Anatomy of Injustice (31 page)

Slide 4: A white Caucasian head hair with some dried blood on it. Could be the victim’s, “but there is a finite likelihood that it could originate from another white haired person.”

He concluded, “None of these hairs are microscopically similar to Mr. Elmore’s head or pubic hair.”

Palenik sent Holt a letter with his results. It was June 1999, six years to the month since she had started working on the Elmore case. She called Zelenka. Surely he’d agree to a new trial now, she told him. His obligation, she reminded him, was to do justice.

In a manual for government appellate lawyers, Zelenka contrasted their role with that of defense lawyers. The latter, he wrote, were bound by the Constitution to provide a vigorous defense. “Our role as prosecutors, however, is much higher—to be a minister of justice,” he wrote. That is the noble legal theory. The reality is too often far removed, as Zelenka demonstrated.

If there is a flaw in the adversarial system of justice that has developed in America, it is that the adversarial nature of it outweighs justice. Prosecutors want to win at trial. Appellate lawyers want to win on appeal. Justice often gets lost. Moreover, for an attorney general’s office to say that new evidence supports the inmate’s claim of innocence, or that his trial was constitutionally flawed, is an admission of error by the state. In Elmore’s case, it would mean admitting that such errors had been committed three times. In fighting Elmore’s lawyers at every turn, Don Zelenka and the attorney general’s office were behaving like counterparts around the country.

A
T THE TIME
Z
ELENKA
was resisting Elmore’s appeals, in Arizona the state’s lawyers were exhibiting a concomitant determination to have Ramón Martínez-Villareal executed. He and a friend had broken into a house in Tumacacori, Arizona, hard
on the Mexican border, and made off with several high-caliber rifles and ammunition. On their way to Mexico, they came upon two men grading a road. The men were killed. It was not clear who pulled the trigger, Martínez-Villareal or his partner. The police never found the other man. Martínez-Villareal was arrested in Mexico and kicked around a bit before being turned over to the Arizona authorities. He was charged with felony murder (murder during the commission of a felony), convicted, and sentenced to death.

Martínez-Villareal, four foot nine, 130 pounds, was severely mentally retarded, with an IQ between 50 and 64, and suffered from schizophrenia, depression, and brain damage. During his trial, he didn’t know the difference between the spectators and the jurors. His biggest concern was his new boots, which had been taken from him when he was arrested. He kept asking his lawyer when he would get them back. When the judge pronounced the death sentence, Martínez-Villareal asked his lawyer when he would get his boots.

None of the lawyers in the small town of Santa Cruz had wanted to touch the case, certainly not at $30 a hour, which is what the state paid, so the court had appointed the last man on the list, William Rothstein, only four years out of law school. He had never tried a murder case. Rothstein presented no evidence of his client’s mental retardation. On appeal, Martínez-Villareal’s new lawyers argued that he had been denied effective assistance of counsel.

For several years, the case bounced back and forth between the state and federal courts, including the Supreme Court. In 1997, the case took an astonishing turn. “Had we been made aware of any prior mental history, it would have been my recommendation that we not proceed with a death penalty request,” the district attorney who prosecuted Martínez-Villareal, Bruce Stirling, told a parole board considering Martínez-Villareal’s application for a commutation. “One of the primary functions of the county attorney’s office and all prosecutors is to seek justice,” he said.

The trial judge who had sentenced Martínez-Villareal to death also said that he had been wrong. There was “no question”
that Martínez-Villareal had not been adequately represented at trial, said Judge Roberto Monteil.

“And under these circumstances, do you think it’s fair to execute Mr. Martínez?” a board member asked.

“No,” said the judge.

In the annals of death penalty jurisprudence, it was unlikely there was another case in which both the prosecutor and the judge said that they had been wrong in seeking the death penalty. Nevertheless, the parole board voted 5–1 against clemency. The lawyers won another stay and made another trip to the U.S. Supreme Court. Now they argued Martínez-Villareal was insane and therefore could not be executed under
Ford v. Wainwright
, a 1986 Supreme Court decision barring the execution of an insane person. The court agreed, and the case was returned to the Arizona state courts. The state won the next round and set another execution date. Then the Arizona legislature passed a law banning the execution of the mentally retarded. Still, the attorney general didn’t give up. He argued that the law wasn’t retroactive. Finally, in June 2002, in
Atkins v. Virginia
, the Supreme Court held that it violated the Constitution to execute an individual who was mentally retarded, which is generally defined as someone with an IQ under 70. The state of Arizona finally gave up trying to execute Martínez-Villareal, grudgingly.

