Anatomy of Injustice

by Raymond Bonner

  Those photography courses she had taken and excelled in at Houston Technical Institute now served her well. She was assigned to take mug shots of incoming inmates. The photo lab was next to the law library. Ellen Flood, who was serving a life sentence for killing her husband with arsenic, was in charge. She befriended Diana and persuaded the warden to let her work in the library.

  Diana was beginning to develop an interest in the law, an instinct that had lain dormant since the sixth grade. She and Ellen became the prison’s de facto legal aid office.

  Donna Lee Peck Aucoin, convicted of robbery, came to them for help. Aucoin was retarded, possibly suffering from Down syndrome. How could she be held accountable for what she did? Diana thought. Why was she not in a mental institution? Diana wanted Aucoin’s file. Displaying the boldness that would become her signature, she wrote directly to the judge (with a few spelling errors):

  On numerous occasions I have written to the Clerk of Court for the 16th Judicial District, asking for a copy of Ms. Aucoins Bill of Indictment and a full word for word copy of the minutes of the Court. I have continually been ignored. It is imperitive that I obtain true copy’s of both documents.…

  … I do not understand why the Clerk of the Court has chosen to ignore my requests and I am very sorry that I had to disturb you as a result of it. I am in no position to question your decision to send Ms. Aucoin to a penitentiary, but if you know of any information pertaining to Ms. Aucoin that would be of help to me, relating to such a decision would you please forward it to me. No disrespect whatsoever is intended towards you or the position you hold. I just find it hard to understand how a person in Ms. Aucoin mental condition was committed to this sort of institution.

  It was an impressive document for a seventeen-year-old without a high school education.

  In another case, on behalf of an inmate who was serving two consecutive sentences, Diana wrote the judge that the sentences should run concurrently. The judge agreed. It gave Diana a good feeling that she could make a difference.

  Diana matured, got off drugs, and learned a lot in prison. She met the types most lawyers never meet, except as clients. She developed empathy. She realized how close she had come to going over the edge. A tall blond with hair to her waist, Catherine “Kitty” Dodds, drove the lesson home. Arrogant and mean as hell, Dodds had been convicted of hiring two teenagers to kill her husband, a New Orleans police officer. She was first sentenced to die, before her punishment was commuted to life. That could too easily be me, Diana understood. (Dodds later acquired international renown. After escaping from prison, she settled in a small town in Missouri, adopting a new name and life, until she was caught by the FBI and sent back to prison. She was released in 1992 and became the subject of a television movie, in which she was portrayed as a battered woman and victim.)

  Prison officials liked Diana. They believed in rehabilitation, and Diana was their prize exhibit. They sent her to speak to sociology and criminology classes at Louisiana State University. She was a good public face—blond, blue-eyed, more educated than most, young and soft-looking. In her photo for the Louisiana Governor’s Conference on Women in 1976, she had long hair and was wearing a low-cut dress and a white necklace—she could have been mistaken for a fun-loving coed.

  Diana’s mother retained a young lawyer fresh out of LSU, paying him $500 to get her daughter a pardon. The prison warden, who was fond of Diana, told her she would be better off appearing before the board with her mother and family friends, rather than being represented by a slick lawyer. Diana and her mother dismissed the lawyer, but it didn’t hurt his career: C. James Carville Jr. went on to politics and fame.

  On October 30, 1977, Diana was released from prison and boarded a Greyhound for Texas. Under the release terms, she was not allowed to leave the state of Louisiana until the thirty-first, and when the bus crossed the border before midnight, she had some nervous moments, fearing it would be pulled over and she would be sent back.

  Diana got a full pardon, which Louisiana grants first offenders on completion of their jail time. All her rights were restored. The State Bar of Texas knew of Holt’s conviction for armed robbery when it approved her application to take the bar exam. The South Carolina Bar knew of the conviction and likewise decided she was of sufficient moral character to be a lawyer. The State Bar of Georgia approved her as well.

