Anatomy of Injustice Page 11
Jones had almost slipped. He had told the jury during his closing argument that there was no blood on the bed because Mrs. Edwards had swallowed it.
ELMORE: I didn’t pick up no body, sir.
JONES: You pulled it out of there about ten, or fifteen after twelve and took on down to your girlfriend’s, didn’t you?
ELMORE: No, sir.
Jones showed Elmore State Exhibit 58, the baggie with the hairs Agent Wells said were Elmore’s and Jones had argued Mrs. Edwards had pulled from Elmore when he had thrown her on the bed.
JONES: Now, tell us how it felt when she reached down and jerked them out of that area? It hurt you, didn’t it?
ELMORE: Sir, she didn’t jerk them from me because didn’t nobody—I wasn’t there.
JONES: And it made you mad, didn’t it?
ELMORE: No, sir, I wasn’t there.
JONES: And she tried to get up off of the bed and get out of there, didn’t she?
ELMORE: I wasn’t there, sir.
JONES: And you caught her and started pounding her with your fist, didn’t you?
ELMORE: No, sir.
JONES: Right into the wall, didn’t you?
ELMORE: No, sir.
JONES: Stomach and all.
ELMORE: No, sir.
JONES: Did you kick her?
ELMORE: No, sir, I wasn’t there.
JONES: That’s all I have to ask him.
Jones was finished. It was 6:00 p.m. On Sunday. Closing arguments commenced—the defense, then the state, and then the defense would get a rebuttal.
Beasley stood up. “I’ll be brief,” he said. First, he told the jury that he had “no criticism whatsoever” of their having found Elmore guilty. But he argued that the evidence was circumstantial—no one had seen Elmore murder Mrs. Edwards. With circumstantial evidence, he said, you can never be sure with absolute, moral certainty that you could be right in imposing the death penalty. Then he sat down. He had spoken for only five minutes.
Now Jones was ready once more to whip up the jury, to feign humility, to ask for sympathy—for himself, not Elmore. “I beg of you not to allow the tone of my voice, my general appearance, whatever kind of clothes I’ve got on, and the shoes I wear to interfere with your dispensation of justice. I’m confident that you won’t—you won’t do that. But allow me to beg of you not to do it. I do the best I can do and everybody is handicapped.”
It was Sunday, and Jones, wearing a dark suit, white shirt, and thin tie, was in his pulpit. He believed in an eye for an eye and in vengeance; he knew that most of the jurors did as well. He focused on those jurors who had religious scruples about the death penalty. “It’s not for us to get into the religious aspect of it,” he said. “We’re here to do our duty. And I don’t feel there’s any religion on the face of God’s earth that calls upon us not to be a citizen in the country that we live and stand by and carry out our duty, according to law.”
He turned spiritual. Mrs. Edwards is “not here today where we can see and touch her, but she’s somewhere around here. I have that faith. When I was little, I used to think heaven was up that way and hell was down this way. But I think both of them are all around us. I think it’s just a different state. And I’ve got faith that those who have gone on are looking at us and watching us every day.”
He shamed them, challenged them, taunted them. “Either you have the fortitude and the manhood to do it, or it is a blight upon our jury system.”
He sat down.
Anderson, in a suit slightly less conservative than Jones’s, stood up. It was Elmore’s last chance. The courtroom was packed.
“Mr. Foreman, members of the jury, certainly the solicitor has the ability, the oratory, to work you into a frenzy. I hope that he hasn’t done that. I hope that you can maintain calm deliberations as you enter the jury room to begin your deliberations.”
Anderson was hoping to get just one juror to hold out against the death penalty. That’s all it would take to spare Elmore’s life. He argued against the death penalty in principle. He gave the jurors a brief survey of the death penalty. In England, they used to hang people for stealing a horse, for witchcraft, for petty theft, he told them. The public was invited. “They put you on a high hill and the point was, they’d hang you up there and hang you by the neck until you were dead and the point was that the people who would walk up there, come on, let’s watch the hanging.” The theory was that a public hanging would be a deterrent. “You were supposed to be good. Just there he is hanging by his neck. The reaction is, I sure don’t want to do that.” It didn’t work. “You know what it does? It breeds it. That hard feeling breeds more cruelty, breeds it, engenders it, fosters it. There’s no deterrence here.”
