Anatomy of Injustice Read online

  BLUME WAS IMPRESSED with Holt. When her summer internship was over, he suggested that she move to South Carolina and finish law school there. She kept telling him there was something about her past that he needed to know. He dismissed her, figuring it was about drug use, and that didn’t bother him. She was flattered by Blume’s offer, but she wasn’t about to trade a law degree from the University of Texas, one of the top twenty law schools in the country—where her trial advocacy seminar was taught by the legendary Michael Tigar, a brilliant legal mind and liberal activist, and Dick DeGuerin, a preeminent criminal defense lawyer—for one from the University of South Carolina, which barely ranked in the nation’s top hundred. After she returned to Texas, Blume paid for her to fly back to Columbia every other weekend to work on the Elmore case. Finally, in December 1993, she pulled up stakes in her native Texas and moved to South Carolina, after the University of Texas said she could finish at the law school there if a professor agreed to hold her to UT standards. She was now divorced from Gordon Holt, after six years and one son. He had scoffed at her desire to work as a death penalty lawyer, said she wasn’t going to be able to make a difference. She had been hearing that all her life, and accepting it, but she was slowly acquiring a sense of self-worth. She had also come to believe that the law was a powerful instrument for doing good.

  Holt was hooked on the Elmore case. “You couldn’t pry my hands off it,” she said. She was convinced he was innocent, a conviction that would grow stronger as she investigated further and discovered more. She became equally convinced that Holloway was the perpetrator. But however guilty Holt might think Holloway was, she had no venue to try him. She wasn’t a prosecutor. She couldn’t convene a grand jury. The best she could hope for was a new trial for Elmore.

  CHAPTER SIX

  Innocence Is Not Enough

  HOLT WAS WORKING fourteen, fifteen, up to eighteen hours a day on the case, every day. It was February 1995, some twenty months after she had first heard of Edward Lee Elmore. Since then, she had graduated from law school and been admitted to practice in South Carolina, and was in an unlikely relationship with a civil litigator, Kevin Bell (who would become husband number four).

  On February 28, Holt, with Elmore seated next to her, was in the Greenwood courthouse where he had first been convicted and sentenced to death thirteen years earlier. It was the first day of Elmore’s post-conviction relief hearing, or PCR, the venue for a convicted defendant to argue that there are material facts the trial court failed to consider that justify a new trial. It is much like a civil trial before a judge. The convicted defendant may present new evidence and witnesses, who are examined and cross-examined. Holt’s cocounsel, and at this point the lead lawyer, was a high-priced corporate litigator from New York, J. Christopher Jensen. He was forty-seven years old, sported a bushy mustache, wore eyeglasses, and was representing Elmore pro bono. Their goal was to get Elmore a new trial. Although the record showed that Elmore had had three trials, “we don’t think he’s had his first trial yet,” Jensen told J. Ernest Kinard Jr., who was presiding over the hearing and would decide if Elmore deserved a new trial. “In thinking about this last night, it occurred to me that this was like a loosely knit sweater—the whole case, a very loosely knit sweater—and if you tug on any strand, the whole sweater comes unraveled,” Jensen went on in his opening statement to Judge Kinard, a fifty-five-year-old jurist who had grown up in nearby Newberry. Unravel it is just what Holt and Jensen were about to do, and when they finished, the sweater would bear little resemblance to the one that Jones, father and son, had woven for the juries.

  J. Christopher Jensen was a partner with a prestigious New York City law firm, Cowan, Liebowitz & Latman, specializing in intellectual and property disputes. His office in a high-rise on Avenue of the Americas, between Forty-Third and Forty-Fourth Streets, had a view of Bryant Park and the New York Public Library. Like many corporate lawyers, Jensen felt a need to do something more meaningful than help rich people get richer. He signed up with a program the American Bar Association had launched in 1986 to recruit lawyers to handle the appeals of death row inmates. For a condemned man to get one of these lawyers was like winning the lottery. Jensen had been linked up with the South Carolina Death Penalty Resource Center. John Blume asked him if he’d take the Elmore case, even before Holt had appeared as a summer intern. Jensen wasn’t quite sure why he had said yes. He was partly motivated by the legal challenges of the case and, he admitted, by the ego gratification that comes if you are successful.

  Jensen had grown up a conservative in Idaho, the son of a Walgreens pharmacist, but had moved east and drifted left. At Columbia University during the tumultuous late 1960s, he had demonstrated against the Vietnam War and had avoided the draft as a conscientious objector. But he was not opposed to the death penalty out of any religious or moral beliefs. His misgivings arose out of his years of experience in the courtroom. The adversarial nature of a trial is based on the notion that justice will be done when opposing sides vigorously present their case through competent, motivated lawyers. As cherished and valued as it is, the adversarial system is run by humans, and humans make mistakes. It is one thing for judges and jurors to err in a civil case, for weak and incompetent lawyers to represent the plaintiff or defendant, but quite another matter when a man’s life is at stake. It was the way the judicial system had worked in Elmore’s case, or more accurately had failed to work, that troubled Jensen.

