Anatomy of Injustice

by Raymond Bonner

  At the time Jones was chief prosecutor in Greenwood, his counterpart in Los Angeles, Stephen Trott, was teaching young deputies what this ethical obligation meant. When one of them would come to him and say he was facing an ethical problem because he had discovered evidence that would help the defense, and if he turned it over, the state would lose, Trott would say, “That’s not an ethical problem. The ethical answer is easy. Turn it over.” Or a deputy would inform his boss that he’d concluded his star witness was lying. Trott, who would go on to serve as assistant attorney general in the criminal division of the Justice Department during the Reagan administration and as a judge on the Ninth Circuit Court of Appeals, would say, “You don’t have an ethical problem. You don’t have a case. Dismiss it.” That’s the pinnacle of a prosecutor adhering to his ethical duty. “I wonder how many of today’s senior prosecutors tell their juniors stories like that one,” said Mark Kleiman, who had worked for Trott.

  Apparently, not Jones. After Mrs. Edwards’s fingerprints had been taken at SLED headquarters and the hairs found on her body during the autopsy had been examined, the evidence against Elmore was weak at best, and the evidence was stronger that another, unknown, person may have committed the murder. But the police stopped their investigation once they had arrested Elmore, and Jones, far from dismissing the case, proceeded to trial.

  CHAPTER TWO

  Speedy Trial

  JUSTICE DELAYED IS JUSTICE DENIED” goes the popular legal maxim, which is traced back to the Magna Carta. But speedy justice can be injustice, too. In Elmore’s case, everyone seemed to be in a hurry. Generally, the time between a murder and the opening of a trial is at least a year, and often several. The state has to find evidence, as well as locate and interview witnesses. The defense, lacking the police resources of the state, has an even more difficult and time-consuming job.

  But only eighty-four days after Mrs. Edwards’s body was found, The State of South Carolina v. Edward Lee Elmore opened, on Monday, April 12, 1982, the day after Easter. It was reported on the front page of The Index-Journal, but foreign news dominated that day. “Strikes, Arab rioting sweep West Bank” was the six-column headline over a story out of Jerusalem. Beneath that was a story about the war between the United Kingdom and Argentina over the Falkland Islands. In Washington, D.C., John W. Hinckley Jr. was about to go on trial for the attempted assassination of Ronald Reagan. On the West Coast, Mount Saint Helens went quiet after an eruption that had begun three weeks earlier.

  The trial was held in the Greenwood County Courthouse, a sand-colored, two-story brick building. In front is a cherry tree donated by Fujifilm when it located its North American headquarters on a leafy campus on the outskirts of the town. The court is located at 528 Monument Street. The monument for which it is named sits in the shadow of a magnificent magnolia tree on the south side of the building and is dedicated to “Our Confederate Soldiers.” Erected in 1903 by the Ladies Memorial Association of Greenwood County, and carefully maintained ever since, the monument consists of a Confederate soldier with his rifle standing atop a Greek column and is almost as tall as the courthouse. The inscription reads:

  1861–1865

  PATRIOTS

  Who animated by the same faith, actuated by the same love of country, beset with the same trials and dangers, endured with the same fortitude, and fought as heroically to maintain local self government as did the colonial fathers to attain the same, and with them are immortalized in the same halo of glory.

  The courthouse was built in 1968. An open stairwell leads to a second-floor lobby and the courtroom, which has tall, solid double doors. There are no windows—the interior walls are brick—but the high ceiling gives a feeling of spaciousness. It can hold some 250 spectators on church-like pews divided into three sections. The judge’s bench is elevated.

