Anatomy of Injustice

by Raymond Bonner

  Holt filed for a writ of habeas corpus with Judge Norton on July 5, 2005. It was the beginning of the process that would have the federal courts address whether Elmore had been denied his constitutional rights. Much of the brief was written by Marta Kahn. After what Diana considered to be the South Carolina Supreme Court’s inexplicable ruling against Elmore, Holt was distraught and generally exhausted. She asked Marta if she’d like to help with the case. Not yet forty, Marta had given up full-time work as a death penalty lawyer. In just two and a half years in Virginia, twenty-five men were executed. When she got married and had a child, she had stepped away from death penalty representation—it took too much out of her, physically and emotionally. The rage and anger she felt toward the system were not things she wanted to be carrying around while she was raising a child. But she remained deeply committed to fighting what she saw as injustice, and Elmore’s case exemplified that as much as any she’d seen. Marta was a law lawyer, and her brief was a brilliant exposition of the constitutional issues. They were basically the same ones that had been presented to the South Carolina Supreme Court—ineffective assistance of counsel, prosecutorial misconduct, exclusion of blacks from the jury.

  But there was one new claim as well: that Elmore was mentally retarded, and therefore his execution was barred in light of the recent Supreme Court ruling (in Atkins v. Virginia). This claim was buried three pages from the end of the forty-nine-page legal brief. At this point, Diana had all but given up on getting Elmore justice, which would mean complete exoneration for a crime she didn’t believe he committed. She just wanted to keep him from being executed. A finding that he was mentally retarded would do that.

  For years, opponents of the death penalty, unable to persuade the Supreme Court to abolish capital punishment altogether, sought to limit its use by expanding the categories of individuals whom the state could not execute. One exemption they sought was for the mentally retarded.

  The issue of a criminal defendant’s mental state is widely misunderstood, and mental retardation is often confused with insanity. “We should never execute the mentally retarded,” President George W. Bush said in 2001, when the issue was being hotly debated. He added, “And our court system protects people who don’t understand the nature of the crime they’ve committed nor the punishment they are about to receive.”

  But in this latter statement, Bush was talking about a person who is legally insane. Standards have changed over time and are not identical in every state, but the general test for insanity is whether the defendant was able to distinguish right from wrong at the time of the crime. Paranoid schizophrenia and severe psychosis rob the individual of the ability to know right from wrong. Most mentally retarded people are not insane, and vice versa. John W. Hinckley Jr., who shot President Reagan in 1981, was found not guilty by reason of insanity. He was not mentally retarded. Indeed, his IQ was 113.

  In 1989, the court addressed the issue of executing the mentally retarded in the case of John Paul Penry. He had raped and stabbed to death—with a scissors—a twenty-two-year-old woman, Pamela Moseley Carpenter. His IQ was 60, and he had the functioning capacity of a seven-year-old; on death row, he spent his days coloring with crayons and looking at comic books he couldn’t read. The State of Texas did not accept that he was retarded. He was a “sociopath,” said a prosecutor in the case, and had been sent to schools for the mentally retarded because he was “an uncontrollable child.” In a landmark decision, Penry v. Lynaugh, the Supreme Court reversed Penry’s conviction on the grounds that the judge had failed to instruct the jury that it could consider his mental capacity as a factor in the sentencing. But the court held that it was not a violation of the Eighth Amendment ban on cruel and unusual punishment to execute someone who was mentally retarded. There was not a national consensus against doing so, the court said. At the time, of the thirty-eight capital punishment states, all but two permitted the execution of a person who was mentally retarded. Justice O’Connor wrote the majority opinion.

  Thirteen years later, the issue was before the court again, in Atkins v. Virginia. Twenty-one death penalty states now banned executing an individual who was mentally retarded. Finding a “changing national consensus,” the court overturned Penry. The execution of someone who was mentally retarded was proscribed by the Eighth Amendment, the court ruled in a 6–3 decision. Justice O’Connor, persuaded by the trend among the states, joined the majority. The court’s conservative justices—Scalia, Thomas, and Rehnquist—disagreed. “The arrogance of this assumption of power takes one’s breath away,” Scalia wrote. The court was engaged in “incremental abolition” of the death penalty, he wrote (which was, of course, just what opponents of the death penalty wanted).

