Anatomy of Injustice

by Raymond Bonner

  “So is there any particular reason why this exhibit wasn’t treated the same way, that you can recall?”

  “None that I recall.”

  That was as good as Jensen was going to get.

  He turned to another question.

  “And this particular bag, was it ever sealed to your knowledge?”

  “Not while I had it,” said Parnell. “It was my intention to take it straight to our hair and fibers examiner at the time. I did not seal it with tape.”

  Jensen could not believe what he was hearing. “Knocked me off my chair,” he would say later. Evidence not sealed? In New York, in most courts throughout the land, a judge would not have allowed the baggie into evidence, or if he had, the defense lawyer could argue that it should be treated with great doubt. Anyone could have put hair into that bag.

  Jensen had still another question for Parnell. To whom had he given the unsealed baggie with the hairs? “To Lieutenant Earl Wells with our chemistry department at the time,” Parnell said. “It was midmorning on the nineteenth.”

  Earl Wells was later called as a witness for the state at the PCR. Answering questions from Zelenka, he said that Parnell had given him the hairs. That was not what he had testified, under oath, at Elmore’s first trial. DeFreese had given him the hairs, Wells had testified. And at the trial, DeFreese also testified that he had given them to Wells.

  Jensen asked Wells what had happened to the hairs that had been yanked from Elmore. How were they delivered to him?

  Wells didn’t remember. He assumed they were in a container of some kind.

  Do you have those containers today? Jensen asked.

  No, sir.

  “Would it surprise you if I told you that there were no containers of the suspect’s hair?” Jensen asked.

  “Would it surprise me? Conceivably. I don’t know.”

  The state agents were entangling themselves in a thorny thicket. They couldn’t agree on what the hairs had been put into, who had given them to Earl Wells, or when. They didn’t even know how many hairs were supposedly found on the bed and examined.

  At Elmore’s first trial, Jones, in his opening statement said “there were found fifty-three hairs.” When Earl Wells was on the stand, Jones showed him State Exhibit 58 and asked if it contained “fifty-three hairs gathered from the bed of the deceased, Dorothy Edwards.” Wells corrected him: there were only forty-nine hairs in the bag when he received it. He went on to say that there were only forty-two left, because he had taken seven out and mounted them on slides for microscopic examination. And Wells wasn’t sure how many slides he had used. “There could have been two, three, four, five, multiple hairs, single hairs mounted,” he told Jensen at the PCR. “I’m not sure.”

  “Do those slides exist?” Jensen asked Wells.

  “They existed at one time, yes, sir.”

  Jensen pointed out to Wells, and Judge Kinard, that no slides were introduced into evidence at Elmore’s trials.

  The state’s case was beginning to resemble Pinocchio’s nose. And it was about to grow in length. Parnell had testified that he dropped off the hairs to Wells “midmorning on the nineteenth.”

  That is not what Wells testified.

  It was “one or two in the morning” of the nineteenth when he examined the evidence, he said in answer to a question from Jensen. He’d been at home when he got a call asking him to go down to SLED headquarters, he explained. He was met there by Parnell, who was on his way from Greenwood to Charleston with the victim’s body, according to Wells. He said, he had a clear recollection. “The body was in a body bag,” he said, brought “into the laboratory on a gurney.” At that time, Wells said, he was given a baggie with a “quantity of hair,” which he said he was told had come from the bed of Mrs. Edwards. “I examined the questioned hair under a microscope to determine, number one, possible racial origin.”

  “Did you reach any conclusions at that time from your examination?” Jensen asked.

  “I identified the hair as being of a Negroid race origin.”

  Wells continued. The hairs had a reddish tint to them, he said, and he had immediately called the Greenwood Police Department and told the person he spoke to that the hairs were “from a Negroid individual with reddish-black hair.” The policeman replied that he knew someone in Greenwood County who had those characteristics, Wells testified.

  But it was not possible for Wells to have seen the body at one or two in the morning. Mrs. Edwards’s body was in the cooler at Self Memorial Hospital then, secured by evidence tape, Sgt. John Owen recorded in his four-page police report prepared at the time.

  He had removed it at 6:15 a.m. on the morning of the nineteenth, Owen wrote, and then he and two other officers drove the body to the medical university in Charleston, 196 miles across the state. They arrived there at 10:15. Owen had a reputation on the force for being a stickler for detail, for taking his job very seriously, too seriously in the view of some officers. He’d even give his mother a speeding ticket, they said.

  At 4:09 p.m., Owen and the others left Charleston with the body and the evidence Dr. Conradi had gathered during her autopsy, Owen went on. They arrived at SLED headquarters just before seven. “I met Lt. Wells in the Chemistry Dept.,” Owen wrote. “This evidence was surrendered to him at 6:59 p.m. on January 19th, 1982.”

  This was some sixteen hours after Wells claimed to have examined it.

  Undercutting Wells’s testimony and bolstering the conclusion that no hairs were found on the bed are the police reports and court proceedings prior to trial. In none of them is there any mention of any hairs of any color on Mrs. Edwards’s bed.

  Sergeant Johnson, who was initially in charge of the investigation at the crime scene, said in his report that evidence gathered in the house had been turned over to Owen. In his report, Owen wrote: “This evidence consisted of: one pair of needle nose pliers, One case pairing knife, One cake knife, or spatchler marked Gitie’s Blade, One upper denture, One fragment dentures, One fragments ashtray, One bottle tongs, One pill bottle, and color Photographs of the position of the body.” Nothing about any hairs on the bed.

  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.

  Capt. Coursey called for Sled crime scene investigators.

  Lt. Dan DeFreese found a handprint of the defendant at the scene. He gathered much other evidence at the scene also.

  Got defendants bloody clothes from home of his mother in Abbeville.

  Got shoes off his feet (blood on shoes).

  Got head hair and pubic hair samples (combed & pulled).

  Got saliva & blood samples.

  Don’t have an autopsy report yet, but the Dr. said there were many injuries and evidence of sexual assault.

  A cancelled check was found in her latest statement from the bank which was made out to the defendant. That along with a print that was found at the scene is how we got started looking for the defendant.

  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 arrestin
g 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.

  AT 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.

  SUMMING UP

  “MISCOUNTED, 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 maj
ority 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.”

  “… MAY WELL NOT BE GUILTY”

  SIX 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.