Anatomy of Injustice

by Raymond Bonner

  AS ELMORE FACED his twenty-fifth Christmas on death row, on December 19, 2007, he underwent a psychological evaluation by Dr. Donna Culley, a clinical psychologist with the Department of Disabilities and Special Needs. She interviewed Elmore for two hours at the prison. Elmore was dressed in a prison jumpsuit, wore a knitted sock hat, and had shackles on his ankles and wrists. Holt asked that the shackles be removed; Culley agreed. Elmore cried when he talked about his family. “I miss my momma,” he said. She had died in 1998. Asked to name five cities, he said, “Georgia, Virginia, Tennessee.” She asked him again, stressing cities. “Ain’t that what that is?” he said. “Ain’t that what that is?” Asked to name the directions on a map, he did not understand the concept. He said he had attended more than one school as a child, but he could remember the name of only one, “Abbeville Middle School.” His records showed that he never attended a school by that name, Dr. Culley wrote in her report.

  Dr. Culley concluded: “Based on the totality of the data, it is the opinion of this examiner that Mr. Elmore meets the diagnostic criteria for mental retardation as defined in the South Carolina Code of Laws. It is estimated that his level of functioning falls within the mild range of mental retardation.”

  Elmore was not off death row yet, however. There still had to be a hearing before Judge Hayes, in which the state could challenge Culley’s findings.

  Hayes decided to hold the hearing at the Broad River Correctional Institution, instead of in a courtroom, to make it easier for the prison personnel, who wouldn’t have to travel back and forth to Spartanburg. Only one reporter was at the hearing, from The Spartanburg Herald-Journal, Hayes’s hometown newspaper. Not a good omen, Holt thought. Elmore was brought in wearing a green prison jumpsuit and leg and wrist shackles. Holt requested that the shackles be removed, as usual, which every judge before had granted. In the ultrasecure prison courtroom, Hayes deferred to the prison officials. They insisted on keeping Elmore in full chains. Holt was furious.

  Zelenka was faced with having to discredit the findings of the state’s own psychologist. He called a North Carolina psychologist, Roger B. Moore Jr., who suggested that Elmore might have purposefully performed poorly on the tests given to him by Dr. Culley. “No way that performing well was in Elmore’s best interest,” Moore testified. The sharpest moments of the hearing came when Dr. Culley took the stand. Her findings were tainted, Zelenka argued, because Diana Holt had been present during the evaluation. Judge Hayes expressed great concern about that. Holt left the hearing convinced she had lost.

  ON A PERSONAL LEVEL, Holt was preparing for a trial that would not be pleasant, her libel action against Jim Holloway. Holloway’s lawyers had already taken a video deposition of Holt, in which many of the sordid details of her childhood had been dragged out again. Finally, Holloway and the newspaper agreed to pay Diana $25,000. In her impish way, before accepting the offer, she asked that Holloway agree to the exhumation of his father for DNA testing purposes. Of course, he said no. The case was settled. The video deposition was sealed.

  Holt waited for Judge Hayes’s ruling on Elmore’s mental retardation claim for months. She couldn’t imagine what was taking so long, and the longer it took, the more she was convinced she had lost, that Hayes was crafting his order and opinion with legal care so that it would not be reversed on appeal. Holt would have to appeal to the South Carolina Supreme Court, and she knew what her chances were there. She was still in federal court, with her habeas claim, but that would eventually have to go to the United States Supreme Court, and her chances there were nil, at least as long as there was a conservative majority. She wouldn’t say it, but she felt Elmore was doomed to die for a crime he didn’t commit. It was really only a question of how long she could keep him alive.

  On September 30, 2009, Holt was sitting at her computer when an e-mail arrived. It was from Judge Hayes. She had to read it twice before it was clear what he was saying.

  Hayes had concluded that Edward Lee Elmore was mentally retarded, as defined by South Carolina law. Therefore, he could not be executed under Atkins.

  Holt was delirious with joy.

  She called the prison and asked for the warden, McKither Bodison. “Mr. Edward Lee Elmore is leaving death row,” she said cheerfully when he came on the line. He almost started crying. “Ms. Holt, I know you’d never forgive me if something ever happened to him,” Bodison said. Lately, other prisoners had been harassing Elmore, jealous of his relative freedom. They said he was acting like a slave, behaving well to please the prison authorities. Bodison said he would move Elmore to a special section of the prison for his protection.

  Then she called Elmore.

  “Hello, is this Eddie? Is this pokie wokie? Is this my Eddie, my little Brown Bear?” she said, using his prison nickname. “Well, I have something to tell you.” She paused. “Tomorrow is October first. That’s all.”

  She laughed, paused, then said: “Mr. Edward Lee Elmore, I am so pleased to inform you that the judge is going to enter an order vacating your death sentence for all time.”