  THE JUDGE

  “LADIES AND GENTLEMEN of the jury, if you would give me your attention just for a few minutes,” Judge E. C. Burnett III, who had just turned forty, intoned as he opened the trial of Edward Lee Elmore. Black-robed and bespectacled, he was flanked on his right by the American flag and on his left by the South Carolina state flag, a banner with a white crescent and a palmetto tree against a deep blue background that was designed for the South Carolina troops who fought the British. Burnett, an avid golfer and devout Christian, was a circuit court judge from Spartanburg, sixty miles northeast of Greenwood. “I’ve been assigned to Greenwood for a week of general sessions court, which is commonly referred to as criminal court,” he explained to the men and women who had been summoned for jury duty.

  After graduating in 1964 from Wofford College, the small liberal arts school Dorothy Edwards’s husband attended, Burnett served in the army, including a tour in Vietnam. Following his military service, he earned a law degree from the University of South Carolina, then returned to his hometown, engaged in the private practice of law, and served one term in the South Carolina House of Representatives. He was appointed a probate judge in 1976 and later a family court judge. He would go on to serve thirty years as a judge by the time he retired from the Supreme Court in 2007, a longevity record in South Carolina. He was politically conservative, and he had occasionally allowed his politics to triumph over the discipline expected of judges. Some years after the Elmore trial, he signed an anti-abortion ad, which brought a reprimand from the South Carolina Supreme Court for taking a public stance on an issue that might come before the court. The South Carolina Bar Association rated him “least qualified” when he was later being considered for a seat on the state’s Supreme Court, but politics trumped merit. The legislature appoints circuit court judges and Supreme Court justices, and black lawmakers cut a deal: they voted for Burnett for the Supreme Court in exchange for white legislators agreeing to a black judge on the circuit court.

  While sitting on the high court, Burnett embroiled himself in another controversy. His daughter, a Spartanburg schoolteacher, sent him an e-mail that mocked blacks. The subject was “Vocabulary Words.” A student named Leroy is asked to use the words in a sentence.

  “AFRO—I got so mad at my girl, AFRO a lamp at her.”

  “KENYA—I needed money for the subway, so I axe a stranger KENYA spare some change.”

  “DIMENSION—I be tall, dark, handsome and not DIMENSION smart.”

  There were eighteen examples in all.

  “I don’t see anything racially offensive in it,” Burnett told The State, Columbia’s largest-circulation newspaper, which got hold of the e-mail. “I just thought it was funny.” Only after black lawmakers held a news conference and demanded an inquiry did Burnett apologize.

  As a trial judge, Burnett was to be an impartial arbiter on matters of law, a role that evolved in the seventeenth and eighteenth centuries, when judges were responsible for adducing the facts of a case, examining and cross-examining witnesses for the prosecution and defense. Today, judges in most European countries, except for Britain, supervise investigations, gather facts and evidence, and examine witnesses. An American judge may overturn a jury’s finding of guilty if he deems the evidence does not support the verdict, but he may not find a defendant guilty if the jury has returned a not guilty verdict. At the time of Elmore’s trial, Burnett had been a trial judge for only seven months, and this was his first capital case.

  THE DEFENSE LAWYERS

  THE TWO BEST criminal defense lawyers in Greenwood were James Bradford and Rauch Wise, both in their early thirties. Wise could not represent Elmore because he had a conflict: the victim’s daughter, Carolyn, had once worked for his law partner. Besides, he and Bradford had just finished a capital trial and were not emotionally or financially ready to take on another.

  Therefore, the public defender became Elmore’s lead lawyer. Geddes Dowling Anderson was a lanky six-foot-four swashbuckler with a smart mustache and a fondness for Panama hats. Some thought he looked like Gregory Peck or was even more handsome. Most good trial lawyers have a bit of actor in them, and while a student at the University
of South Carolina—where he enrolled after being tossed out of Clemson—he performed the lead male role in Bus Stop, playing Bo Decker, the cowboy who chases Cherie (played by Marilyn Monroe in the film version). Bitten by the acting bug, he dropped out of school and headed to Hollywood, driving day and night across the country in a 1950 Ford. He studied at the Pasadena Playhouse, got bit parts in the ABC series Bronco, and befriended the musician David Crosby, who had yet to team up with Stephen Stills and Graham Nash. After a year and a half, Anderson returned to South Carolina and tried again at Clemson, where a brother, Joe, was now the star quarterback. Geddes didn’t excel at anything, except maybe partying, and he was thirty-two before he finally managed to complete law school, at the University of South Carolina.

