Anatomy of Injustice Page 8

  Was there any evidence of sexual assault? Jones asked Conradi. There were abrasions on the vagina, Conradi said. But she found no traces of sperm in any of the “oral, rectal, and vaginal orifices.”

  This wasn’t the answer Jones wanted and needed. A black man raping a white woman was a crime worse than murder to many southerners. Besides, if Elmore hadn’t raped Mrs. Edwards, some jurors might wonder why he had broken into the house, the police having concluded that robbery wasn’t a motive.

  Is it possible for semen to be expelled into the vagina without there being sperm? Jones asked.

  Possible, said Conradi.

  That was too equivocal for Jones.

  “I would ask you this, then, as a forensic pathologist: Was the injury to her vagina consistent with the insertion of an erect human penis?” Jones said.

  Anderson could have objected. It was a leading question. On direct examination a lawyer is not allowed to ask leading questions, which are questions that suggest the answer. Generally, questions that can be answered yes or no are leading questions. A nonleading form of the question could have been: As a forensic pathologist, could you tell us what might have caused the injuries to the vagina? But Anderson didn’t object.

  “Yes, sir,” Dr. Conradi answered.

  Satisfied, Jones moved on to the crucial question of when Dorothy Edwards was murdered. Again, he had trouble getting the answer he wanted.

  It is difficult to determine the time of death with any accuracy, Conradi explained. Mrs. Edwards could have been murdered anywhere from twelve hours to three days before she examined the body, Dr. Conradi said.

  Jones wanted one time—Saturday evening. This is when the police had determined Mrs. Edwards had been murdered, based on what Holloway had told them. And Jones knew from police interviews with Elmore’s girlfriend, Mary, her brother Donnie, and Donnie’s wife, Sue, that Elmore would have trouble accounting for a two-hour period late Saturday night.

  Conradi wanted to avoid being pinned down to a specific time. Determining time of death is not an exact science, and South Carolina pathologists were not well trained in conducting death investigations.

  Jones was persistent.

  “All right, then, I’ll ask you this question. Is that wide range of estimates consistent with the possible death between ten and twelve o’clock p.m. on the night of January the sixteenth?”

  Another leading question. Anderson did not object.

  Yes, said Dr. Conradi.

  Jones was satisfied and was finished with questions for the pathologist. “Thank you, ma’am,” Jones said, sitting down. “Answer questions counsel will ask you.” He hadn’t asked her about the “Negroid hair” he had told the court she had found on Mrs. Edwards’s body, which seemed surprising. But it wasn’t an oversight by Jones; he knew something about that hair that he did not want Elmore’s lawyers to know.

  John Beasley stood. He didn’t ask her about the “Negroid hair” either. He asked only six questions and did more to harm than help Elmore. Didn’t you say that you could not say with certainty that there was sexual assault? he asked Conradi. That was not what she had said, and this gave her a chance to reiterate. “I can say with certainty that there was sexual assault.” What she could not say with certainty was whether Mrs. Edwards had been raped. The penetration of the vagina might have been with “a foreign object,” she said. That was tantalizing, but Beasley didn’t ask, “Such as what?” On the time of death, Beasley didn’t ask Conradi if it could have been Sunday, which was within her parameters. He did ask her whether Mrs. Edwards might have been murdered as early as three o’clock Saturday afternoon. Conradi answered that while it might be possible, her estimate, which was based in large measure on what the police had told her, was that Mrs. Edwards had been murdered sixty-five hours before she examined the body, which would make it Saturday evening.

  On recross, Jones used his questions, and Conradi’s answers, to drive home to the jury that Mrs. Edwards had been murdered Saturday evening. This became a critical given in the case, accepted by virtually everyone.

  When Conradi finally finished testifying, it was very late. Burnett apologized to the jurors and let them go to the Holiday Inn.

