled with idealistic enthusiasm. Fielding, John, and Diana were miserable, in no mood to party. As Diana was making her way out, David Bruck was coming in. She burst into tears.

To Bruck, Kinard’s ruling was surprising on one level—ignoring the facts, the lies, and the law—but also spoke volumes about the death penalty: no one wants to take responsibility; everyone is always trying to pass the buck. He knew that judges say they’re only enforcing the law given by the legislators; that juries think judges will overrule them; that trial judges look to the appellate judges to save a man, if he should be saved; and that appellate judges say if the man shouldn’t be executed, then let the governor grant clemency. Kinard had effectively passed the buck to the South Carolina Supreme Court.

Holt had still not given up.

O
N
J
ANUARY
4, 2001, Diana Holt filed a motion that pushed the limits of the law, reached a new level of audacity, and tested the meaning of impudence. Moreover, the idea had come to her from a most improbable source, a SLED agent. She had invited the agent, David Caldwell, to lunch. She didn’t want to talk about Elmore, but about another of her death row clients, whose case Caldwell had investigated. She didn’t have much respect for Caldwell, had all but accused him of lying in one case, but Holt had been told by another SLED agent that Caldwell had doubts about her client’s guilt, and she’d break bread with just about anyone if it would save a man from execution. Holt had been warned by David Bruck that Caldwell had a history of saying one thing to gain a defense lawyer’s sympathy, then saying something entirely different when he was on the stand. Over lunch, Holt understood. Caldwell told Holt that her client was one of the most cold-blooded killers he’d ever seen. She abruptly changed the subject.

Now she mentioned Elmore. Caldwell hadn’t been following the case, so Holt gave him a lengthy précis, going on for nearly an hour.

I’d bet my career Holloway did it, Caldwell said. It took a second or two for it to sink in with Diana what he’d said. Why don’t you exhume his body, get his DNA, said Caldwell. That would determine if the Item T hair was his. And she could get
Holloway’s fingerprints at the same time, to see if they matched the fingerprint on the underside of the toilet seat.

Holt was uneasy with the idea of exhuming Holloway. You just don’t go around digging up the dead. But with Kinard having ruled against Elmore yet again, she felt she had no choice but to go to extremes.

Nineteen years to the month after Dorothy Edwards was murdered, Holt filed a short motion with Judge Kinard. It reflected her obvious exhaustion and impatience and was not smoothly written. She wanted a court order to “exhume the body of Mr. James Holloway in order to obtain a DNA sample (to determine if the hair belongs to him) and to see if it is possible to still obtain fingerprints (to check against the unidentified prints found on the toilet seat in the victim’s private bathroom).” She also wanted DNA testing of the scrapings from under Mrs. Edward’s fingernails. Surely that would reveal whether Elmore was her attacker and, if not, whether Holloway was (assuming she got to exhume his body).

Finally, she asked the court to order DNA testing of the blood spots on Elmore’s shoes and blue jeans to determine whether the blood was the victim’s, as the state argued. She didn’t really want to do this, fearing that the blood spots might have been planted. “Applicant fully believes that the few small areas of Type A blood (the same ABO type that the victim and the applicant’s brother shared) identified on the shoe and pants were either placed there when the items were inexplicably removed from SLED by former neighbor to James Holloway—former SLED agent Tom Henderson.” Still, Holt couldn’t let Elmore die and then later find out that the blood was not his, that no blood had been planted, so she asked for the testing.

Holt had several long talks with Elmore. He had to understand what she was going to request. If DNA tests were performed and it turned out that it was Dorothy Edwards’s blood on the jeans and shoes, Eddie would be executed. Did he understand that? Yes. Did he still want to go ahead with the DNA testing? Yes.

Holt faxed the motion to Don Zelenka, with a one-sentence cover letter:

She knew he would oppose the motion, and he did. Exhuming a body should not be allowed without a showing that it was “
absolutely necessary
to the fair administration of justice,” Zelenka argued in a four-page legal brief (which is about as brief as lawyers ever get). Elmore’s lawyers had not only failed to show absolute necessity, they had failed to show
any
necessity for this extraordinary step, he argued. His principal contention was that the request was too late. Elmore’s lawyers should have requested DNA testing prior to the hearing in December.

Holt was disgusted. “It is inconceivable that the state opposes, based on a technicality, conducting DNA testing on the items which applicant seeks testing,” she wrote in a letter she faxed to Judge Kinard. Zelenka could not “seriously object to the testing that could fully exonerate Mr. Elmore,” she wrote. While the legal burden was on Elmore’s lawyers to justify the motion, she noted, “the burden of truth is on the state of South Carolina.”