  But the attorney general of South Carolina and the chief of SLED didn’t give a damn about the judgments of others. They had their own agenda.

  As part of the investigation that the South Carolina Supreme Court had ordered in the Johnson case, Hess would be called to testify that she had lied at Johnson’s trial. If she declined, which she well might, given the potential criminal charges she was facing, then John Blume would introduce into evidence the affidavit Hess had given Holt. Blume would have to put Holt on the stand to vouch for the affidavit’s authenticity. The state would seek to undermine Holt’s credibility with her felony conviction. The attorney general subpoenaed her for a deposition. On Friday, April 21, 2000, Holt and Blume walked to the attorney general’s office, where Don Zelenka was waiting for them. He was going to take her deposition. Blume was representing his former protégé turned colleague. When Holt had first told John about the incident in New Orleans and her time in prison, he was not pleased. He worried that if the information became public, it would hurt the center’s clients, that conservatives would say, in effect, What do you expect from death penalty lawyers? They’re no better than their clients. For weeks, Blume and Holt barely spoke. Eventually, however, Blume came to see her story as one of redemption.

  Walking into the deposition, Blume and Holt were not sure how much Zelenka knew about her past. The deposition began routinely. Zelenka asked her name, age, and date of birth.

  “I always think I’m still eighteen,” she said, never able to resist a quip.

  “I keep thinking I’m forty,” said Zelenka, who was over fifty.

  That brought some laughter. The last.

  Zelenka began methodically asking her about her past—where she had gone to high school, where she had lived and worked in Texas.

  Holt had trouble remembering all the dates in her turbulent past. “If I had known y’all were going to be asking about this stuff, I would have researched it,” she said.

  “Just general questions,” Zelenka responded.

  Abruptly, the mood changed.

  “Description of anything in your background that could be used to discredit you or prejudice the court?” Zelenka asked in the cryptic way lawyers sometimes use in depositions. “For example, have you ever been arrested for DUI or other offenses?” He knew the answer, of course.

  Blume objected. This was irrelevant. But he and Diana still weren’t sure what Zelenka had.

  “Did you go by the name of Diana Lynn Nerren in 1975?” Zelenka asked.

  Now they knew. They looked at each other. What do you want to do? he asked. I’ll answer, let’s go, she said. “You’re the bravest person I know,” Blume said. The memory of his reaction, those words, moved her years after.

  “I think all of this is irrelevant,” Blume told Zelenka. “I also think it is unbelievably tacky.” He said he would move to have the deposition sealed. Zelenka said he would not agree to seal the deposition or to any limitations on its use. This was down and dirty. He turned back to Diana and asked her about the conviction.

  She started the answer where she thought she should, with the custody proceeding, where she’d been called as a witness by her mother, to tell the judge about the years of sexual abuse at the hands of her stepfather.

  Zelenka interrupted. That wasn’t necessary. He just wanted to know about the conviction.

  “May I finish?” she said icily.

  “But I’m telling you, you don’t need to go into that.”

  Holt’s attitude was, No, buddy, you want the story, you’re going to get the whole story, not just the parts that suit you. She explained what had happened, the introductio
n of the nude pictures and, above all, the brutal cross-examination by her stepfather’s lawyer.

  “It was extraordinarily traumatic, as you can imagine,” she told Zelenka. Never quite able to hold her tongue, she said, “It was not unlike some of the cross-examinations of some of the people who are sentenced to death.”

  She went on: “There were I don’t know how many hundreds of nude photographs of myself and my little sister that were then introduced into that court record.” Holt started to cry when she told about the judge ordering that child protective services take custody of her sister.

  The deposition lasted nearly four hours.