He didn’t neglect religion. “I’m more of a New Testament man,” he said. He embraced forgiveness, not an eye for an eye.
“I’m going to sit down now, and let the judge charge you, but I want to tell you one more time if I haven’t reached all of you about this killing business, I hope I’ve reached some of you. If I’ve reached some of you, hang in there, and come back with a recommendation of life and let him spend the rest of his days behind bars. No sense in taking his life.”
It was nearly 7:30 on a Sunday evening. Most evenings during the trial, The Ranch, the best restaurant in town, had catered the jurors’ meals, but it and other restaurants were closed on Sunday, leaving the jurors to choose between McDonald’s or Hardee’s, Judge Burnett told them. Hamburgers were brought in.
At 7:50 p.m. the jury began deliberating Edward Elmore’s life, whether he would spend the rest of his days in prison or whether he was to be strapped into the electric chair. Anderson had reached a couple of the jurors. After two hours, the foreman notified Judge Burnett that at least one juror was holding out for a life sentence. In fact, two were: Elizabeth Hackett and Georgia Moten, the two African Americans on the jury.
Judge Burnett brought the jurors back into the courtroom. He reminded them that during jury selection, when a potential juror said he was opposed to capital punishment, he had been asked if he could put aside those views and impose the death penalty if that is what the evidence required. All had said yes, Burnett reminded them. He urged them to go back into the deliberations and reach a verdict “according to the oath that you took, each of you, and the duty of a juror as I explained to each of you to render a verdict that is supported by the law and the evidence in this case.”
It was nearly 10:30. The jurors continued to discuss the evidence. Hackett and Moten were against executing Elmore. But the two black women, thirty-one and twenty-four years old, respectively, were no match for the ten whites. “This could have been anybody’s mother,” juror Susan Burnett said at one point. “We have to think about the innocent.” She was thirty-three years old, taught Sunday school at the Methodist church, and believed in capital punishment. She was uncomfortable with sentencing a man to die, as were other jurors. “But we didn’t feel we had a choice as far as the law was concerned.”
Another juror, James Walker, who had considered the case against Elmore open-and-shut, wasn’t at all uncomfortable with sentencing him to die for what he considered a most heinous crime. Walker planned to attend the execution.
An hour later, there was still no verdict. It was nearly midnight. Burnett had no choice but to let the jury go for the night. They were taken to the Holiday Inn.
AT 10:00 A.M. Monday, April 19, 1982 (the day Sally Ride was announced as the first woman astronaut and Guion Bluford the first black), the jurors tried again.
This time, their deliberations were short. At 10:50, they reached a verdict, advised the court, and were led back into the courtroom. Elmore rose, hands in his pockets. The courtroom was about half full. The foreman passed the verdict to the clerk. She read:
State versus Edward Lee Elmore: We, the jury, in the above entitled case, having found beyond a reasonable doubt the existence of the following statutory aggravating circumstances, to wit: one, criminal sexual conduct first deg
ree; two, physical torture, now recommend to the court that the defendant, Edward Lee Elmore, be sentenced to death.
Burnett asked Elmore if there was anything he wanted to say.
“I’d like to say I did not commit that crime Your Honor said I did,” Elmore said, calmly. Again, it seemed to Reverend Spearman that Elmore simply did not comprehend what was happening.
Burnett asked if there was anything else.
“Yes, sir. I’d like to say I’ll be—no, sir, that’s all.”
Once again, Burnett could barely hear Elmore and asked him to repeat himself. No, “that’s all,” Elmore responded.
“I’m satisfied from this evidence that you, without question, committed this most horrible and inhuman crime,” Judge Burnett told Elmore. “This jury, in my judgment, has been swayed by no passion, no prejudice, nor any other arbitrary factor.”
Again, he asked Elmore if he wanted to say anything before he imposed sentence.