  THE GIRLFRIEND

  “GOOD MORNING, ladies and gentlemen. I hope you had as pleasant an evening as you could under our circumstances. Y’all do look very fresh and ready for another very difficult day,” Judge Burnett cheerfully greeted the jurors when they returned at 10:00 a.m. on Thursday, April 15, the fourth day of the trial.

  Jones called Mary Alice Dunlap, Elmore’s estranged girlfriend, to the stand. Jones was wary, not certain whose side she’d be on. She was sworn in and took the witness chair. She was nervous as she looked at the crowded courtroom but seemed to relax once she started giving testimony. Jones asked her about her relationship with Elmore: how long they had dated; their on-again, off-again living together in her Greenwood Gardens Apartments; how she would ask him to leave, he’d move out, then she’d take him back. Jones came to Saturday the sixteenth. Her story largely matched what Elmore had told the police. She added a few details. On the way from Kmart to her mother’s they had passed him on Baptist Street. It was around ten. She and the other members of her family had arrived at her apartment around ten thirty. Around midnight, or maybe twelve thirty, Elmore showed up. She told him to leave. He refused. He said he wanted to get the clothes he had left at her house. She told him she had thrown them away. She turned off the lights and everyone left, except Elmore.

  Jones had more questions.

  “Was there any conversation concerning the condition of his lip?” he asked Dunlap.

  “He asked was his lip swollen. I said it was swollen a little bit.”

  “That’s his upper lip.”

  “Uh-huh.”

  Jones didn’t ask the obvious question. He knew the answer. As part of their investigation, Greenwood police detective Perry Dickenson and SLED agent Tom Henderson had questioned Warren Martin, the live-in boyfriend of Elmore’s sister Peggy. He had seen Elmore on Sunday morning. He was limping and his lip was swollen, Martin told the officers. “Did he tell you what happened?” they asked. Yes. Elmore said he had slipped on some ice coming out of Mary Dunlap’s apartment, Martin told the police officers. The jury never heard this. Jones preferred to leave the inference that Elmore had cut his lip struggling with Mrs. Edwards.

  Jones asked Dunlap what Elmore was wearing. A brown jacket, an off-white shirt, and jeans, she answered.

  “What, if anything, transpired with regard to the jacket, white shirt, or jeans?” Jones asked.

  “What you mean, ‘transpired’?”

  “What took place? What happened to it? What happened to the coat, shirt, or britches?”

  Elmore had started to unbutton his shirt, then just ripped it off, she said. “I picked it up and threw it in the trash.”

  Again Jones left the obvious question unasked. He preferred leaving jurors with the inference that the shirt had blood on it and that Elmore was getting rid of incriminating evidence. “Your Honor, that’s all I have at this time,” Jones said, and sat down.

  Anderson had only a few innocuous questions. When did Dunlap and Elmore begin dating? When did she get divorced? How many children did she have? Did she want to marry him? Yes. Had they had lovers’ spats? Yes. Did she still love him? Yes. That was it. If Anderson had read the police interviews of Martin and Dunlap, which Jones had given to him, as he was required to, he would have known the questions to ask, and the answers would have helped Elmore.

  Like a good prosecutor, or defense lawyer, Jones wasn’t going to let a critical piece of evidence—where Elmore was at the time the state said Mrs. Edwards had been murdered—rest on one witness. He called as a witness Frances Moseley, Mary’s mother. She, too, could testify that Elmore had not been seen between 10:00 p.m. and midnight—if Jones could get her to speak so that the jury could understand what she was saying.

  Where do you live? Jones asked. />
  He couldn’t understand her answer.

  “It might help a little bit, if you don’t mind, if I could take your gum. Do you mind?” She was a habitual gum chewer.

  “No, sir.”

  “Can I have your gum?”

  “Okay.”

  Jones took a piece of paper off the counsel table, walked a few steps, and gave it to Mrs. Moseley. She took the gum out of her mouth, put it in the paper, and held it while Jones took up the questioning. He still had difficulty getting the responses he wanted.

  “Do you know when it was that you went back down there to your daughter’s house?” asked Jones.

  “I don’t understand.”