  The Supreme Court left it up to the states to decide how to implement its decision, both for defendants in future capital cases and for men on death row, such as Elmore.

  Holt raised Elmore’s Atkins claim with a motion for another post-conviction review, which she filed in September 2005. The state’s response was simple: too late. Under South Carolina law, legal claims in criminal cases have to be raised within one year after they become available. Since Atkins was decided in June 2002, that made the deadline for Elmore’s lawyers June 2003. “Simply put,” Zelenka said, the failure of Elmore’s lawyers to file their mental retardation claim by June 20, 2003, required the court to deny their request.

  After each side had argued their case in written briefs, Zelenka and Jensen squared off in court. It was two fine lawyers at their best. The hearing, in February, 2007, was held in a small courtroom in the Richland County Judicial Center, in downtown Columbia. Five armed guards watched over Elmore, wearing a green prison-issue jumpsuit with SCDC (South Carolina Department of Corrections) printed on the back, over a thermal undershirt. The judge was J. Mark Hayes II, a fifty-year-old Spartanburg native with fire-engine-red hair. His background did not bode well for Elmore. While at Wofford College, he had been an intern for Strom Thurmond, and he had begun his legal career as a clerk for Judge E. C. Burnett III, who had presided over Elmore’s first trial (and who had also attended Wofford).

  Zelenka was convinced that Holt and Jensen were manipulating the system. He argued that they had been aware that Elmore was mentally retarded in 1995, at the time of the first PCR. At that time, Zelenka said, Elmore’s lawyers had retained Dr. Jonathan Venn, a psychologist, and he had testified that Elmore was not mentally retarded.

  Zelenka finished his argument. With the law seemingly in the state’s favor, Jensen abandoned juridical sophistication and adopted a colloquial approach. “I would like to introduce to you Edward Lee Elmore, who I have been representing fifteen years,” Jensen said to Judge Hayes. Never in those fifteen years, in the many times Jensen had been in court with Elmore, had he made such a gesture; it was as if Holt had finally gotten through to him that there was more at stake in this than the legal issues.

  Jensen was on his verbal knees, beseeching the court not to allow Elmore to be executed. “Just listen for a moment, okay? Listen for a moment. And I beg Your Honor’s indulgence.” Jensen proceeded to recite Elmore’s biography: born to a woman who had thirteen children by five different men; living in squalor as a child, in houses without windows, without bathrooms; going to school without shoes; failing first and second grade, and third grade twice; tested in school with an IQ that established him as mentally retarded.

  “This court’s faced with this choice,” Jensen said, invoking emotion more than law. “Say, look, I know he’s mentally retarded, or I know there’s a great likelihood that he’s mentally retarded, that he meets all the requirements of the statute, but you know something? Too bad. Tough luck. There’s a statute of limitations here. I’m not going to exercise any equity powers that I may have in this court to do anything about that.” Was the court “going to walk in at the end of the day and say, Okay, you can be executed, Mr. Elmore? Too bad, too late, your lawyers didn’t wake up in time and that’s your tough luck.”

  Je
nsen was hanging from a precipice and had to explain Dr. Venn’s testimony. Jensen asserted that Venn had addressed only the very narrow issue of Elmore’s alleged statements to police officials Johnson and Henderson: “If I did it, I don’t remember.” Because of Elmore’s limited mental capabilities, he might say something like that without it being true, Venn had testified. “That’s all Dr. Venn opined on,” Jensen said. “And as Mr. Zelenka knows, Dr. Venn did not give any opinion about mental retardation.”

  Jensen finished. He was wrong in his comment about Dr. Venn, and Zelenka was prepared to challenge it. He handed the judge volume 5 of the record in the Elmore case, and directed him to page 843. In response to a question from Jensen, Venn had said: “Mr. Elmore is not mentally retarded, but he’s just a notch above being mentally retarded.” Then Zelenka directed Judge Hayes to pages 1853 and 1854 of the record. In response to a question from Zelenka during cross-examination, Venn repeated what he had said to Jensen: “I do not consider him to be mentally retarded.”