  That evening, Diana’s husband, Kevin Bell, called Zelenka at home. Zelenka’s wife answered. Bell identified himself and was surprised when Zelenka came to the phone. Bell was furious. “My mother would not have been proud of my language,” he recalled. He yelled at Zelenka. He said his wife was in a corner, a basket case. What Zelenka was doing was unethical and unprofessional. How in the hell did he get the information? Bell demanded to know. Louisiana law prohibits authorities from releasing criminal records, except to other law enforcement agencies, and then only if it is part of a criminal investigation; that does not include using the information to impeach a witness.

  Zelenka didn’t have just photocopies of the Louisiana report; he had obtained the carbon copies directly from the files. What the hell did Zelenka tell the state of Louisiana? Bell accused him of lying. Zelenka didn’t answer Bell’s questions and charges. He didn’t argue, and he didn’t hang up. He just took it. Zelenka told Bell that a SLED agent had brought the information to him and that he had run a background check to confirm it. Zelenka also said that he was referring the matter to the head of the criminal division of the attorney general’s office. The SLED agent, whoever he was, had probably violated federal and South Carolina privacy laws. Nothing ever happened.

  When the hearing in the Johnson case took place, Blume, Holt, and Zelenka went together into the judge’s chambers. Zelenka had a thirty-page memorandum, essentially portraying Holt as trailer-park trash. Zelenka told the judge, William P. Keesley, that he wanted to use the material, including the conviction, to impeach Holt.

  Judge Keesley began reading. He was visibly disgusted.

  He was not going to allow Zelenka to do this, he said. What happened took place twenty-five years ago, when Holt was young. She made it through the board of character and fitness in Texas and in South Carolina, the judge said. He advised Zelenka against proceeding as he planned, but if he wanted to make a record, he could. Zelenka said he would not.

  Holt and Blume walked out. They sagged, hugged each other, and broke into tears.

  THE SOUTH CAROLINA SUPREME COURT rejected Johnson’s appeal. To get a new trial, the majority wrote, the defendant had to show that the new evidence—in this case, Hess’s sworn confession—would “probably change the result” of the original trial. That standard had not been met. “We do not believe it is probable that a jury would find Hess credible given her prior inconsistent statements,” Justice James E. Moore wrote for the court. He had been the judge at Elmore’s second trial. Joining him in the opinion was Justice E. C. Burnett III. He had been the judge in the first Elmore trial.

  The dissents were short but powerful. “I believe that to deny Johnson a new trial in the face of a confession by someone who was admittedly present when the murder was committed would constitute a denial of fundamental fairness shocking to the universal sense of justice,” Justice Waller wrote in a three-paragraph opinion. “Our system of justice dictates that before Johnson is put to death he must be given an opportunity to present such evidence to a jury of his peers.”

  The United States Supreme Court rejected Johnson’s appeal. Johnson’s supporters mounted a campaign to persuade South Carolina governor James Hodges to grant him clemency. The mother of Bruce Smalls, the state trooper Johnson was convicted of murdering, issued a public letter urging clemency. Smalls’s sister, Pat, and son, Kevin, asked the governor to uphold the sentence.

  Governors rarely grant clemency in capital cases, the extraordinary exception being Illinois governor George Ryan. In January 2003, three years after he had declared a moratorium and appointed a blue-ribbon commission to examine how to reform the state’s death penalty, he commuted the sentences of 167 death row inmates on a single day. It was a monumental step, all the more so because as a legislator, in 1977, Ryan had voted to reinstate the death penalty, and when he became governor, in 1999, he was “a firm believer in the American system of justice and the death penalty,” he said in announcing the mass commutation. “I believed that the ultimate penalty for the taking of a life was administered in a just and fair manner.”

  He could no longer be so confident, not in light of “the systematic failures of our capital punishment system” two reporters at the Chicago Tribune, Steve Mills and Ken Armstrong, had revealed. The reporters had looked at some three hundred capital cases in Illinois. Nearly half had been reversed on appeal, for a new trial on guilt or innocence or for resentencing.

