Anatomy of Injustice

by Raymond Bonner

  Edward Lee Elmore, twenty-five years old, had wet his pants.

  It took the jury of eight whites and four blacks two and a half hours to find him guilty, exactly the amount of time it had taken the first jury. It took them three and half hours to sentence him to death, beating the first jury by an hour.

  Execution was set for June 22, 1984, two years and one day after he was first supposed to be executed.

  THE CASE WENT BACK to the South Carolina Supreme Court. The state fared better this time. During the sentencing phase of the trial, Anderson had wanted to call three prison guards as witnesses. They would testify that Elmore had been a model prisoner, had not caused any problems, and could be rehabilitated. Jones had objected, and Judge Moore kept the testimony out. The South Carolina Supreme Court said that the testimony should have been allowed. But because Elmore’s mother and four sisters had testified to his good character, it was a “harmless error,” the court said. The “harmless error” doctrine, which is the law by statute or high court rulings in all states, stipulates that not all errors during a trial are reversible. Appellants must show that but for the error, the outcome of the trial would likely have been different.

  “Mrs. Edwards was savagely attacked and brutally raped,” the South Carolina Supreme Court concluded in a two-page opinion.

  As his lawyers started the appeals through the federal courts, Elmore was back in prison. He was nervous around other prisoners and would often go days without being able to sleep. He was diagnosed by a prison psychiatrist with acute anxiety and mild depression, and was medicated with Sinequan and Inderal. He was allowed an hour a day for recreation five days a week, a shower five days a week, one visitor a week, and church on Sundays. Fellow inmates affectionately nicknamed him “Brown Bear,” from the little animals Elmore made from the arts-and-crafts supplies given to prisoners. He was no trouble for the guards. “Mr. Elmore was always very polite,” Calvin Claypoole, deputy warden at the Central Correctional Institution, said. “I see him in the morning, ‘Good morning, Mr. Claypoole, how are you this morning?’ In the afternoon, it was the same type of greeting. With the behavior of some of the others, the greetings were much more hostile, if you will.” Some death row inmates, he said, “in order to get your attention there’s spit in your face, there’s human waste in your face, there’s flooding of cells, setting of fires.” Elmore had never done anything like that.

  It was just the kind of testimony that Judge Moore had not allowed. Even if Claypoole and prison officials had testified, however, it is unlikely the jury would have been persuaded to spare Elmore’s life. His fate seemed sealed. But David Bruck was still representing Elmore in his appeals, and Elmore’s case was part of a grand legal strategy. It wasn’t by chance that Anderson had sought to introduce testimony about Elmore’s good behavior in prison. Bruck had recognized that the U.S. Supreme Court, while unwilling to abolish the death penalty outright, was circumscribing the instances in which it could be imposed and ensuring that defendants found guilty had every opportunity to present evidence in mitigation. Bruck became convinced that eventually the court would say that evidence about a defendant’s adaptability to prison—shown by his good behavior there—was a mitigating factor. Thus, he had sent memos to every lawyer handling a capital case to make sure they offered such evidence; it would be excluded, as he knew, but that would provide the basis for an appeal. He was right.

  In 1986, the case of another of Bruck’s clients, Ronald Skipper, was before the United States Supreme Court. He had been convicted of murder and rape. During the sentencing phase of his trial, his lawyer, following Bruck’s advice, had sought to introduce testimony of two jailers who would say that during Skipper’s pretrial confinement he had been well-behaved and had adjusted to prison life; therefore, the lawyer argued, he would not be a threat to other prisoners if he was sentenced to life in prison, as opposed to execution. The trial judge had not allowed the testimony, and the South Carolina Supreme Court upheld his decision. The United States Supreme Court reversed it. All relevant mitigating evidence must be considered by the jury, including testimony of the prisoner’s good behavior in jail, the Supreme Court said.

  In light of Skipper v. South Carolina, Elmore would get another trial. Not on the question of guilt or innocence, only on the appropriate sentence.

