Anatomy of Injustice

by Raymond Bonner

  In light of Bessemer, Judge Kinard’s conduct was even more judiciously egregious. It wasn’t a proposed order that he adopted verbatim. He took the state’s “Memorandum of Law in Opposition to the Application for Post-Conviction Relief” and made it his “Order Denying Application for Post-Conviction Relief in Its Entirety.” He didn’t modify a paragraph, a word, a comma. He didn’t even clean up the typos.

  When discussing the fingerprint evidence, Judge Kinard’s order reads: “The Applicant also contends that counsel should have acquired fingerprint experts to challenge the state’s findings. This issue is thoroughly addressed in Section 4 of this Brief which is incorporated herein by reference.” But this wasn’t a brief. Lawyers write briefs. Judges, and courts, issue orders.

  Addressing Dr. Conradi’s testimony and the differences between her and Dr. Arden, Judge Kinard’s order reads: “(Respondent would incorporate by reference its argument in Argument 15, pages 145–177, on ineffectiveness of resentencing counsel with respect to the testimony of Dr. Conradi, pages 158–172.)” This language was verbatim from the state’s brief, including the parenthesis. But Judge Kinard was “the Court” not the respondent. Once Elmore had filed for post-conviction relief, the state was the respondent.

  Since he had copied the state’s brief verbatim, Judge Kinard found it “regrettable” that SLED agent DeFreese had improperly testified about one of the fingerprints, and “unfortunate” that SLED agents had neglected to photograph the bed where Elmore’s pubic hairs were allegedly found. He wasn’t troubled by the blue jeans having been given to Henderson, and the inability of the SLED agents to account for where they had been. “Proof of chain of custody need not negate all possibility of tampering, but must establish a complete chain of evidence as far as practicable,” Zelenka/Kinard wrote. He dismissed Gilliam. “James Gilliam did not testify falsely at the three trials—the post conviction relief recantations are the matters not worthy of belief.” He rejected out of hand that Anderson had been drunk during trial or that Beasley was a racist. “The claim that the attorney was acting in an alcoholic haze, or that his co-counsel was unable to zealously perform in Elmore’s behalf due to alleged racist attitudes, is without merit and not supported by fact.” Again, this language was lifted directly from Zelenka’s brief.

  Kinard sent the order to the lawyers and accompanied it with a three-paragraph letter. The last sentence reads: “Edward Lee Elmore may well not be guilty and I appreciate the effort put forth by defense counsel and perhaps an appellate court may agree with one of your positions and grant relief.”

  When Holt read that, she stormed down the hall to Blume’s office, hysterical. “What the hell’s the matter with you?” he said. “Elmore,” she replied, and threw the letter on the floor.

  In all his years representing men on death row, Blume had never seen anything like it. The judge had concluded that Elmore might well not be guilty, but he wouldn’t give him a new trial. It seemed as if he didn’t have the courage.

  It was a defining moment for Holt. Until now, she thought Elmore would get a new trial, that eventually justice would prevail, that he wouldn’t be executed for a crime he didn’t commit. “If he can say ‘he might be innocent,’ but then sign that order, all hope is lost,” she said. Holt enlarged the sentence and taped it on a wall in her spartan office. Kinard’s remark further deepened her commitment, not that it ever wavered. This was not to be her last disappointment.

  ON THE PERSONAL FRONT, however, Diana had cause for joy. Five months after Kinard’s order, at eleven a.m. on Saturday, May 31, 1997, Holt, about to turn thirty-nine, walked down the aisle of Washington Street United Methodist Church and said her vows with Kevin Bell. When John Blume saw her, he had to suppress a giggle. This woman, whom he was used to seeing in blue jeans, was dressed in a cream-colored bridal gown. Holt and Bell had met during her first summer in Columbia, and she moved into his house the following summer while studying for the South Carolina bar exam. At some point, she told him there was something he needed to know about her if their relationship was going to continue. They sat on a knoll behind his house on the cul-de-sac, and she said what she had to say. He shrugged. This time Diana wouldn’t take her husband’s name, but this marriage, her fourth, would last.