Zelenka was as resolute as his Arizona counterparts. Even after Item T had been located and Palenik said the hairs were only Caucasian, Zelenka didn’t think that a new trial for Elmore was justified. Earl Wells should look at the slides again, he proposed. Holt was incredulous. Despite their disagreements, until then she had considered him a civil servant simply doing his job, albeit with a different value system than hers. Now she saw him as a prosecutor driven by a determination to win, not by the pursuit of truth or justice. The relationship continued to sour.

With Zelenka refusing to agree to a new trial, Holt and Jensen returned to court. “It is our view that at this stage there is really only one course open to the court, which is to grant relief on this petition and allow us to have a new criminal trial for Mr. Elmore,” Jensen told Judge Kinard. It was now clear that Item T
had been “misdescribed,” Jensen said, again using a restrained euphemism. “Whether that was done deliberately in order to conceal the evidence or it was just done as a result of negligent, faulty law enforcement efforts by SLED, is irrelevant.” The fact was that for nearly seventeen years, SLED had said it could not find Item T, when it was in SLED’s possession all the time. And Earl Wells had sworn under oath that it was blue fiber on those slides, not hair. Jensen invited Judge Kinard to look at the slides. “You can tell by looking with the naked eye that there is not just blue fiber on those slides, that there is hair on those slides.”

Jensen pleaded, “Let Mr. Elmore have the trial that he never got. Let Mr. Elmore have due process. Let Mr. Elmore be represented by effective counsel who will look at this evidence in a serious way and who will present his case for his innocence and allow the jury to decide that case.”

Zelenka wouldn’t budge. Item T needed to be examined further, he argued to Judge Kinard, proposing, as he had to Holt, that Wells look at the slides again. It will only take him a few hours, he assured Judge Kinard.

Holt was beside herself. She didn’t often speak in the court. As bold, gutsy, and intrepid as she was on some levels, she was also basically shy and insecure. Now she could not hold back. She related to Judge Kinard her conversation with Zelenka. “I told him that I considered it absolutely of no value to this court to have Mr. Wells look at the hair again. In fact, I didn’t understand why Mr. Zelenka would want Mr. Wells to look at the hair considering that Mr. Wells has had the hair in his possession for seventeen years; that Mr. Wells is the person who received this hair evidence from Sandra Conradi who mounted it on slides, who examined it under a microscope and then wrote down the result of his analysis as blue fiber. Mr. Wells at this point has maybe more interest in the outcome of this analysis of that hair evidence than Mr. Elmore does. So I don’t think that Mr. Wells is the appropriate person to examine the hair.”

Judge Kinard interrupted: “And you are getting frustrated?” he asked with an avuncular smile.

Holt apologized.

But Kinard, too, was disturbed by the suggestion that Wells should examine the slides. He ordered an independent analysis, allowing the state to select the examiner. The state chose a retired FBI forensic scientist whose specialty was hair and fibers, Myron Scholberg.

On the morning of August 10, 1999, Holt flew up to Richmond, Virginia, rented a car, and then drove to Scholberg’s home in Williamsburg. She was carrying the four glass slides that were Item T. In order to rebut any suggestion that she might tamper with the slides, she had them copied at Wells’s SLED office on the day they were found. Salley Elliott, who had driven up with her family for a vacation that would follow, met her there. The three engaged in a stream of social banter in Scholberg’s office, a small, long, narrow room in his house, talking about their kids and other unrelated matters; they could have been at a luncheon, Holt thought. Scholberg was at a desk, peering into his microscope. Holt stood so close that she could practically see into the microscope herself. She scribbled notes while Scholberg muttered. “I didn’t know SLED was this bad,” he said at one point, raising Holt’s spirits. He mumbled that he couldn’t understand how Wells could possibly have looked at the slides and not seen hair. When he finished, he returned the slides to Holt, who wasn’t sure what he had concluded.