  By this time, it would have been hard to find many residents of Greenwood who didn’t know that two juries had found Elmore guilty of murdering Dorothy Edwards, so the trial was moved to Newberry, thirty miles east. William T. Jones was no longer the solicitor. After the second Elmore trial, Jones, then sixty-two, had begun to talk about retiring. His son William T. Jones IV, known as Townes, urged him to do so. Jones waited until the last minute to announce that he would not stand for reelection, so it was too late for anyone else to mount a campaign. Many in Greenwood thought Jones’s daughter Selma was the brighter and more qualified; several police officers had written in her name. (In a few years, she would abandon the law, move to Boston to study acupuncture, and return to Columbia to practice.)

  After graduating from Erskine College, a small Christian liberal arts school in the idyllic town of Due West, South Carolina, Townes had drifted—bartending, waiting tables, working on highway crews, selling vacuum cleaners. He had a reputation for rowdiness, becoming a public embarrassment to his father on one occasion. The senior Jones was prosecuting an evangelical preacher for attempted arson of a policeman’s house (the policeman had arrested the preacher’s daughter for speeding). The preacher took the stand in his own defense, and on cross-examination, Jones asked him what a man of God was doing hanging out at Jackson Station, where there was drinking and gambling and dope smoking. The preacher-defendant shot back, You ought to know. Your son Townes is there all the time. Spectators had never seen Bill Jones turn so red, the veins in his neck bulging. Townes pulled his life together and went to law school, at the University of South Carolina, then worked as an assistant solicitor in nearby McCormick before returning to succeed his legendary father.

  Presiding over Elmore’s third trial was a former solicitor from nearby Greenville, forty-nine-year-old William B. Traxler Jr., who had excelled in law school and would later be named to the federal district court by President George H. W. Bush and elevated to the Fourth Circuit Court of Appeals by President Clinton. The judge who had presided over Elmore’s first trial, E. C. Burnett, was now the chief administrative judge for the Eighth Judicial Circuit, and it was up to him to appoint lawyers for Elmore. Burnett saw no reason why Geddes Anderson and John Beasley shouldn’t handle the case again. But Beasley’s racial slur about Elmore—the “redheaded nigger”—caught up with him, and he was quietly removed from the case. Burnett replaced him with a young lawyer, Billy J. Garrett Jr., a Greenwood native. After graduating from Lander University, a small liberal arts school on a hundred acres in the center of Greenwood, Garrett had applied to the University of South Carolina law school but was rejected. A dean told him that it was because of affirmative action—the school was under pressure to admit more blacks. Hold your powder, son, he was told. Don’t make an issue of it, and you’ll be admitted next year. He did and he was.

  Garrett, whose father sold insurance and whose mother worked in a textile mill, was more liberal on race issues than most Greenwood residents. In high school he had African American friends and once invited some to his house for dinner and to toss a football; for that, his parents sternly reprimanded him.

  Garrett wasn’t sure he should accept the Elmore appointment. He was only three years out of law school and had never tried a murder case. But it wasn’t his lack of experience that worried him. He believed in the death penalty. He sought the advice of Rauch Wise, the veteran defense lawyer and resident liberal in Greenwood, who was an unwavering opponent of capital punishment. Your personal views on the death penalty don’t matter, Wise told him, so long as you do your best to defend Elmore.

  He did. Unlike Anderson, unlike just about everyone who had touched the
case until that point except Bruck, Garrett believed Elmore when he said he was innocent. He worked tirelessly, searching for witnesses, chasing down leads; he lost twenty-five pounds in the course of a few months of working on the case.

  Garrett argued strenuously to Judge Traxler that Anderson be taken off the case. If the court wouldn’t allow that, Garrett said he wanted to argue to the jury that Elmore had been poorly represented at his first and second trials; that his lawyers had conducted no investigation, so the juries heard only a one-sided version of the facts.

  Townes Jones objected.

  “Mr. Geddes Anderson is probably one of the best public defenders I have ever seen in this state,” Townes told Judge Traxler, completely serious. He had defended Elmore “with zeal and with competence.”