Elmore said he did not.
Judge Burnett spoke: “It is, therefore, the judgment of the land and the sentence of this court that this defendant Edward Lee Elmore, be taken to the county jail of Greenwood and thence to the state penitentiary, henceforth to be kept in close confinement until the twenty-first day of June, 1982, upon which day between the hours of 6:00 a.m. and 6:00 p.m., the defendant Edward Lee Elmore, shall suffer death by electrocution in the manner prescribed by law. Take the defendant.”
Elmore’s mother and three of his sisters broke into sobs as friends led them from the courtroom.
Beasley turned to Anderson as they were walking out of the courthouse. “That damn son of a bitch will live longer than I will,” Beasley said, expressing his contempt for the long appeal process he knew was ahead. That indeed would be the case.
CHAPTER THREE
Replay
TWENTY MEN WERE ON South Carolina’s death row when Edward Lee Elmore arrived in April 1982: thirteen whites, seven blacks. Given this ratio, South Carolina could argue it was not guilty of racism in the application of the death penalty. But all the victims in the cases that put those men on death row were white, save three. This same pattern held in other death penalty states. In Illinois, when the victim was white, it was three times more likely that the defendant would receive the death sentence than if the victim was black. Altogether, across the country, in cases where a person was executed, more than three-quarters of the victims were white.
Elmore’s lawyers appealed to the South Carolina Supreme Court, which appointed a thirty-four-year-old prematurely gray lawyer of quiet brilliance, David Bruck, to represent him. It was Elmore’s first break. “Almost Gandhiesque” was how a South Carolina prosecutor described Bruck to David Stout, author of Carolina Skeletons, a fictional account of South Carolina’s execution of George Stinney, the fourteen-year-old put to death after a trial that took only seven hours.
A serene man, Bruck generally maintained a low profile, but he acquired national prominence in 1995 when he represented Susan Smith, the woman who strapped her two small boys into their car seats and then drove her car into a lake. (Dr. Conradi performed the autopsy.) The jury needed only two and a half hours to find Smith guilty of two counts of murder. During his closing argument in the sentencing phase, Bruck opened a Bible and read from John 8:7: “He that is without sin among you, let him cast the first stone.” She was given life.
When Bruck looked at the death penalty, he saw what the Supreme Court had seen in Furman: most of the men on death row were black and poor. The administration of the death penalty was too capricious, too loosely governed, too inconsistently applied. It was, he said, like a fisherman reaching into his bait box and pulling out a worm for his hook.
Bruck’s career was a by-product of the Vietnam War. At Harvard, where he had graduated magna cum laude, he had demonstrated against the war and decided to become a lawyer in order to represent conscientious objectors to the draft and soldiers who refused to go to Vietnam on similar grounds. Accordingly, he chose the University of South Carolina, in Columbia, for law school because it was near Fort Jackson, one of the country’s largest army training bases, where he could combine study with practical work. Then the Vietnam War ended, and he felt himself “beached like a flopping fish by the receding waters of the Vietnam antiwar movement.” Searching, he headed west. In New Mexico, he worked with the Navajo to stop uranium mining at a sacred tribal site. A Canadian by birth, he then set off for Vancouver, where he planned to represent labor unions. While back in Columbia to gather up his books and few possessions, he learned that hundreds of protesters were being prosecuted for a sit-in at the Savannah River bomb-manufacturing site. He agreed to represent some pro bono and took a job in a welding shop while waiting for the trials to begin. One day, during his lunch break, he read a newspaper story about the resentencing trial of two black men who had been convicted of killing a white gas station owner. On appeal, the South Carolina Supreme Court had reversed the death sentence on several grounds. For Bruck, the case underscored the importance of good appellate work in capital cases where the defendant’s lawyer at trial had been ineffective, bordering on incompetent. He went to the state appellate defense office and offered to handle all the death penalty appeals in exchange for an office and a modest salary. He was extremely effective. Of the fifty or so death row inmates whose cases he would handle, he lost only three.