  By his own account, he should have stayed in California. “I probably would have been a lot happier, as well as a hell of a lot more successful,” he said many years later, sitting in his office with threadbare carpet. Creditors and the IRS seemed to knock on his office door more than clients did. He sought the public defender job, which would guarantee him a steady income of $12,000 a year.

  Anderson was as affable as they come, and in truth, he was pretty good in the courtroom—when he was sober. Around town, bartenders called him “the bourbon cowboy.” (They were sure they had seen him on television as the Marlboro man; they hadn’t.) He was busted twice for drunk driving, once while he was the public defender, which caused some of the cops to laughingly wonder what it would be like for a prisoner to find himself sharing a cell with Anderson. During the trial, Elmore smelled alcohol on Anderson’s breath every day, and his behavior in the courtroom reinforced the suspicion that he had been drinking when he should have been preparing. Anderson insists he was “perfectly sober” throughout the trial. “I wasn’t even hungover one day,” he said. SLED investigator Tom Henderson scoffed at that: “Geddes Anderson was drunk through the whole trial.”

  Under South Carolina law, because Elmore was facing a possible death sentence, he had to have two lawyers (a requirement in most death penalty states). Finding a second chair for Elmore wasn’t easy. There were some thirty lawyers in Greenwood, all white and male, save for Solicitor Jones’s daughter Selma. None rushed to take the case of a black man accused of killing a prominent white woman. When the town’s lawyers realized the court was going to appoint one of them, they raised $5,000, which they offered to any lawyer who would take the case. It was kind of like buying your way out of the military during the Civil War.

  John Beasley stepped forward. He was an undistinguished criminal defense lawyer, known around town for boasting that he really didn’t care much for work. Saturday was his favorite day of the week, he would tell friends; he liked it so much, he got up earlier that day, he said. His father, Hugh, the county prosecutor for the twenty-six years before Jones took over, was a staunch segregationist, and routinely used the word “nigger.” His son was more guarded, but he once slipped, referring to Elmore as a “redheaded nigger.”

  Anderson and Beasley couldn’t comprehend Elmore. He was courteous and polite, but he was so uncommunicative. He wasn’t like other men Anderson had defended, who’d scream, “I didn’t do it, I didn’t do it! Here’s what happened.” Elmore just quietly kept saying he hadn’t killed Mrs. Edwards. Anderson never considered that Elmore’s reticence, his inability to articulate what happened, might reflect his mental limitations. Even less did he imagine that perhaps Elmore was telling the truth, that he was indeed innocent. “In my judgment the son of a bitch did it,” Anderson said years after the trial. “I was convinced of that at the time, and I still am.”

  Nonetheless, Anderson had an ethical obligation to defend Elmore vigorously. Even if he puts no witnesses on the stand and presents no evidence, a defense lawyer in a criminal trial must test the state’s case, require it to prove the defendant guilty beyond a reasonable doubt. The obligations of the defense counsel and prosecutor are notably different. The prosecutor “must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime,” Justice Byron White wrote in 1967, in United States v. Wade. “But defense counsel has no comparable obligation to ascertain or present the truth.” White continued: “Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty.” Ethical restraints that operate on the prosecution do not apply to the defense counsel. He need turn over nothing to the state that will help the state’s case, while the prosecution is required to turn over all evidence to the defense. During cross-examination, a prosecutor is not supposed to seek to undermine a witness who he knows is telling the truth; a defense lawyer may. “As part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth,” Justice White wrote.

