Anatomy of Injustice (23 page)

Zelenka was uncompromising in his support for capital punishment. A woman who had an abortion in the third trimester was guilty of murder and should be executed, he argued in one case. He was disappointed when the Supreme Court ruled in 2005 that executing a person who was under eighteen when he committed the crime he was being punished for was barred by the Eighth Amendment. The decision, in
Roper v. Simmons
, overturned the court’s contrary ruling issued only sixteen years earlier. At the age of seventeen, and a junior in high school, Christopher Simmons planned to commit a burglary and murder “in chilling, callous terms,” Justice Anthony Kennedy wrote for the five-person majority. Simmons assured two accomplices they would get away with it because they were minors. They broke into Shirley Crook’s house at two in the morning, put duct tape over her eyes and mouth, tied her hands, put her in a minivan, and drove her to a state park, where they threw her from a railroad trestle into the Meramec River, in eastern Missouri. However horrific the crime was, the majority held that “the death penalty is a disproportionate punishment for juveniles.” Capital punishment must be limited to those whose “extreme culpability makes them the most deserving of execution,”
the court said, citing an earlier Supreme Court case. A juvenile offender does not fit this category, the court said. For one thing, “as any parent knows,” Justice Kennedy wrote, juveniles lack the maturity and sense of responsibility of an adult.

Kennedy went on to say that the court, over the many years of ruling on death penalty appeals, had recognized that there were two purposes served by capital punishment: retribution and deterrence. “Whether viewed as an attempt to express the community’s moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult,” Kennedy wrote. “Retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity.” As for deterrence, “it is unclear whether the death penalty has a significant or even measureable deterrent effect on juveniles,” Kennedy wrote.

In reversing its earlier ruling that it was permissible to execute juveniles, the court looked at the “national consensus” and “evolving standards of decency,” which were tests for interpreting the Eighth Amendment, the majority said. Thirty states prohibited execution of minors, the court noted: twelve rejected the death penalty altogether, and eighteen states that had the death penalty exempted minors. Finally, the majority noted, “the overwhelming weight of international opinion is against the juvenile death penalty.”

Justice Scalia dissented, joined by Chief Justice Rehnquist and Justice Thomas. A “strict constructionist” who looked to the Founding Fathers’ “original intent” in deciding cases, Scalia declared that the Constitution hadn’t changed from when the court had earlier ruled that the Eighth Amendment did not prohibit the execution of juveniles. He had no use for the concept of interpreting the Constitution by looking at “evolving standards of decency.” He was most disdainful, however, of the notion that the United States should consider the views of other nations. “The Court thus proclaims itself sole arbiter of our nation’s moral standards—and in the course of discharging
that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent,” Scalia wrote.

I
N HIS OPENING STATEMENT
at Elmore’s PCR, Zelenka reminded Judge Kinard that Elmore had been convicted and sentenced by three juries. “Those jurors, the State of South Carolina, the jurors of Newberry County, candidly are looking to Your Honor to ensure that justice will continue to be done in this case.” After law school, Kinard had practiced with a small firm in Camden, some forty-five miles east of Columbia, where he was active in St. Timothy’s Lutheran Church, a member of the Camden Country Club, and secretary of the Camden Charity Horse Show. Jensen found Kinard to be gracious and patient, displaying none of the resentment toward the out-of-town lawyer that Jensen had felt in other jurisdictions where he had appeared.

“I recognize the burden on Mr. Elmore and his counsel to convince me that errors occurred which would mandate a new trial,” Kinard said after listening attentively to Jensen and then Zelenka. He told the lawyers he had the transcripts from the three trials, which he would read. But for now, at the PCR, he would listen to the evidence offered by Elmore’s lawyers “like I was a jury or sitting here from ground zero.” That was just what Holt and Jensen wanted.

J
ENSEN CALLED
his first witness, Elmore’s ex-girlfriend, Mary Alice Harris. (She had remarried, so her last name had changed.) She was still a clerk at Kmart.

A colleague of Holt’s at the Death Penalty Resource Center who had been helping with the appeal, Tony Miles, conducted
the questioning. A twenty-seven-year-old African American, Miles was the son of a prominent civil rights activist from the 1950s and ’60s, Elijah Walter Miles. After graduating from Boalt Hall law school at the University of California, Berkeley, Tony had joined the resource center in Columbia. (He left the center a few months after the hearing, moving to Washington, D.C., to work in the federal public defender’s office.) Miles directed Harris to the evening of January 16, 1982, the night the state said Mrs. Edwards had been murdered, the night that Elmore had shown up at Mary’s apartment, where he wasn’t wanted, and, in anger, had ripped off his shirt, which she then threw away. Her testimony was the same as it had been at Elmore’s trials.

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.

“A
T 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?