  “Well, now, I thought the four of you went down to your daughter’s house first.”

  “Yes.”

  “And y’all stayed down there—”

  “Yes, sir.”

  “—for about an hour?”

  “Yes, sir.”

  “Well, wouldn’t that put it up around eleven, or later?”

  “Yes, sir.”

  Beasley objected. Jones was leading the witness. But Judge Burnett was sympathetic to Jones’s plight in dealing with an uneducated black woman. “I think in this case some leading is going to be necessary,” the judge said. Jones continued to lead his witness. Eventually, he got all he could from Mrs. Moseley.

  Then he put Mrs. Moseley’s daughter-in-law Sue Moseley on the stand.

  She also was uneducated, and Jones had the same problems.

  “Before you got to your mother-in-law’s house, did you meet somebody?” he asked.

  “Yeah, we did. We met Lee.”

  “And where did you meet him?”

  “I get mixed up with the streets.”

  “You get mixed up?”

  “Yeah.”

  “Well, was it on the street before you turn into the little street where your mother-in-law lives?”

  “Yeah.”

  “What did his car do, if anything?”

  “What you say now?”

  Jones was frustrated and again resorted to leading questions. Anderson objected. Burnett was as exasperated as Jones. “You understand we have a problem with this one, also,” the judge said. Not a problem with “this witness” or with “Mrs. Moseley.” With “this one.” He let Jones continue to ask leading questions.

  Jones finished. Anderson had no questions.

  In spite of the difficulties with the witnesses, Jones seemed to establish a gap in Elmore’s activities on the evening in question. Mary and her brother had seen him around ten and not again until about midnight. In those two hours, the state argued, he had driven over to 209 Melrose Terrace, knocked on Mrs. Edwards’s door, and raped and killed her.

  HAIR ON THE BED

  JONES WAS METHODICALLY building the case against Elmore. Conradi had testified that Mrs. Edwards was murdered Saturday evening. Elmore’s girlfriend and family had testified that they had not seen him late that evening. But Jones had yet to give the jurors any evidence that conclusively placed Elmore inside the house when Mrs. Edwards was murdered. The fingerprint by the back door might have been left when Elmore was legitimately working there.

  Jones called Ira Parnell, one of the two SLED investigators at the crime scene. Jones had the easel set up. He walked over to it and, using his pointer, directed Parnell’s attention to the victim’s bedroom. He asked Parnell to direct him to where the bed was.

  “The upper-right-hand area of the drawing, right there,” Parnell said, as Jones moved his pointer.

  Jones asked Parnell to step down from the witness box and approach the easel. He asked him to describe the condition of the bed. There was a small pillow in one corner, and the top cover of the bed had been folded back, Parnell said.

  Had Parnell found anything on the bed?

  “Yes sir, I did,” he said.

  “And what did you find?” Jones asked.

  “I found a quantity of human hair.”

  “A quantity of human hair?” Jones repeated, stressing the point to the jury.

  The hairs had been spread over an area approximately eighteen inches long and three feet across, Parnell said. Parnell said he had collected the hairs, put them in a baggie, and delivered it to SLED chemist Earl Wells for examination.

  Jones finished his questioning of Parnell. He had now presented evidence that was damning—and new. Neither Johnson nor Owen had mentioned finding any hairs on the bed in their reports, nor had anyone else, nor had there been any reference to hairs on the bed in any of the proceedings prior to the trial. Anderson had no questions.

  Parnell’s testimony about finding hairs on the bed was tantalizing, but the jury had to wait until later in the trial for the rest of the story.

  On Friday, the fifth day of the trial, Jones called Earl Wells. He began with routine questions about Wells’s background—a BS in chemistry, five years in the textile industry before joining SLED as a forensic chemist. Wells said he had conducted “several hundred” tests and had testified in many trials. Jones asked Wells if he had received samples of the victim’s head and pubic hairs. He had. Had he received samples of the defendant’s head and pubic hairs? Again, he had.