  Traxler allowed Anderson to remain as one of Elmore’s lawyers, and he would not allow Garrett to introduce evidence about the dismal nature of Anderson’s and Beasley’s representation at the earlier trials. He did caution Anderson to watch his drinking.

  The Greenwood legal community let the young lawyer know his attacks on Anderson were inappropriate. Garrett wasn’t deterred. Reflecting his youth—or audaciousness—he now took on William T. Jones.

  At both the first and second trials, when Jones had put Gilliam on the stand, he had assured the court that Elmore had confessed to others while in jail awaiting trial, but in the interest of time and expediency, he had said, he would call only Gilliam. Prejudicially to his client, Anderson, in his belief that Elmore was guilty, had accepted that.

  Billy Garrett did not. He asked Judge Traxler to order the state to give him the names of these other individuals. Townes Jones objected. His father had never made any representation that there was another person in that jail to whom Elmore had confessed, Jones told Judge Traxler.

  Garrett was prepared. He handed Judge Traxler the relevant portions of the transcripts from the first two trials. “I’ve got the list here,” William T. Jones had told Judge Burnett at the first trial, referring to people in the jail to whom Elmore had allegedly confessed. “But just to save time, I’m going to just stop it off with this man,” he had continued, referring to Gilliam.

  Judge Traxler was convinced. The defendant had a right to the names of people who were in the cell or had knowledge of the alleged statement, he told the younger Jones.

  With that, Townes Jones executed an astonishing pirouette. He now said that he was also trying to determine who the other prisoners were. He offered to put his father on the stand to clear up the matter.

  William T. Jones III was sworn in. William Townes Jones IV questioned him. He read to his father what he had said at the first trial about there being other persons to whom Elmore had confessed. It was the statement that, moments earlier, Townes had told Judge Traxler his father had never made.

  “Would you please tell us who that individual was, if you know who that individual was?” Townes now asked his father, seeking at least a second name.

  The former solicitor said he didn’t remember the person’s name.

  Even Judge Traxler was having difficulty with this. Here was the best prosecutor in the state, a stickler for details, a man with a legendary photographic memory, and he couldn’t remember? “You don’t know the name of the individual that you were referring to?” Traxler said, barely suppressing his disbelief.

  “I do not,” Jones said.

  With the self-assurance that comes from years of not being challenged, William T. Jones proceeded to dig himself into a deeper ethical hole. He told Judge Traxler that he had not given Anderson the name of a second person to whom Elmore had confessed because, Jones said, he did not know about James Gilliam until after the first trial started. That was untrue.

  Jones referred to the letter Gilliam had written to Sergeant Johnson saying that Elmore had confessed to him. “It was written on the sixth and mailed on the eighth, and we didn’t know about it until then,” Jones told Judge Traxler. That much was true.

  When was the trial? Traxler asked.

  “The trial commenced earlier that week,” Jones said.

  “This is a letter you got in the middle of the trial?” Traxler said.

  “At the end of it,” Jones said.

  This was false, which even a quick examination of the record would have revealed. The trial had not begun “earlier that week,” which would have been Monday, April 5. It had begun on Monday, April 12. Solicitor Jones had the letter and had talked to Gilliam on Friday, April 9. Jones himself had told the court that at Elmore’s first trial.

  Jones was either lying to Judge Traxler now or he had lied in the two other trials about the existence of at least a second person. Lying to judges is serious, a cause for an inquiry by the state bar, possibly even disbarment. But nothing happened.

  The preliminary motions were out of the way; it was time to pick the jury. It took two days. There were forty-one on the panel, only four of them black. Townes Jones used his peremptory challenges to remove only two prospective jurors—both were African American. He allowed one black to serve on the jury. This was a constitutional maneuver, executed by Jones on the advice of a man sitting next to him, a lanky lawyer from the state attorney general’s office, Donald Zelenka. He was head of the criminal division and handled death penalty appeals, all the way to the United States Supreme Court. Jones didn’t want to make an error that might result in another reversal by an appellate court and had asked Zelenka to come over from Columbia to aid him.

