Anatomy of Injustice Read online

  But Miles asked the question that no one had asked at those trials—not the prosecutors, certainly, and not Elmore’s lawyers.

  “Did you notice if there was any blood on his shirt that night?” Miles asked.

  “I didn’t notice anything on his shirt that night,” she answered. “He was close enough so that I could see him. I didn’t see anything.”

  “If there was any blood on his shirt that night, are you confident you would have noticed it?”

  “Yes, I would have.”

  “And why is that?” Miles asked.

  “Because he was only three feet away from me at all times. I could have saw it. He was talking to me.”

  On cross-examination, Zelenka sought to undermine her testimony by suggesting she had rehearsed it with Elmore’s lawyers, maybe even been told what to say. It is a conventional, and somewhat weak, cross-examination technique. Good trial lawyers interview their witnesses before putting them on the stand and know what they are going to say (which isn’t the same as telling them what to say).

  “How often have you discussed this matter with anybody that’s currently representing Mr. Elmore prior to your testimony here today?” Zelenka asked.

  “I haven’t discussed it with anybody.”

  Zelenka didn’t believe her. Had she never talked to Elmore’s lawyers about the shirt he was wearing, about whether there was blood on it?

  Nope.

  Zelenka wasn’t doing well.

  Then he asked: Did you ever talk to Anderson or Beasley?

  No. Never.

  That was a bad question for Zelenka to ask. How could the state argue that Elmore had been competently represented if Anderson and Beasley had not interviewed his girlfriend, the woman he was with on the night Mrs. Edwards was supposedly murdered?

  Zelenka wisely dropped the issue.

  He returned to questions about the shirt and forgot a basic rule for trial lawyers: Don’t ask a question to which you don’t know the answer.

  Why had she thrown the shirt away? he asked.

  “I threw it away because I didn’t want his clothes in my apartment.”

  It wasn’t going well for the state. Zelenka stopped asking questions.

  Harris stepped down.

  THE JAILHOUSE INFORMANT, REVISITED

  “AT THIS TIME, Your Honor,” Chris Jensen said to Judge Kinard, “we would like to call Mr. James Gilliam to the stand for examination by Diana Holt from the resource center.” Gilliam stood, walked to the witness box, was sworn in, and took his seat. Holt thought he was Hollywood handsome. He was fidgeting, all six foot seven of him. It was hard to know who was more nervous, Gilliam or Holt, who had never examined a witness before. Indeed, she had never made a court appearance as a lawyer.

  Holt had always scoffed at Gilliam’s testimony. On its face, it was risible. Could anyone take seriously that someone would ask, “If you have sex with a woman and you wash up, would it show any signs that you’ve had sex?” Or that a common murderer, or a rapist, would wipe down an entire house to eliminate his fingerprints—and then clean up the kitchen and carefully arrange things on the victim’s bureau?

  Gilliam had testified for the state and against Elmore at all three trials. Then he had an attack of conscience. First, he told his wife that he had lied. She told him he had better see their pastor, Rev. Emmanuel Spearman. Spearman had known the Gilliam family for years—James’s grandmother, his mother, and the woman he married. “We all grew up in the church together,” Spearman said.

  Spearman lived in an expandable mobile home, permanently parked on a piece of land with evergreens and broad-leaved trees in Hodges, a few miles north of Greenwood. Spearman and Gilliam are both big men, and they seemed to consume the entire living room, furnished with artificial flowers, a piano, a grandfather clock. Spearman sat on a white sofa, Gilliam across from him, next to an artificial tree.

  Gilliam told his pastor that he had lied and that he had decided to come clean because he did not want Elmore’s death on his hands. “Edward never confessed to me,” Gilliam told his pastor. The guards in the jail had told him what to say in the letter, and later, Jones, in his office, told him what to say at trial. In exchange for his testimony, Jones told Gilliam that his jail time would be reduced. He had been facing eighteen months in the state penitentiary; three days after his appearance on the stand, Jones kept his promise, and Gilliam was allowed to serve his time on work release in Aiken, where his family lived.