  “I ask you furthermore if you received a sample of hairs that were collected from the bed of the victim by SLED agent Ira Parnell, brought to you by SLED agent Dan DeFreese.”

  “I did.”

  Items of physical evidence that either side wants to introduce into evidence are given a number. The baggie with the hairs Parnell said he found on the bed was State Exhibit 58.

  “I hand you State Exhibit 58, and I ask you if they contain fifty-three hairs gathered from the bed of the deceased, Dorothy Edwards?” Jones said to Wells.

  “I think the total count on the hairs is forty-nine, Solicitor,” Wells said.

  Jones was taken aback. During his opening argument, he had told the jury fifty-three hairs had been found on the bed.

  “Would you check your records,” Jones now said to Wells.

  “I do not recall the number, but as I recall there’s forty-two in here and seven of which I used to prepare microscopic slides with.”

  “Forty-nine?” Jones asked, surprised.

  Wells, a thirteen-year veteran, was uncomfortable. He knew there was a cardinal rule: You never challenge Willy T.

  Wells answered honestly, “Yes, sir.” Forty-nine.

  Jones knew better than to get into a disagreement with his own witness in front of the jury, and he let the matter of the number drop.

  Wells testified that he had taken seven hairs out of the bag, mounted them on slides, and examined them under a microscope. Two were probably Mrs. Edwards’s pubic hair; two were her head hair, he said. Three were Elmore’s pubic hair. The remaining forty-two? “My opinion is that there’s a very high degree of probability that these hairs originated from the defendant in this case,” Wells testified.

  Jones asked Wells a few more questions—how could he distinguish head hairs from pubic hairs, cut hairs from yanked hairs?—and then turned the witness over to Beasley for cross-examination. Could Wells say with absolute certainty that the hairs found on the bed came from the defendant? he asked. No, said Wells, though with a “high degree of probability.” Beasley made nothing of the inconsistency about the number of hairs in the baggie, or of the fact that Wells said DeFreese had given him the hairs, while Parnell had testified that he had delivered them to Wells. Beasley asked three questions in all.

  THE JAILHOUSE INFORMANT

  IN CRIMINAL CASES, the state must convince the jury of the defendant’s guilt “beyond a reasonable doubt.” This standard of proof “dates from at least the early years as a Nation,” the United States Supreme Court noted in In re Winship, which held the standard applied in a juvenile delinquency hearing for a twelve-year-old boy who had stolen $112 from a women’s pocketbook. Trial lawyers and legal philosophers debate the meaning of the phrase, which is not defined in the Constitution. One of the most often cited defin
itions was by the renowned chief justice Lemuel Shaw of the Massachusetts Supreme Judicial Court in 1850. The standard does not require the state to eliminate “mere possible doubt,” because everything in human affairs is open to some doubt, he wrote. But it must do more than “establish a probability” that the facts are true. The jurors must be convinced “to a reasonable and moral certainty,” he wrote.

  The case against Elmore seemed to be loaded with doubt. If there was a moral certainty after two days of testimony from some twenty witnesses, it might have been that Elmore was innocent. How did the state explain that only one of Elmore’s fingerprints was found at the scene? And that could have been left weeks before the murder. How was it that there was an absence of any semen, even though the state was charging Elmore with rape? The police had concluded nothing valuable was taken from Mrs. Edwards’s house, so what was the motive? Yes, Jones had presented testimony that Elmore’s hairs were found on the bed, but given the inconsistencies about the number, some jurors might have had reasonable doubts about the veracity of that testimony.

  As his penultimate witness, Jones called the man who could plug the holes: James Arthur Gilliam Jr. He was thirty-nine years old, with eight kids, a big man at six seven. He had a rap sheet that ran to several pages: burglary in Brooklyn, New York; a string of fraudulent-check charges in South Carolina; receiving stolen property; prison escape; disorderly conduct; resisting arrest; assault and battery. He was currently in the Greenwood County jail for violation of probation on a conviction for receiving stolen property. He was facing eighteen months in state prison.