  By allowing one black juror, Zelenka and Jones were reacting to a recent decision by the United States Supreme Court. In Batson v. Kentucky, the court had ruled that if a prosecutor used his peremptory challenges to strike black panelists during voir dire, leaving an all-white jury, it was prima facie evidence of discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Prosecutors around the country quickly learned how to get around Batson, how to severely limit the number of black jurors without running afoul of the Constitution. One tactic was to question a black panelist at length before exercising the preemptory challenge, thus making it look as if he had not been struck from the jury pool because of the color of his skin but because of his answers to the questions. With Zelenka advising him, Jones did exactly this. His questioning of the four black panelists runs fourteen or fifteen transcript pages for each; his questioning of white panelists averaged two pages.

  Once the trial began, Townes’s witness list in 1987 was his father’s from 1982 and 1984—Holloway; Conradi; police officers Johnson and Coursey; SLED agents Parnell, DeFreese, Wells, and Henderson; Elmore’s girlfriend; Gilliam.

  Garrett felt he didn’t have many options. He knew the textbook approach in a case like this, when only the sentence was at issue, was to load up on mitigation evidence, to try to get the jury to feel enough sympathy for Elmore—because he had a limited IQ, had been raised in poverty, and was quiet and respectable—that it would decide his life should be spared. But Garrett didn’t see how he could take this approach, the underlying premise of which was, he’s guilty but spare his life. Unlike Anderson and Beasley, Garrett believed Elmore when he said he had not killed Mrs. Edwards. When Elmore told Garrett he didn’t want to testify, didn’t want to go through it again, Garrett understood and didn’t force him to.

  Garrett knew the odds were against him. “This community was in an uproar,” he recalled years after the trial. “This community wanted blood. In the old days, they’d have lynched him.”

  It took this jury only two hours and twenty minutes to sentence Elmore to death.

  “Mr. Elmore, thirty-six jurors from two counties now have heard your case and sentenced you to death,” Judge Traxler said. He ordered Elmore to be executed on May 28, 1987, between 4:00 and 6:00 a.m. “May God have mercy on your soul.”

  Elmore showed no emotion. His sisters sobbed.

  The case forever changed Billy Garrett. He was no longer idealistic about the law. “In my heart of hearts and my soul of souls I trust
ed the system to work,” he said. It hadn’t. “I know they set him up. Or if they didn’t, they broke all the damn rules of fundamental justice that I was taught to believe in to convict him.”

  Garrett no longer supported the death penalty. He had seen how the system was abused and subject to manipulation. “Not human error, human manipulation,” he said. If the death penalty could be imposed in a case like this, without a fair trial, “then we don’t have the right as a civilized society to pass this judgment.”

  David Bruck again represented Elmore when the case reached the South Carolina Supreme Court for the third time. He argued that Jones had used his peremptory challenges to keep two panelists off the jury because they were black, in violation of Batson. Justice Ernest A. Finney Jr. agreed. Elmore’s lawyers had established a prima facie case of discrimination, he said. But Finney, an African American (who was to become the first African American chief justice of the South Carolina Supreme Court), was a minority of one. The court’s four other justices ruled that Elmore had not made a prima facie showing of discrimination—Townes Jones could have excluded the jurors because in their answers to his questions they had vacillated about their views on the death penalty, the court said. The trial court’s decision was affirmed. The sentence of death was “not arbitrary, excessive, or disproportionate,” the court held.

  After three trials, three juries, and three appeals, Elmore was back on death row. He had become a living exhibit for proponents of the death penalty, who argue that the appeals process is too long and drags on endlessly, costing the taxpayers money, depriving the victim’s family of closure. “It was a mockery of our justice system,” said James Walker, the juror from the first trial who was planning to attend the execution. But it wasn’t over. The muscle of the State of South Carolina was about to collide with the grit of Diana Holt: the desire of a state to execute a man who had had three trials met the resolve of a woman to keep him alive until he had had at least one fair trial. The script could have been written in Hollywood, but there was much in it that law students could learn from.