  “I look at his trials—actually three trials—and I can’t believe it!” he said. Excluding jury selection, each of Elmore’s trials lasted three days. “Three days!” In most cities, a drunk driving case takes longer; even a trial for petty shoplifting might. To Jensen, the representation Geddes Anderson and John Beasley provided Elmore didn’t even rise to the level of abysmal. “What’s the point in having a lawyer at all?” asked Jensen rhetorically. He was about to display what a really good trial lawyer could do.

  The O. J. Simpson trial was in its second month at the time of Elmore’s PCR hearing. One day, a teacher at Greenwood High School brought his class to the courthouse. During a break, he introduced himself to Jensen, explaining that his students were fascinated by the Simpson case and he wanted to show them a trial in action. “You want to draw a perfect parallel,” says Jensen. “Look at these two trials. Two guys charged with murder. No eyewitnesses. Lots of forensic evidence—blood, fingerprints, hair. Elmore gets a three-day trial, no meaningful defense. Simpson’s trial goes on for months. Look what money gets you.” Holt bristled when comparisons were made to the O.J. case. There was no doubt in her mind that Elmore was completely innocent; she was not so sure about O.J.

  Jensen never asked himself whether Elmore was guilty or innocent. It was not a question he had to address. For Jensen, like many criminal defense lawyers, in defending a criminal suspect he is defending the integrity of the judicial system and the Constitution, as well as the individual. By demanding that a guilty person have a fair trial, defense lawyers are ensuring that an innocent person will as well. Eventually, after looking at the evidence, listening to the witnesses, and consulting experts, Jensen came to believe as Holt did that Elmore was innocent. He wasn’t surprised that Elmore might have said to a couple of cops, “Okay, if you say I did it, but I don’t remember.” Like everyone who met Elmore, Jensen was struck by his childlike nature; he was always trying to please and never argued.

  Jensen was wary of being seen as the northern liberal coming down to teach southern rednecks about justice. He knew he had entered a foreign world, however, when he met William T. Jones, who asked, “What’s your church?” Jensen was taken aback. In New York, you don’t ask someone you have just met about his religion, and Jensen didn’t think it was any of Jones’s business that he was an atheist, a descendant of Mormon pioneers who had married a Jewish girl from New York. As he spent more time in South Carolina, though, Jensen came to realize the significance of the religious question. In the South, the death penalty is acceptable to many be
cause it is cloaked in religious righteousness.

  Jensen wasn’t flamboyant, not in the manner of F. Lee Bailey, Gerry Spence, Alan Dershowitz, or Johnnie Cochran. But he’d had the best courtroom training a young lawyer can get—six years in the U.S. attorney’s office for the Eastern District of New York (in Brooklyn), rising to chief of the civil division. He and Diana now made a formidable team, he in court, she out of court. Together, they did all the things any good defense counsel would have done at Elmore’s trial, so many things that Anderson and Beasley had not. They interviewed witnesses, found their own experts, dug up evidence the state had sought to hide, and exposed inconsistencies, discrepancies, and lies. As they kept at it, they were at times astonished. The state’s case against Elmore was more flawed, weaker, and more marred by questionable prosecutorial conduct than they had realized.

  But the barricades Holt and Jensen had to get over, around, or through to get Elmore a new trial were more redoubtable than those Anderson and Beasley had faced in seeking to have him acquitted in the first instance. Once a person has been convicted, no matter how shaky the conviction, there is set in motion an almost inexorable process that ends in his execution. Once a person has been convicted, gone is the presumption of innocence. On appeal, the presumption is that the defendant had a fair trial, that the jury acted reasonably. It is not enough for his appellate lawyers to sow reasonable doubt, even if there was a lot. It was not enough for Holt and Jensen to produce evidence, if they had it, that Holloway was the probable perpetrator. It was not enough to show that Anderson and Beasley were lazy, or that Anderson was drunk, or that Beasley was a racist. It was not even enough to present a persuasive case that Elmore was innocent. Innocence alone does not entitle a defendant to a new trial.

  The Supreme Court had articulated this two years earlier in Herrera v. Collins. “Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person,” Chief Justice William Rehnquist wrote for the majority. “To conclude otherwise would all but paralyze our system for enforcement of the criminal law.” Which is to say, the need for finality in legal proceedings sometimes trumps what might be seen as fundamental fairness. Leonel Torres Herrera, a drug dealer, was on death row in connection with the murder of two Texas police officers. Ten years after Herrera had been convicted, his brother Raul told his lawyer that he had killed the officers, who, he said, were involved with them in a drug-running operation. Raul’s oldest son also swore that he had seen his father kill the officers. Based on these confessions, Herrera sought a new trial.