  Spearman wasn’t surprised Gilliam had lied; that was consistent with his reputation. “I felt like he was lying from the beginning, because why would Elmore confess to a stranger he didn’t even know, while all along he had been telling everyone he didn’t do it?” Spearman told Gilliam he needed to talk to Elmore’s lawyers.

  Not long after, Gilliam, in trouble again for failing to make child support payments, ran into Rauch Wise in the hallway outside the family courtroom. Wise had represented Gilliam a few years earlier, on a charge of receiving stolen goods. Gilliam told Wise he wanted to see Billy Garrett. “You know, you’re not on Billy’s list of favorite people,” Wise responded, referring to the fact that he had testified against Elmore. “Yeah, but I lied,” Gilliam said. The whole thing had been staged, even down to the writing of the letter, Gilliam told Wise.

  Given Gilliam’s reputation, and the fact that he was claiming to have lied under oath three times, the obvious question was, Why believe him now? Wise decided it was necessary to give him a polygraph and arranged for an expert to come over from Augusta, Georgia. He asked Gilliam a series of questions.

  “Did you lie in court when you testified against Elmore?”

  “Yes.”

  “Was the story you told about Elmore a complete and absolute lie?”

  “Yes.”

  Question 9: “Did Al Johnson furnish you the story you told in court?”

  Gilliam said yes.

  He was lying. But when that question was removed from those he was asked, Gilliam was found to be telling the truth.

  Wise alerted David Bruck. But there wasn’t anything that could be done at that point, no way that Gilliam’s lies and recantation could be put before a court, and Bruck put a note in the file.

  Eight years later, as she was preparing for the PCR, Holt desperately began trying to locate Gilliam. He was hard to find, of course, hiding from police, lawyers, and child support payments. She called Gilliam’s mother, his sister, his wife. She told them James was needed at Elmore’s hearing. Could they pass a message to him, have him call her? She heard nothing.

  A few days before the hearing, the line buzzed in Rauch Wise’s law office, on the ground floor of a two-story redbrick building on Main Street. Along with the various diplomas and bar accreditations hanging on the walls, the office is appointed with what Wise calls “prison art,” pieces done by prisoners, including a very handsome three-mast schooner. James Gilliam is on the line, the receptionist said. He was calling from a Western Union office in New York, off Times Square—collect, of course. Wise accepted it. It was vintage Gilliam, Wise thought: he wanted to borrow some money.

  Don’t hang up, Wise said. He pressed the hold button and punched in Holt’s number in Columbia. Wise told Holt who was on his other line. Stunned, she put Wise on hold and punched in Jensen’s number in New York. You’re not going to believe this, she said. Our star witness is in New York City. Back and forth, it went—Jensen, Holt, Wise, Gilliam. Through Wise, Holt told Gilliam that the hearing was to begin in a few days. Would Gilliam be willing to testify about his lie? Gilliam said he would.

  The challenge was to get him back to South Carolina, and quickly. No one wanted to give him money; they knew he’d disappear with it. Jensen came up with a plan, which he explained to Holt, who relayed it to Wise, who told Gilliam, Don’t move; stay right where you are; look for a woman in a red dress. The woman in the red dress was Jensen’s secretary, who quickly walked the few blocks to Times Square; she bought a bus ticket to South Carolina and
gave it to Gilliam.

  A few days later, Gilliam showed up in Columbia. Holt had him given a polygraph. There were three relevant questions:

  Was your testimony at Edward Elmore’s trials completely true?

  Was your testimony about what Edward Elmore told you about the murder of Dorothy Edwards true?

  Was your testimony that Edward Elmore confessed to you in the Greenwood County jail true?

  Gilliam answered no to all.

  “There was no deception indicated in any of Mr. Gilliam’s responses,” concluded the examiner, L. Stan Fulmer.