  CHAPTER SEVEN

  The Search for Item T

  BECAUSE ELMORE had been denied a new trial by Judge Kinard, his next stop was the South Carolina Supreme Court. But before the justices ruled—indeed, even before Elmore’s lawyers had appeared in front of them to make their arguments—a bureaucratic action jolted the case. Holt and Jensen wanted certain of the Elmore exhibits brought to Columbia to be available for examination by the high court justices should they wish to view them in light of the arguments advanced. Holt drafted a proposed order and sent it to the court. On July 2, 1998, the court issued a routine “transportation order” to the Greenwood County clerk. It commanded him to send the listed exhibits. Ten weeks later, the Greenwood sheriff delivered only some of the items. Certain exhibits couldn’t be located, the Greenwood clerk informed the supreme court. Among the missing articles was what was identified as “Item T.”

  Item T was innocuous enough on its face. It consisted of four glass slides on which several hairs had been mounted. These were not the hairs that Parnell claimed to have picked off the bed. These were hairs that Dr. Conradi had found on Mrs. Edwards’s body during the autopsy. “Examination of the chest and abdomen reveals occasional dark colored tightly curled apparent pubic hair,” she wrote in her autopsy report. Sergeant Owen had given these hairs, along with other evidence, to Earl Wells when delivering the body to SLED. Wells mounted them on slides and examined them. He placed a T on each slide and put all four into a padded cardboard slide holder, about three inches by five inches. On the front, in red block letters, was stamped MEDICAL SPECIMEN. Above that, Wells wrote the case number, 82–297. He marked the holder with a T. It was never given to Elmore’s lawyers. When Jensen read the trial transcript, he was “immensely curious” and deeply suspicious. This was the evidence that Jones told Judge Burnett had justified Elmore’s arrest, and it hadn’t been given to the defense.

  In a criminal trial, the state is required to give the defense a list of the evidence it intends to introduce and the names of witnesses it plans to call. Above all, the prosecutor is obligated to turn over anything that the police or investigators have uncovered during their investigation that might be beneficial to the defendant. The Supreme Court established this rule in 1963 in a landmark case, Brady v. Maryland. John Brady and his partner, Charles Boblit, had lain in wait for a businessman to return home in order to steal his car and money. They hit him over the head, stuffed him back into his car, and drove him into the nearby woods, where he was strangled to death. The abductors split the $250 they found in the victim’s wallet. Brady and Boblit were tried separately. Both were convicted of first-degree murder and sentenced to death. Several years later, in the course of Brady’s appeals, his lawyers discovered a statement Boblit had given to the police in which Boblit said he had strangled the victim. The prosecutor had not given the statement to Brady’s lawyers. On appeal, Brady’s lawyers argued that the prosecution’s failure to give the defense Boblit’s statement had deprived Brady of a fair trial. The Supreme Court agreed. “The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution,” Justice Douglas wrote.

  Underlying the Supreme Court’s decision was a bedrock principle of the American judicial system: the duty of the prosecution is not to obtain a conviction but to do justice. Or, as Justice Douglas put it, “Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.”

  This tenet is so integral to American justice that the Supreme Court has said the prosecutor has more
than just an obligation to turn over any exculpatory evidence of which he is aware. He must go further and search for such evidence that any officer of the state might have. “The individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police,” Justice Souter wrote in Kyles v. Whitley.

  After examining the four Item T slides, Earl Wells wrote in his report that he had found only “blue fibers.” In other words, he was saying that Dr. Conradi had been wrong: there were no hairs on the body. A decade on, Holt and Jensen mounted a tireless search, not just for the missing Item T but for all the evidence and exhibits in the Elmore case, whether they had been introduced at trial or not.