  In capital cases, the obligation of the defendant’s lawyer is even greater. “While defense counsel has the obligation to render effective, quality representation in all criminal cases, defense counsel in a capital case must, given this extraordinary penalty, make extraordinary efforts on behalf of the accused,” the ABA says in its Criminal Justice Standards. With his client’s life at stake, “defense counsel should endeavor, within the bounds of law and ethics, to leave no stone unturned in the investigation and defense of a capital client.”

  Anderson and Beasley did virtually nothing. They consulted no independent experts, no pathologists, no fingerprint specialists. They didn’t search for witnesses; didn’t talk to any of Mrs. Edwards’s neighbors; didn’t interview Mr. Holloway, who had found the body. They didn’t even read the police interviews with the witnesses, which the prosecution had turned over to them as required by law. Ever since the time that defense lawyers first began to appear in criminal cases under English common law, their obligation has been to force the state to prove its case. Anderson and Beasley accepted the state’s case more than they challenged it. They stipulated to the admissibility into evidence everything Jones wanted to introduce—hair, fingerprints, Elmore’s blue jeans and coat—ninety-eight items altogether. This meant that Jones didn’t have to establish the “chain of custody,” that is, who had had possession of each item and where it had been, in order to rebut any chances of tampering. “I have respect for the SLED team, and they’re the best we have in South Carolina, and I assumed they were not going to contaminate the evidence,” Anderson explained.

  THE JURY

  WITH THE SIXTH AMENDMENT, the Founding Fathers guaranteed an accused the right to trial by an impartial jury, and in 1968, the Supreme Court said this right applied to cases in state courts as well. “The guarantees of a jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered,” Justice White explained in Duncan v. Louisiana, which held that even if a person was charged with only a misdemeanor, he had the right to a jury trial if he wanted one.

  The Constitution says nothing about how an “impartial” jury is to be selected. It is the judge’s responsibility to ensure an unbiased jury, and he is helped in getting one through a process known to lawyers as voir dire: The judge, prosecutor, and defense counsel question the men and women who have been summoned for jury duty. Many questions are routine: Do you know any of the police, the prosecutor, the defense counsel? Have you heard anything about the case that would prejudice you in reaching a verdict? How do you feel about capital punishment?

  Jones and Anderson also asked members of the jury pool about their religious affiliations and views. Did they go to church? If so, which one? How did they feel about the biblical axiom of an eye for an eye, a tooth for a tooth? Or were they more New Testament, prone to turning the other cheek?

  Solicitor Jones was a member of the same Episcopal church as Dorothy Edwards. But he wasn’t looking for Ep
iscopalians, because their church is opposed to the death penalty. Jones wanted Southern Baptists, members of the most conservative church in a conservative region, among the staunchest believers in capital punishment. Get more than four Southern Baptists on the jury, and once your client is convicted, he’s doomed to be sentenced to die, death penalty lawyers say. Whites tend to support the death penalty more than blacks, men more than women, married persons more than singles, wealthy people more than poor people, suburbanites more than urbanites. And individuals who believe in capital punishment are generally more inclined to convict, to believe the police and the prosecutor.

  Frances Carolyn Mann was the first member of the panel to be questioned. She fit the profile of a pro-prosecution juror: ninth-grade education; owned several guns—a stainless steel .357 Magnum, an Ithaca riot gun, a .22 Magnum, and a .25 automatic; her current husband ran the Central Detective and Security Agency.

  “Mrs. Mann, I don’t want to embarrass you, but isn’t it a fact that your husband has a pending indictment against him in this court?” Anderson asked.

  “Yes, sir, he does.”

  Anderson asked Judge Burnett to disqualify her. “She doesn’t want to have him on her husband, I can tell you that,” Anderson said, referring to Jones. Burnett disagreed. She could sit.

  The law gives the prosecution and defense preemptory challenges, the right to dismiss a potential juror without giving any reason. In South Carolina at the time, Anderson had ten; he exercised his first to dismiss Mrs. Mann. He used his second and third against the next two on the panel.