  Zelenka reiterated to Judge Hayes that South Carolina law was unequivocal—the defense has one year to file a claim after it becomes available. “We’re simply asserting that they’re barred, they’re barred from raising this action based upon what has occurred and what they knew and when they knew it.”

  Judge Hayes had listened carefully to the lawyers’ arguments, and his questions demonstrated a greater intellect and search for the truth than any other state judge who had handled Elmore’s case over the last twenty-five years. He bore in on Jensen.

  “So far what I’ve heard is that there was a revelation to counsel that my client might suffer from mental retardation, that lo and behold I did not realize this in my twelve, fifteen years of representing him and now I need to bring it up,” Hayes began, clearly skeptical. Where are the facts that would justify disregarding the very clear statute of limitations? Hayes asked Jensen.

  Jensen knew his legal arguments were weak. He tried contrition. “I have to accept a large measure of the blame,” he said. After Venn testified that Elmore was not mentally retarded, none of Elmore’s lawyers had given much, if any, thought to the issue, Jensen said. It was only after spending more time with Elmore that “we became aware that he is truly mentally retarded.” When the South Carolina Supreme Court ruled against Elmore, Jensen said, his lawyers “had begun to think about the issue of his mental condition in a way we had never thought about it before.”

  It wasn’t terribly persuasive, and once more Jensen ramped up the emotion. “The bottom line is the court cannot carry out a miscarriage of justice. That’s the bottom line. There can’t be a miscarriage of justice. You don’t execute people who are seventeen years old when they committed the crime. You don’t execute people who are mentally retarded when they committed the crime. You can’t do that. It’s a miscarriage of justice. And that shouldn’t hinge on the matter of months that, according to Mr. Zelenka, we were late in filing this petition.”

  Hayes was still troubled. “You’ve said to me, you’ve apologized to it, you’ve put it on the record that I should have done a better job, didn’t recognize it earlier, and that in conversations while we were preparing the federal writ then realized that we really might have a case here, and I want to understand what your position is if you want me to apply equitable provisions to stop the statute of limitations,” Hayes said to Jensen.

  When considerations of equity or justice demand, judges may waive procedural requirements, such as the statute of limitations on filing a claim. But they are reluctant to do so and need to be persuaded by strong arguments. Hayes seemed to want to rule in Elmore’s favor and was looking for something from his lawyers on which to hang his ruling. “I would love to have something to work with,” he said.

  Holt didn’t have a good feeling when she left. Desperate for hope, she found some a few months after the hearing, when Hayes ruled that the state’s Internet Crime Against Children Task Force had abused its authority by using a federal statute to force an Internet company to divulge a defendant’s identity. South Carolina had a higher standard, Hayes ruled. Maybe Holt was grasping for anything, but the ruling suggested to her that Hayes was willing to make unpopular rulings, and against the establishment.

  By the summer of 2007, Elmore’s case had become a bungee cord for Holt. One court decision would send her plummeting, but before she crashed, another court decision would snap her back.

  In May, Judge Norton denied Elmore’s petition for habeas corpus.

  The next month, Judge Hayes issued his ruling on the request for a hearing on the mental retardation issue. The state’s arguments that the one-year statute of limitations barred Elmore’s request were “reasonable and rational,” he wrote in his three-page order. Nevertheless, he was denying the state’s motion to dismiss. The Supreme Court in Atkins had made clear that states should engage in a substantive review of a claim that a death row inmate was mentally retarded. Consequently, he said, Elmore was to be evaluated by the South Carolina Department of Disabilities and Special Needs. It was the first court ruling in Elmore’s favor in two decades, since he had been sentenced to death after his third trial, in 1987.