  In June 1994, Jensen wrote Zelenka: “I would also like to know whether you have been able to locate the SLED exhibits that were not introduced into evidence at any of the trials. These exhibits include several items of physical evidence that were either collected at the crime scene or taken from the body of the victim by Dr. Conradi and delivered to SLED.”

  Zelenka sent a fax to SLED in which he asked if they had anything from the Elmore case there. “No physical evidence remains at SLED regarding this case,” Lt. Michael J. Brown, supervisory special agent, wrote back.

  Jensen was frustrated, and at the PCR in 1995 he told Judge Kinard, “I want to make it clear for the record that we have attempted to obtain those exhibits and that the exhibits are simply not there. I don’t want to be surprised at a later date when these other SLED exhibits suddenly appear.”

  Zelenka assured Kinard that the state was not holding back. “We’ve been doing diligent searches both of the records of the Greenwood County Sheriff’s Department and we’ve made request of the Greenwood City Police Department on at least three occasions to search all their records for the existence of any further evidence.” Everything that was found had been turned over to Elmore’s lawyers, he assured the court.

  During the PCR, Jensen asked Wells if he had any slides or other items he had examined in the case. Wells assured him that he did not. He reiterated that “my microscopic examination revealed that the only thing present in that item was blue fibers; no hair.”

  Holt and Jensen were stymied. Then they got an unexpected break from unexpected quarters. When not all the exhibits requested in the South Carolina Supreme Court’s transportation order had been brought to Columbia, the court clerk called the attorney general’s office and asked him to look for the missing items.

  Zelenka again called Wells. Look for evidence in the Elmore case, he told him.

  A few days later, during a conversation on another case, Wells told Zelenka, “I’ve got some news for you.” He had found evidence from the Elmore case: Item T. Wells said he had found it at the back of a file drawer in his twin-pedestal government-issue metal desk.

  Zelenka was not happy, and he subsequently concluded that Wells had had Item T in his desk all along, for more than sixteen years—the entire time that SLED had been telling Zelenka, and Zelenka had been making representations to the court, that no further evidence could be found; the entire time that Wells had sworn under oath that he did not have Item T.

  A day or two later, Holt happened to call Zelenka on another matter. During their conversation, he told her that Wells had found this material. She was staggered. “What? What are you saying?” Her white cordless phone to her ear, she paced from her office, through the den, into the living room, back and around. “You say you found what?”

  At this point, Zelenka wasn’t about to look at the evidence without Holt being present, and Holt wasn’t about to allow him to. The lawyers agreed to meet at Wells’s office on a given date. When they arrived, Wells had another bombshell. He had looked at the slides again, he said, and there weren’t only blue fibers. There were hairs, too. Holt realized Wells had known this from the outset, back in 1982 when he examined the slides. With the naked eye, you can tell a fiber from a hair. Further, under a microscope, it is easy to determine the race of a hair, whether it is Caucasian or Negroid, and whether it is a pubic hair or a head hair.

  Zelenka was reeling. How could he argue that, under Brady and Kyles, Item T should not have been turned over to Elmore’s lawyers at trial? It was clearly time for yet another search for the evidence in the case. Holt and Zelenka drove to Greenwood, separately. They met in the parking lot behind the courthouse. Inside, they told the clerk that they were looking for the exhibits in the Elmore case. “Hasn’t that boy been executed yet?” the clerk asked. He’s had three trials, that’s enough, the clerk said. Holt was enraged. “Good thing he hasn’t been, since you people have been withholding evidence,” she snapped. The clerk told them the exhibits weren’t there, that they were at the police station.

  Leaving the courthouse, Holt rounded on Zelenka. How the hell did he think Elmore got a fair trial when the court that was supposed to be neutral had that attitude?

  She didn’t expect to fare much better at the police station. She had gone there with Sergeant Johnson prior to the PCR, and he had assured her there was no evidence from the case to be found. Zelenka and Holt walked into the station. Zelenka identified himself to the duty officer, Wayne Hughes, and introduced Holt. He told Hughes they were looking for the exhibits in the Elmore case.