  “Wow,” he said softly.

  “Wow!” she screamed.

  She read from the e-mail from Judge Hayes that he had found him mentally retarded and therefore not subject to the death penalty. She explained the Atkins ruling and its connection to his case.

  “Wow,” he said.

  “They cannot seek the death penalty against you, for any reason. All right, you knucklehead. Take care, sweetie.”

  When she hung up, she screamed. “It hasn’t sunk in yet, I can fucking assure you.”

  Elmore would live. To almost anyone else, it might seem anticlimactic—after twenty-seven years, Elmore was off death row, but he hadn’t been exonerated, and he was facing the rest of his life in jail. Nevertheless, for Diana Holt, her defense team partners, for all death penalty lawyers, keeping a man alive is about as good as it gets.

  “I can exhale now,” she said.

  THOUGH EDWARD LEE ELMORE is off death row, for Holt justice requires that he be released from prison and that his conviction be expunged. The state should apologize and compensate him, she feels. She would also like an investigation into what happened. Under oath, Wells, Parnell, DeFreese, Johnson, and Henderson should be made to explain about the hairs on the bed, about Item T, about the fingerprint on the underside of the toilet seat. Justice would require that James Holloway Sr. be exhumed, she believes. All that might happen if the United States Justice Department decided to conduct an investigation, for surely Elmore’s civil rights have been violated.

  Diana Holt isn’t a vindictive person. She would just like to see justice.

  EPILOGUE

  Edward Lee Elmore might be off death row, but Diana Holt wasn’t about to let him remain in prison for a crime he didn’t commit. She and Chris Jensen appealed to the U.S. Fourth Circuit Court of Appeals, in Richmond, Virginia, seeking a new trial, as they had all along. The three-judge panel heard oral arguments in September 2010.

  Two days before Thanksgiving in 2011, a bitterly divided court ruled that Elmore was entitled to a new trial. In a staggeringly long 163-page opinion, the majority was searing in its criticism of the SLED agents and police, writing that there was “persuasive evidence that the agents were outright dishonest,” and that there was “further evidence of police ineptitude and deceit.” Judge Robert Bruce King, writing for himself and Judge Roger Gregory, suggested that “the real perpetrator was Holloway.”

  In his dissent, Judge J. Harvie Wilkinson III was equally stinging, but his rebuke was directed at his colleagues on the bench. He accused them of conjuring up a “fanciful conspiracy.” “In spinning this tale of deceit, fabrication, perjury, and corruption,” he wrote, “the majority has unduly impugned the South Carolina criminal justice system—directly in the case of its law enforcement officers and indirectly in the case of the prosecutors and judges who turned a blind eye to malfeasance of this magnitude.”

  Wilkinson was the most senior judge on the court,
as well as one of its most conservative members, and his dissent gave added impetus to the state’s determination to appeal rather than grant Elmore a new trial. Holt’s marathon battle to get justice for Elmore would continue. There would be another round in the Fourth Circuit, and then whichever side loses will most likely appeal to the United States Supreme Court; a decision there is probably two or more years away. Meanwhile, Elmore remains in prison.

  A NOTE ON SOURCES

  AND ACKNOWLEDGMENTS

  This book is based primarily on the record in the Elmore case—transcripts from three trials; legal briefs, depositions, oral arguments, and transcript from the post-conviction relief hearing; and other hearings in state and federal court. I also interviewed all the principals in the case—police officers, prosecutors, Elmore’s lawyers, jurors, witnesses, Elmore’s family—most of them several times. I am deeply grateful for the courtesies they extended, even those who did not like the direction of my questions. Jimmy Holloway Jr. never declined to talk to me, even though he said at one time, “You think my father did it, don’t you?” Tom Henderson didn’t throw me out of his house but offered me a home-brewed peach schnapps after I asked if he had planted blood on Elmore’s blue jeans. Only two persons declined to be interviewed—Greenwood police sergeant Alvin Johnson and Donald Zelenka. When I knocked on Johnson’s door in Greenwood, his son answered. He is a former marine, as am I, and we chatted about the corps. His father wasn’t home. When I later called his father, he thanked me for being kind to his son, but he told me that he would not talk to me about the case, and that I should never knock on his door or call him again. “Enjoy your stay in Greenwood,” he said. It was chilling. Mr. Zelenka said he could not give me an interview because it was a violation of ethical standards while Elmore’s appeals were pending. I reminded him that he had talked to me on one or two occasions when I was writing articles about the case for The New York Times, and that one time he had initiated the contact. He wasn’t swayed, but he did answer some questions about his background in an e-mail.