Elmore’s case was one of his first. He drove to Greenwood and met with Anderson and Beasley. Bruck asked them about the pubic hairs that the SLED agent claimed to have found on the bed and that were said to have a reddish cast. “If that don’t take the cake, a redheaded nigger,” Beasley replied, chuckling. Bruck didn’t find it funny. Beasley would later say he didn’t recall making that remark; he didn’t even remember ever meeting Bruck.
In the South Carolina Supreme Court, Bruck argued that Judge Burnett had erred in allowing Joseph Chalmers to sit on the jury, because his daughter was a close friend of Solicitor Jones’s daughter, and in excluding Augustus Covington because of his opposition to the death penalty. The court disagreed. The trial judge has wide latitude in deciding who may sit on the jury, it said, and his discretion would not be overturned without a showing that it was totally unsupported by the evidence.
The court was disturbed, however, by how Judge Burnett handled the situation when at least one juror was holding out against the death penalty. His reminder to the jurors that during voir dire, each of them had said under oath that whatever their personal views might be, they could impose the death penalty if the facts warranted it was improper, the court said, because it was directed solely at those jurors who were voting against the death penalty while implicitly approving the decision of those jurors who were voting for it. Judge Burnett had “effectively urged agreement at all cost, rather than reminding the jurors of their right to retain conscientiously held views,” the court said.
Elmore had a new trial.
IN MARCH 1984, the State of South Carolina tried Elmore again. It did so in the same courthouse, with the same prosecutor, William T. Jones, again assisted by his daughter Selma. There was a new judge, however—James E. Moore, a gregarious Greenwood native who had been student body president at Greenwood High in his senior year, an accomplishment he considered so significant that forty years later, when he was a justice on the South Carolina Supreme Court, he was still citing it on his résumé.
When Elmore’s conviction was overturned and it was announced that he’d get a new trial, a juror from the first trial, Elizabeth Hackett, thought now “they’d give him a good lawyer.” But Judge Moore assigned Elmore the same lawyers, Anderson and Beasley.
In a rare display of assertiveness, Elmore told Judge Moore he wanted “Mr. Brooks” to represent him. “I think it would be in my best interest to have some new attorneys,” he told the court.
Judge Moore didn’t agree. Anderson and Beasley were experienced attorneys who had handled many trials, he told Elmore. “The court is of the opinion that you are
represented by two competent attorneys.”
Elmore asked if he could at least have some time to get in contact with Mr. Bruck.
Moore was in no mood to delay. “The case, Mr. Elmore, is scheduled for trial to begin on Monday,” he said. “Mr. Anderson and Mr. Beasley are your attorneys.”
This trial was like watching a video replay of the first one. Jury selection took just over two days, as it had the first time. The entire trial lasted eight days, as had the first one. The state’s witnesses were the same—police, SLED agents, Conradi, the neighbor Holloway, and the jailhouse informant, Gilliam. Again, Anderson and Beasley put forward no case, and told Elmore to testify.
Again, when it was Jones’s time for cross-examination, he tore into Elmore. The pummeling had just begun when Elmore turned toward Judge Moore and asked if he could speak to him. He spoke so softly that the court reporter couldn’t hear.
“For the record, gentlemen,” Judge Moore said, speaking to the lawyers, “the defendant requested that he be allowed to speak to me about his nerves being bad; and I’ve told him that if he desires to make any such statement, it should be part of the record and not off the record.”
He turned to Elmore. “You were attempting to tell the court that your nerves are bad. Do you wish to tell me anything further about that?”
“No, sir. I’m not going to say anything.”
Jones was fed up. “He’s guilty,” the solicitor shouted.
Elmore timidly asked if he could talk to his attorneys. No, said Judge Moore. When a witness is being cross-examined, he cannot talk to his lawyers about his testimony.
“I ain’t going to talk about testimony,” Elmore said.
Moore was puzzled. “About your being nervous? Is that what you want to talk about?”
“Right. Well, yes.” He was embarrassed, humiliated, and awkwardly tried to explain. “You know, I been talking about—you know my nerves and all. You know, went to the bathroom.”