  Hughes got up, went through a door off to the right, and returned pushing a cart piled with exhibits. Holt and Zelenka examined them, then sat talking about the exhibits that still hadn’t been located. Hughes interrupted. Excuse me for listening, he said. But if you want me to do a quick look I will. He left again.

  Zelenka was growing increasingly uneasy. If Hughes brought out anything more, he might have to go home and quit his job, if he wasn’t fired, he said to Holt.

  He had barely spoken when Hughes returned with two large boxes and a mailing tube. Written on their sides, in large, bold letters: EDWARD LEE ELMORE.

  Holt gaped. This was the very material she and Jensen had been trying to get. Zelenka was dismayed. This was the material Zelenka had assured Judge Kinard didn’t exist.

  The boxes were packed with potentially explosive evidence: a piece of bedroom carpet, a piece of gum found in the backyard, the robe Mrs. Edwards was wearing on the night she was murdered. If she had pulled out forty-some pubic hairs while being assaulted, presumably there’d be one or two on her robe. Holt had the robe examined. There were no Negroid hairs on it. Elmore must have undressed her, raped her, had her put her robe back on, and then killed her, Holt would say scathingly.

  Still, the top prize was Item T. Not only had it been found, but Wells now admitted that it was hair. But whose hair was it? Was it Negroid or Caucasian?

  Holt sought, and received, the court’s permission to have Item T examined by an analytical microscopist in Chicago, Skip Palenik. Fifty years old, Palenik liked to say his career began when he started looking through a microscope as an eight-year-old. He had worked on numerous high-profile cases, including the bombing of the federal building in Oklahoma. About 80 percent of the time he worked for the prosecution. Holt flew to O’Hare, rented a car, and drove thirty miles west to Palenik’s office in a medical building in suburban Elgin, Illinois. She had Item T in her hand. She wasn’t about to let it out of her sight. She spent the night in Chicago, flying home the next day.

  Holt spent most of the day with Palenik as he examined each slide with a stereomicroscope and a polarizing microscope. He further examined slides 1 and 4 with a comparison microscope.

  His findings:

  Slide 1: A single pubic hair, Caucasian. He compared it with hairs from Mrs. Edwards. No match.

  Slide 2: Three hairs, which may or may not have been human. One brown Caucasian hair fragment. There were also tiny bits of “blue dyed kemp wool fiber,” probably from a carpet.

  Slide 3: A hair badly mounted, so hard to be certain, but appeared to be “a light brown Caucasian head hair.” Unlike most head hairs from the victim, which were white, he noted.

  Slide 4: A whi
te Caucasian head hair with some dried blood on it. Could be the victim’s, “but there is a finite likelihood that it could originate from another white haired person.”

  He concluded, “None of these hairs are microscopically similar to Mr. Elmore’s head or pubic hair.”

  Palenik sent Holt a letter with his results. It was June 1999, six years to the month since she had started working on the Elmore case. She called Zelenka. Surely he’d agree to a new trial now, she told him. His obligation, she reminded him, was to do justice.

  In a manual for government appellate lawyers, Zelenka contrasted their role with that of defense lawyers. The latter, he wrote, were bound by the Constitution to provide a vigorous defense. “Our role as prosecutors, however, is much higher—to be a minister of justice,” he wrote. That is the noble legal theory. The reality is too often far removed, as Zelenka demonstrated.

  If there is a flaw in the adversarial system of justice that has developed in America, it is that the adversarial nature of it outweighs justice. Prosecutors want to win at trial. Appellate lawyers want to win on appeal. Justice often gets lost. Moreover, for an attorney general’s office to say that new evidence supports the inmate’s claim of innocence, or that his trial was constitutionally flawed, is an admission of error by the state. In Elmore’s case, it would mean admitting that such errors had been committed three times. In fighting Elmore’s lawyers at every turn, Don Zelenka and the attorney general’s office were behaving like counterparts around the country.