  If this book had footnotes, it would be replete with references to articles about Supreme Court decisions written by Linda Greenhouse for the Times. Linda has a lawyer’s mind and a journalist’s pen, giving her an ability to explain legal nuances in concise language that the non-lawyer can understand. She was also a dear colleague during my years at the newspaper. I am also deeply indebted to her biography Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey.

  I would like to recommend two other books. Capital Punishment on Trial: Furman v. Georgia and the Death Penalty in Modern America by David Oshinksy is a fluidly written account of how the case reached the court and why the justices decided as they did. Though Furman is a landmark decision, in the pantheon with Roe v. Wade and Brown v. Board of Education, and is the subject of uncountable law review articles, the popular literature on the case is almost nonexistent, making Oshinsky’s book even more useful and important.

  The other book is The Origins of Adversary Criminal Trial by John H. Langbein. The book is part of a series covering legal history since 1750. Though academic in presentation, it is an utterly fascinating account of the evolution of criminal trials, from a time when there were, astonishingly, no lawyers—no prosecutors, no defense counsel. It was “altercation trial that pitted citizen accuser against citizen accused,” Langbein writes.

  The Death Penalty Information Center is the best single source of facts, figures, and other information about capital punishment in America.

  In the beginning, as it were, there was Jill Abramson; as deputy Washington bureau chief for the Times, she gave me a chance, and assigned me to write about the death penalty. This book was ten years in the making, and I had the benefit of many readers of the many drafts and iterations through which it progressed: Geraldine Brooks, Julie Empson, Doug Frantz, Alma Guillermoprieto, Denise Leith, and Laura Wilson. Thea Garland applied her exceptional literary talent and gave me moral support. Steve Engelberg, a friend, colleague, and editor, came through with a critical critique at a critical moment. A special thanks to Alan Riding, who has been editing me since I wrote my first article for the Times (from Guatemala). George Kendall, who is one of the most accomplished and honored death penalty lawyers, offered me invaluable assistance in understanding Supreme Court decisions and the law, and saved me from numerous errors. David Bruck and Joe Margulies, both law professors, also tutored me. Any errors or legal misinterpretations that remain are my responsibility. Rauch Wise and James Bradford guided me in the ways and history of Greenwood, even as they wondered if I was ever going to produce a finished book. I thank Amber Landsman, Margaret O’Shea, Muktita Suhartono, and Margot Williams for their research assistance, and Laura Raphael for computer assistance in times of dire need.

  I want to pay particular tribute to Ruth Fecych, who was an editor on two of my previous books. At one point, I sent the manuscript to Ruth as a friend, asking her if she thought it was worth my continuing or if I should drop it. She read the manuscript carefully, made suggestions, and encouraged me to keep going.

  Thanks to tireless research, Mary Panzer manager to locate elusive photos. At Knopf, Joey McGarvey was unfailingly pleasant in assisting me in so many ways, large and small. Louise Collazo copyedited the manuscript, fixing my grammar, saving me from embarrassing inconsistencies, and correcting errors of fact. She has real pride in her work.

  It is hard to know where to begin, or end, to express my admiration and respect for Jonathan Segal, my editor on this, our fourth book together. He is, succinctly put, a brilliant editor. I still have the notes from our earliest conversation about the book, scribbled by me on a yellow legal pad over lunch at an Indian restaurant in Manhattan, and I referred to them often while writing. Jonathan pushed and prodded me to make the book not just about one death row inmate and one lawyer, but to explore the broader legal questions as well. I owe him a great deal.

  Continuing twenty-five years of loyalty, Gloria Loomis was my agent. I value her advice and wisdom, but above all, I cherish her friendship. My heartfelt thanks to Jane, who has endured again, with love. Finally, this book is dedicated to my mother because somehow she instilled in me the sense of right and wrong that kept me going for a decade in the dissection of an anatomy of injustice.

  A NOTE ABOUT THE AUTHOR

  Raymond Bonner graduated from MacMurray College and Stanford Law School and practiced law for a decade, including as a judge advocate in the United States Marine Corps and as an assistant district attorney in San Francisco. He taught at the University of California, Davis, School of Law and founded the Public Interest Clearinghouse at Hastings College of Law in San Francisco. Later, he became an investigative reporter and foreign correspondent for The New York Times and received numerous awards and honors, including the Louis M. Lyons Award for Conscience and Integrity in Journalism, from the Nieman Foundation Fellows, in 1996. He was a member of the Times team that won a Pulitzer Prize in 1999 for articles about the sale of American technology to China. He has also been a staff writer at The New Yorker and has written for The New York Review of Books. His first book, Weakness and Deceit: U.S. Policy and El Salvador, received the Robert F. Kennedy Book Award; his second, Waltzing with a Dictator: The Marcoses and the Making of American Policy, received the Cornelius Ryan Award from the Overseas Press Club and the Hillman Prize for Book Journalism. He now lives in London.