Later that day, Scholberg sat at his typewriter and wrote Don Zelenka a report. It was only two pages long, but it allowed for no equivocation.

Slide 1: A single pubic hair “of Caucasian origin that is microscopically like those of the victim.”

Slide 2: Three animal hair fragments and a woolen fragment; in addition, a Caucasian hair fragment.

Slide 3: A single Caucasian head hair, which could have come from the victim.

Slide 4: A single Caucasian head hair “microscopically like those of the victim.”

“No hairs of Negroid origin were observed on any of the slides,” he wrote.

In light of Scholberg’s report, Holt was now beginning to put
the pieces of the puzzle together. Wells had known as soon as he looked at the hairs that they were Caucasian, not Negroid. This was Tuesday afternoon, the day after the body was found, and before Elmore had been arrested. At the same time, having taken Mrs. Edwards’s fingerprints, SLED knew there were fingerprints in the house that were neither hers nor Elmore’s. In light of these two findings, the state had almost no case against Elmore, or only a very weak one at best. Thus, Holt’s theory went, Coursey had yanked the inordinate number of pubic hairs from Elmore, and these were the ones the state said were found on Mrs. Edwards’s bed.

Holt contemplated her next move: DNA testing. She needed to know if it was Mrs. Edwards’s hair. If it wasn’t, that would be prima facie evidence that a white person had murdered Mrs. Edwards, and would also suggest that the police had lied and planted evidence.

Around the country, DNA testing was giving hope to prisoners who claimed they were innocent. Some cases looked a lot like Elmore’s.

One month after Mrs. Edwards was murdered, in Nampa, Idaho, nine-year-old Daralyn Johnson was found in a ditch on the edge of the Snake River, brutally raped. The police found three pubic hairs on her small body—one on her sock, two on her underpants. For seven months, the police were stymied. Then they focused on Charles Fain, a Vietnam vet and heavy drinker who bounced between Oregon and Idaho, working at whatever odd jobs he could find. He had recently moved back to Idaho and was living with a woman a block away from Daralyn. That and the fact that he had light brown hair were the only reasons the police had for questioning him. He said he had been 360 miles away at his parents’ in Redmond, Oregon, at the time Daralyn was killed. The police asked him to take a polygraph test, and he agreed to it. When he denied that he had raped and murdered Daralyn Johnson, the examiner concluded he was telling the truth.

Still, the state, under pressure from the community to solve the heinous crime, charged him. Siding with the prosecution,
the judge did not allow the polygraph into evidence. An FBI agent testified that the hair found on Daralyn matched Fain’s. And as in Elmore’s case, the state produced a jailhouse informant, actually two, who had shared a cell with Fain while he was awaiting his trial. They testified in lurid detail about what they said Fain had told them about the crime, much as Gilliam had about Elmore. Fain was convicted after an eight-day trial, and the judge sentenced him to death. Fain’s conviction was upheld by state and federal courts.

Fain had been on death row sixteen years when his appellate lawyers persuaded a court to order DNA tests on the hairs found on Daralyn. It was August 1999, the same month that Myron Scholberg was examining Item T. The results showed that the hair on Daralyn’s sock and panties were not Fain’s. The state decided not to prosecute him again, and on August 23, 2001, Fain, who had entered death row when he was thirty-five, walked to freedom, eleven days shy of his fifty-third birthday.

The state’s decision was not widely applauded.

“It doesn’t really change my opinion that much that Fain’s guilty,” said the prosecutor, Richard Harris.

The trial judge, James Doolittle, agreed: “In my opinion, he’s guilty.” The DNA results did not sway him.

Holt was nervous about DNA testing. While DNA exonerations of death row inmates often made the headlines, she knew there were many convictions as the result of DNA tests. And if the Greenwood police had lied or planted evidence, which she was increasingly convinced they had, the DNA tested would come back positive. Or what, just what, if Elmore was guilty? She didn’t believe it, but with the consequences potentially lethal, she could not take any chances. She called Elmore. It was, after all, his life. She put it as simply and bluntly as possible.

“Let me break it down for you, Eddie,” she said. “If that hair is yours, when the man looks in that microscope he is going to see Elmore.”