  The night before the hearing, Gilliam stayed at his mother’s home in Greenwood. A police car pulled up and remained out front all night. It wasn’t to protect Gilliam but to intimidate him, and Holt was still uncertain whether Gilliam would take the stand. Next morning, when Gilliam walked up to the courthouse to testify, Townes Jones spotted him. The prosecutor was surprised and hurried over to talk to him. When Holt saw Jones talking to her star witness, she quickly inserted herself between them; she wasn’t sure how much damage Jones had already done. Jensen confronted Jones. What the hell was that all about? Just protecting the witness, Jones answered, with what Jensen took to be a smirk.

  In the courtroom, Gilliam put his hand on the Bible and swore to tell the truth, the whole truth, and nothing but the truth, just as he had three times before in Elmore’s case. Then he took the witness box, the same place he had sat in 1982 and 1984. He was wearing a three-piece dove-gray suit, which one of Holt’s colleagues had managed to get cleaned over the weekend.

  State your name, please, Holt began.

  Kinard interrupted.

  Was this the witness who was going to recant? Zelenka had alerted him.

  Holt, examining a witness for the first time, was so nervous she could only nod.

  Kinard addressed Gilliam. “Mr. Gilliam, of course, you just swore to tell the truth and the whole truth. You understand that?”

  Yes, Gilliam said.

  Kinard swiveled in his chair and reached for a volume of the South Carolina criminal code on the bookshelves behind him. He opened to the page marked by his clerk. He read the South Carolina law on perjury to Gilliam: “It is unlawful for any person to willfully give false, misleading, or incomplete testimony under oath in any court or regulatory proceeding in this state.” And anyone who violates that law, that is, who gives false testimony, can be sent to jail for five years, he read to Gilliam. Gilliam said he understood.

  Holt tried to go on. Her knees were shaking; she felt like she was going to wet her pants.

  “Mr. Gilliam, are you prepared to tell the truth today?”

  “I want to tell the truth, but I don’t want to be impeached,” he said, misusing a word he had just been hearing from Jones about what might happen if he testified.

  “Are you afraid?”

  “Sure, I’m afraid, but I don’t want to go to jail.”

  “But you’re prepared to tell the truth?”

  “What about this perjury thing?”

  Holt nervously tried to get into the substance of his recantation. “Mr. Gilliam, do you remember where you were …?”

  Gilliam wasn’t quite ready.

  “No, no, no,” he said, turning to Judge Kinard. “What about the perjury? I want to talk about the perjury.”

  Kinard advised him that he might want to get a lawyer and reminded him that he could be guilty of perjury. (Was Kinard trying to protect Gilliam or the state’s case? Holt wondered.)

  “Mr. Gilliam, will you tell the truth today?” she asked.

  “I want to tell the truth, but I don’t want to go to jail for no five years. I mean, it sounds strange. I came in here, and I told a lie. Now I come back to tell the truth, and now you’re going to lock me up because I want to tell the truth.”

  Oh, shit, we’ve lost him, Jensen said to himself. No way he is going to tell the truth now. The courtroom was full of police. It was hard to miss the message.

  Holt was flustered, uncertain what to do.

  “All right. I’ll testify,” Gilliam said.

  Holt wasn’t quite sure she had heard him correctly.

  “Sir?”

  “I’ll go ahead and testify.”

  When she realized what he had said, she told him softly, “I think you’re brave.”

  Under questioning by Holt, Gilliam said one of the senior police officers at the Greenwood County jail had asked him “to help out with Mr. Elmore” and had put the two men in the same cell. But all Elmore had told him was that he had not killed Mrs. Edwards.

  “Did Mr. Elmore say, ‘If you have sex with a woman and wash it off, can they tell’?” she asked.

  “No, he didn’t.”

  “Did Mr. Elmore say, ‘They won’t find any fingerprints, because I wiped them down’?”

  “No, he didn’t.”

  “Did Mr. Elmore say, ‘I didn’t mean to kill her, but she started screaming, so I had to’?”

  “No, he didn’t,” said Gilliam.

  “Did you testify in 1982 and 1984 and 1987 that he did?”

  “Yes, I did.”

  “But today you’re telling this court that’s not true?”

  “I’m telling this court the whole truth.”

  Gilliam asked to address the judge: “I’d just like to apologize to the court, to my mother, and to myself. That’s it. If they’re going to lock me up for telling the truth, I’m ready to go.”