  Then, on August 3, 2007, Don Zelenka filed the results of the DNA tests. The hairs had been mounted on slides for testing. Several of the slides had hair that matched Elmore’s, which did not surprise Holt. She had always assumed the hair had been planted, and had only agreed to their being tested because Zelenka would not agree to DNA testing on any items unless she did. On the other hand, on two slides, the hairs were from a “male individual” other than Elmore, the examiners reported. It was not possible, they said, to know whose they were. The examiners also reported that nothing found under Mrs. Edwards’s fingernails was connected to Elmore. Thus, as Holt would say, scoffing, “Mrs. Edwards had pulled pubic and head hairs from Elmore without getting anything under her carefully manicured fingernails.”

  All these findings were background noise. The critical finding was about the spots of blood on Elmore’s shoes and blue jeans. And that finding was devastating: the blood matched Mrs. Edwards’s.

  Calming herself, Diana called Elmore. She spoke more sternly to him than she ever had, slowly, so that he could understand. Then she said, “You did it. You just don’t remember, but you did it.”

  “No, I wasn’t there,” he said softly.

  Holt, of course, didn’t believe he had done it, and there was something strange about the manner in which Zelenka was handling the DNA results. He had waited to file until after Judge Norton had denied Elmore’s habeas petition. Why? The results weren’t going to help the state at that point. And why had Zelenka not put out a press release or said anything publicly about the results? He had trumpeted every other victory in the case. It was months before the police and lawyers in Greenwood, who had worked on the case, got word of the DNA results, and that was because a reporter began asking questions. Why had Zelenka been so silent? they wondered.

  Maybe Zelenka knew that the blood had been planted, Holt thought. She had no doubt that it had been. The blood spots on the jeans were pinprick size, not streaks or smears or dollops, which they would have been, given all the blood at the scene.

  Holt wondered whether Henderson had planted the stains. It would have been easy. Blood had been drawn from Mrs. Edwards during the autopsy. Henderson would have had access to the vials, either in Greenwood or at SLED headquarters in Columbia. And he had taken the jeans and shoes out of the lab even though he was not involved in the forensics of the case. He had inexplicably kept them for sixteen days. Holt and Jensen now realized the error they had made in not calling Henderson as a witness during the PCR.

  Henderson denies having planted the blood. He doesn’t remember ever having possession of the blue jeans. “Where did I have them? Why did I have them? That’s the question,” he said years after the trial. It was a warm spring evening in May 2006, and Henderson, with short hair, a ruddy face, and a bulbous nose, was now retired from SLED, living in
scenic Gowensville, South Carolina, at the foot of the Blue Ridge Mountains. He talked about the Elmore case for a couple of hours, in the kitchen of his farmhouse, which he had modernized. His red Honda pickup was parked in the driveway, in front of a three-car garage. He was wearing a bright green golf shirt, IZOD Bermuda shorts, and boat shoes. Henderson railed against Elmore’s lawyers. “They don’t care about him, they’re just using him for their anti–death penalty cause,” he said. “They picked him out because he’s a nice-looking kid and he’s black.”

  He agreed that it was hard to understand how there could have been so little blood on Elmore’s blue jeans and shoes. “A rational person looking back at that would say he ought to be covered in blood.” But he insisted he had not taken the blue jeans and shoes to plant any blood. “I’ve always had a set of ethics, and I’ve tried to live by them. I was not going to trump up anything on anybody. I never have and I never will.” He knows, however, that some police officers do that. “They have the mentality, He might not be guilty of this, but he’s guilty of a hell of a lot of other stuff.”

  After taking the blue jeans out of the lab, Henderson, rather than return them to the lab, had given them to the Greenwood police captain Jimmy Coursey, according to the notes made at the time by Solicitor Jones. Coursey, who was as convinced of Elmore’s guilt as Henderson, doesn’t recall Henderson giving him the blue jeans. “I have no idea why they would have been brought back from SLED and put up here,” he said, sitting on the screened-in porch of his house on Lake Greenwood. “As God is my witness, if I am ever asked if I had those jeans in my hand, I’d swear I didn’t.” He is adamant he never planted any blood on them. “There wasn’t shit planted on that boy,” he said. “I ain’t gonna do one thing that would put my ass in jail to put his ass in jail.”