  The court ruled that Herrera was not entitled to one. Federal courts “sit to insure that individuals are not imprisoned in violation of the Constitution—not to correct errors of fact,” Rehnquist explained. After a defendant has had a fair trial, “the presumption of innocence disappears,” he noted. In order to get a new trial, a convicted person has to establish that one of his constitutional rights was violated.

  Justice Blackmun dissented. “I believe it contrary to any standard of decency to execute someone who is actually innocent,” he said. He underscored his feelings by reading his opinion aloud from the bench. “The execution of a person who can show that he is innocent comes perilously close to simple murder.” Justices John Paul Stevens and David Souter joined Blackmun.

  Justice Antonin Scalia scoffed. The justices were letting their personal opinions override sound legal reasoning, he said. If the majority decision offended their consciences, he went on, “perhaps they should doubt the calibration of their consciences or, better still, the usefulness of ‘conscience shocking’ as a legal test.” Justice Clarence Thomas agreed.

  Four months after the court had spoken, Herrera was strapped to the gurney. His last words: “I am innocent, innocent, innocent. Make no mistake about this. I owe society nothing. I am an innocent man and something very wrong is taking place tonight.” The needles were inserted.

  The Herrera case was not a good one to test whether a claim of innocence warrants a new trial. The evidence “overwhelmingly demonstrates” that Herrera killed the two policemen, Justice Sandra Day O’Connor noted in a concurring opinion; the affidavits submitted a decade later are “bereft of credibility.”

  Lawyers and activists seeking to use the courts for fundamental social change, whether conservative or liberal, look for cases that present compelling facts; the legal issues are wrapped around those. For opponents of capital punishment seeking to have the courts allow a new trial on the basis of new evidence, it would have been better to have a case in which the claim of innocence was strong, a case like Elmore’s for example. But Herrera’s lawyers had an ethical obligation to their client to pursue every appeal. Herrera was also one of those cases that bolster the argument of law-and-order conservatives, and the belief of many Americans, that death row lawyers file frivolous claims. But when you’re fighting to keep a man alive, who is to say that a claim is frivolous?

  The day Herrera v. Collins was decided, the flags in the capital were at half-mast. Justice Thurgood Marshall had passed away the day before at the age of eighty-four. People waited for hours in a long weaving line to pass his coffin, which lay in state at the Supreme Court. The National Cathedral was filled and millions watched on television. It was the passing of a legend, a man who had grown up in the segregated South, been turned away at hotels, and argued Brown v. Board of Education, and the only member of the court to have defended a murder case. The court had lost an unwavering voice against the death penalty, but the previously uncertain voice of Justice Blackmun had acquired a new tone.

  In Furman, Justice Blackmun had dissented from the views of Marshall and Brennan that capital punishment was unconstitutional, and he was consequently in the majority that upheld the constitutionality of the death penalty in Gregg. Two decades later, studying the appeals from death row inmates that had come before the court, he concluded that “the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.” His observation came in the case of an African American, Bruce Callins, who had been convicted and sentenced to death for the murder of a white man during the robbery of a topless bar. With his execution imminent, his lawyers filed for a writ of certiorari, the formal name for what is essentially a request for review. Under the Supreme Court’s rules, four justices must agree before a case is accepted for full argument, a rule necessary to winnow the hundreds of appeals the court receives to a manageable number. The justices rarely issue opinions when deciding whether or not to accept a case, but simply note in one paragraph whether the writ was granted or denied. But Blackmun had something to say about capital punishment and his own evolution. In a highly personal seven-thousand-word, twenty-two-page opinion, Justice Blackmun made reference to all the wrongs that he had seen over the years, from bad lawyers to prosecutorial-inclined judges to overly zealous prosecutors.

  “For more than 20 years, I have endeavored—indeed, I have struggled—along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor,” Blackmun wrote. “Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.”

  He concluded: “From this day forward, I no longer shall tinker with the machinery of death.” It became one of the best-known utterances of his long and illustrious judicial career, says his biographer Linda Greenhouse.

  Justice Scalia mocked his fellow justice. Convictions in opposition to the death penalty are often passionate and deeply held, he said, but that is “no excuse for reading them into a Constitution that does not contain them.” Reflecting the depth of the emotion on both sides of the capital punishment debate, how deeply divided the country, Scalia went on:

  Much less is there any excuse for using that cou
rse to thrust a minority’s views upon the people. Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us—the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional—for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that! If the people conclude that such more brutal deaths may be deterred by capital punishment; indeed, if they merely conclude that justice requires such brutal deaths to be avenged by capital punishment; the creation of false, untextual and unhistorical contradictions within the Court’s Eighth Amendment jurisprudence should not prevent them.

  Justice Blackmun was the lone voice for review, and on Texas death row, awaiting his execution, Callins wrote the justice a short letter thanking him. “I hope you are at peace within yourself for doing as you did,” he wrote. Callins was strapped to the gurney on May 21, 1997.