  And go he might well. Don Zelenka stood up and began his cross-examination. In answer to Zelenka’s first questions, Gilliam repeated what he had just told Holt: a senior official at the jail had said to him, “You help me out on the Elmore thing, and we’ll look out for you.” But Elmore had never talked to him, Gilliam now testified.

  But hadn’t Gilliam written a letter to Sergeant Johnson shortly before Elmore’s first trial saying that he wanted to talk to him about the Elmore case? Zelenka now asked.

  “Yes, I told a lie,” Gilliam answered.

  “Well, you did write the letter to Mr. Johnson?” Zelenka asked.

  “I did write the letter, but it was a lie,” Gilliam said.

  “And did you talk to Mr. Johnson”?

  “Yes, to try to benefit myself,” Gilliam answered. “That’s the only reason I did it.”

  Gilliam said that neither Sergeant Johnson nor Solicitor Jones had told him what to say. (Wise wasn’t surprised at this. He knew Gilliam had enough street smarts, and enough experience with the criminal justice system as a defendant, to figure out what the state wanted to hear.)

  Zelenka asked Gilliam about each of his prior statements, under oath, at the three trials. Had they been lies? Each time, Gilliam repeated that they had been.

  “Like you said, I testified to that all four times; but I am here today to tell you the testimony was a lie. There ain’t nothing that you can get out of this, sir.” (Holt didn’t know why Gilliam said four times. Maybe he was referring to the letter to Johnson, but it didn’t really matter.)

  Gilliam was firm, sat erect, head held high. Holt knew that Gilliam was streetwise, slick, and very self-interested. Coming back to tell the truth about Elmore was probably the most decent thing he’d ever done. Watching him hold his own with Zelenka, his resolve tangible, she thought he was the picture of a man speaking truth to power. Steeled, unblinking, he didn’t slouch but instead seemed to lean into Zelenka when he answered.

  ZELENKA: Why was it a lie in 1987?

  GILLIAM: It’s a lie now. It was a lie then. It’s a lie now. That’s all I’m concerned about it. Nothing you can get out of here.

  ZELENKA: Why was it a lie in 1987?

  GILLIAM: I’m telling you the truth.

  ZELENKA: Why didn’t you testify truthfully in 1987?

  GILLIAM: Well, at that time I was trying to get out of jail. I was still living in Greenwood County.

  ZELENKA: In 1987? At the last trial?

  GILLIAM: Yes. I still lived in Greenwood County.

  ZELEN
KA: Still living in Greenwood County?

  GILLIAM: Still living in Greenwood County, and you ain’t going to tread on no water, my friend.

  ZELENKA: Same thing in 1984?

  GILLIAM: ’84.

  ZELENKA: In ’82?

  GILLIAM: ’82.

  Wasn’t Gilliam just trying to save Elmore from the electric chair? He asked, You don’t believe in the death penalty, do you? No, not really, said Gilliam.

  ZELENKA: And you don’t want Mr. Elmore to die in the electric chair?

  GILLIAM: No.

  ZELENKA: Even if he did these crimes?

  GILLIAM: This is my opinion. If you did it, and you know, really know, they did it, he should die in the electric chair. If he didn’t do it, I don’t think nobody should die in the electric chair.

  ZELENKA: So you really think he should die in the electric chair?

  GILLIAM: If he’s guilty.

  ZELENKA: But you deny that he had any discussions with you in jail?

  GILLIAM: Yes. Now, that’s the truth. Only thing that Elmore told me was that he didn’t do it. All the other stuff, I made up.

  Jensen had harbored doubts about Gilliam, wondered, as would most, why his recantation should be believed. But after listening to his testimony in that environment, with perjury charges hanging over him, when he had everything to lose and nothing to gain, when he could have stepped off the stand and been tossed in jail, Jensen changed his mind. “At that moment I was certain, to a moral certainty, that he was telling the truth.”

  “It was on my conscience. I went back and cleaned it up,” Gilliam said years later. “I made peace with myself, and I told the truth.”