  “Now, how many of you people here today that are professionals can call your life a success if you’re only fifty percent successful?” Ryan asked rhetorically in his speech at Northwestern University Law School, where a joint clinic with the journalism school had resulted in several men being released from death row. “Certainly, I can’t as a pharmacist. I don’t think doctors can.”

  Ryan deliberately chose to make the announcement at Northwestern, where the work of the Center on Wrongful Convictions—a combined program of the law and journalism schools—had resulted in several men being released from Illinois’s death row. The room was jammed with some five hundred law students, journalism students, and anti–death penalty activists.

  Ryan said that more than two-thirds of the death row inmates were African Americans and that forty-six had been convicted on the basis of testimony from jailhouse informants.

  “I can recall looking at these cases from the Mills/Armstrong series, and I asked myself and my staff: How does this happen? How in God’s name does that happen? In America, how does it happen?”

  Ryan said that he had been lobbied to end the death penalty by many international bodies and individuals, including the European Union, the Vatican, Nelson Mandela, and Archbishop Desmond Tutu.

  “To take the life when a life has been lost is revenge. It’s not justice,” Bishop Tutu wrote.

  Only the day before, Nelson Mandela had called. The essence of his message, Ryan told those gathered, was, “America is a beacon of fairness and justice and the death penalty really doesn’t pay homage to that kind of operation.”

  Ryan noted that the death penalty had been abolished by every European country, as well as Canada, South Africa, and nearly every country in Latin America, including Mexico. That leaves the United States “in partners in death with several Third World countries,” Ryan told the audience.

  As Ryan neared the end of his often emotional speech, he borrowed from Justice Blackmun: “I shall no longer tinker with the machinery of death.” (In 2010, Illinois abolished the death penalty. New Jersey had abolished it in 2007 and New Mexico in 2009.)

  No South Carolina governor had ever granted clemency. And now it was an election year, with Hodges, a Democrat, facing a potential challenge from Don Zelenka’s boss, Attorney General Charlie Condon, who once proposed that the electric chair be replaced by an electric couch so there could be simultaneous executions. Hodges refused clemency.

  As Johnson faced death, Diana talked to him almost daily, sometimes for two hours. She was convinced he was innocent. On execution day, she went to death row to be with him. He was chain-smoking and went from talking a blue streak to being somber. Another lawyer, Fielding Pringle, who had worked on the clemency petition, came in. She was strikingly attractive, and Holt noticed how Johnson lit up. She had to smile. He’s a red-blooded male and still kicking, she thought to herself.

  Diana was with him for almost seven
hours. As she left, his last words were, “I’ll see you at the beach.” He’d grown up on the North Carolina shore, and he and his sister Lori played there together. He had a favorite spot on the beach, where he loved watching the sun go down behind him. He had pictures his sister had taken at the beach, and he gave them to Diana. She told him she was going to sit at the beach for him one last time.

  On May 3, 2002, Richard Charles Johnson, thirty-nine years old, ordered for his last meal fried shrimp, fried oysters, French fries, chocolate cake, and iced tea. When he finished, he was strapped to a gurney, needles were stuck in his arms, and his life was ended with a lethal injection. At his funeral, before the casket was closed, his sister managed to cut some locks from his hair. A few days later, she and Diana went to the beach in North Carolina, waded into the surf, and let them go.

  The Johnson case was a turning point for Holt. She was convinced Johnson was innocent. The politics surrounding the case disgusted her. She had now made the journey to the position of firm opposition to capital punishment, though still not on moral grounds. She simply believed “there is no way to implement it fairly. Despite all legal safeguards, whether one gets death or not is dependent on geography, the elected official with the power to seek it, the color of his skin, gender, the color of the victim’s skin, the victim’s gender, wealth of any of those, poverty of the defendant, mental health of any of those, and judges with agendas, etc. I haven’t begun to address the innocence or not question, the integrity of law enforcement, the competence of law enforcement, the competence of forensic analyst, and on and on and on.”

  Johnson was the twenty-eighth man Elmore had watched leave his cell and not return.