Anatomy of Injustice (36 page)

Following the latest loss in front of Judge Kinard, Elmore’s case was again headed to the South Carolina Supreme Court. Holt had already filed a petition for a writ of certiorari. In it she laid out the constitutional issues that the court needed to address: prosecutorial misconduct, ineffective assistance of counsel, withholding of evidence in violation of
Brady
, exclusion of blacks from the jury in violation of
Batson
. At least three of the five justices thought the case raised significant constitutional issues, and cert was granted. Now she was at work on the brief in support of their arguments. Holt wrote drafts and sent them to Jensen and Blume. Blume kept making changes that Holt didn’t want. Blume wanted to ask the court for an extension of time to file the brief. Holt wanted no more delays: Elmore was innocent, and he had been on death row too long
already. “If this were any other case, I’d tell you what to do and you’d do it,” Blume said angrily one day. But Elmore was not just another case, not for Holt. This was her case. Blume knew it and backed off.

Holt filed her brief in September 2003. The state’s reply was due thirty days later. Zelenka asked for an extension, then another and another. Finally, he filed, in January 2004. The court set oral arguments for May 27.

Making a supreme court appearance is the high point in many lawyers’ careers, and there was some clashing of egos as Elmore’s lawyers considered who would argue the case. Holt, Jensen, and Blume were all qualified in different ways, and each would have liked to. An outsider, Barry Scheck, was considered. Since gaining fame in the O. J. Simpson case, he had set up the Innocence Project at the law school at Yeshiva University, and his name had become synonymous with getting innocent men out of prison.

It was basically Holt’s decision who would argue, and she went back and forth over whether she should do it herself. She knew the facts best, and her obvious passion might move the justices. Jensen agreed; besides, he knew he would be seen as a liberal northerner.

A couple of weeks before the hearing, Holt decided she’d argue and began preparing with moot courts. One was held before lawyers at her husband’s firm; another before a panel of death penalty lawyers. They did not go well. “I’m going to give up my bar card,” she moaned after one moot court. Her self-doubt grew. She knew she was not, as David Bruck put it gently, “a natural in the courtroom.” A week before the hearing, steeling herself, she went into Blume’s office and expressed her doubts. Blume said he was prepared to argue the case if she wanted him to. “Just give me twenty-four hours’ notice,” he said.

She called Elmore. She might not be the one to argue his case, she said. Mr. Blume might. Holt could sense that he was hurt. Was Diana giving up on him? No, she explained, this was in his best interests. In fact, she was still wavering. Saturday night, at home, eating a steak-and-vegetable kebab, pouring red
wine, she argued with herself out loud. Finally, she said, “I’m going to do it.” Two days later, shortly after noon on Monday, she went in to see Blume again.

Her voice cracking, she looked down, fighting tears. “I feel like I should be there for him, but, well, I think it is the right thing to do.”

Are you talking about Elmore? Blume asked.

Yes, she said. “I know you’ll hit it out of the park.”

“Don’t be so sure,” he said. “You can think about it for another day.”

Whatever the outcome, Diana knew she would blame herself. If she argued and lost, she would feel she should have let Blume argue. If Blume argued and lost, she would blame herself for not having argued the case.

She had finally made up her mind. Blume would argue.

T
HREE DAYS LATER
, on the warm morning of May 27, the temperature pushing ninety degrees before noon, Holt, Blume, and Jensen walked from the death penalty resource center to the Supreme Court Building, which had been the post office until 1971. Jensen had flown down from New York the previous day. When Diana picked him up at the Columbia airport, the first thing she did when they got in the car was call Elmore on her Nokia. Once she had him on the line, she told him that Chris Jensen was with her, and she handed him the phone. The message was not lost on the New York lawyer: there is an individual involved in this case, and you have to make sure Elmore knows you care about him.

Townes Jones was one of the first to arrive for the argument. It is not unprecedented for a prosecutor to come for a supreme court argument, although it is unusual. But Jones had more at stake in this case than a typical prosecutor: his father’s reputation was on the line, as was his own, as well as that of the Greenwood police force. He brought his eleven-year-old daughter, Gilland, with him, which Holt found bizarre. “I wanted to show her what her father does,” Jones said, introducing Gilland to a reporter. Precocious and homeschooled, Gilland was a
petite budding model and had already appeared in national ads, Jones proudly noted before going into the courtroom.

Several of Elmore’s siblings had made the long drive from Abbeville. When they walked into the courtroom, they shook hands with Blume and Jensen. They hugged Diana, who wore a yellow ribbon on her checkered coat. Diana had a warm embrace for Salley Elliott, cocounsel to Don Zelenka on the case. She shook hands professionally with Zelenka. Holt sat at the counsel table between Jensen, in a pin-striped suit, and Blume, in a dark navy suit (during the proceedings she would occasionally hand Blume a note). She had her computer open in front of her; the screen saver was a picture of Justin.

There are five justices on the South Carolina Supreme Court. Two of them—E. C. Burnett and Jim Moore—had presided over Elmore trials, so they had to recuse themselves. The chief justice, Jean Toal, also recused herself at the last minute, for reasons she never explained. Three substitute justices would be hearing the case.

The justices filed in and took their seats. Blume stood, walked to the lectern, and addressed the court. His arguments were those that a good defense lawyer would have made at trial (and Anderson had not). How was it possible that the investigators had not taken the sheets from the bed where they claimed to have found Elmore’s pubic hairs? “Do you know how much blood they found on the bed?” he asked. “Not a drop, not a bit.” How could it be that there was no blood on Elmore’s shirt? It should have been covered with blood, given the nature of the crime. How could it be that there was no hair found under the victim’s fingernails, if she had reached up and pulled out his pubic hairs as the state argued so graphically? “Did trial counsel ever point this out?” Blume asked. “No.” He again accused SLED agent Wells of lying about Item T. As for that hair that Wells now admitted was on Item T, “most likely it was the perpetrator’s,” Blume said. That fact alone justified a new trial, Blume argued.

“Three unfair trials don’t make one fair trial,” Blume said. “The fact that there have been three proceedings or thirty-six
jurors, that doesn’t mean a thing in this case because no jury has ever heard the evidence which should be heard, and which must be before a man can be dispatched to death.”

Blume sat down. To his right, Donald Zelenka stood, buttoning his suit jacket. It was a gesture he always performed when he stood to address a court, “a crutch to focus my attention,” he called it. “There were mistakes in this case,” he conceded quickly. “But those mistakes do not undermine the confidence in the verdict.”

Justice Costa M. Pleicones interrupted. “There are mistakes in every trial, and we don’t require perfection,” he said. But what about agent Wells’s testimony about Item T, which Wells had said was blue fibers but when tested was found to indeed be hair? “Mr. Blume asserts it is flat out and out perjury,” said Pleicones, who asked more questions than the other justices combined. “I’d like for you to address that.”

Wells’s report was an “error,” Zelenka conceded, but he had not committed perjury. He went on: “The fact that there is one stray hair that was located on the victim’s body at that time commingled with fibers and commingled with her hair” was not reason to grant a new trial. It was the same “stray hair” theory accepted by Judge Kinard.

Zelenka turned to the fingerprints. Yes, there were fingerprints in the house that weren’t the victim’s and weren’t Elmore’s. His answer was the same as for the hair. “The fact that another individual’s prints may be in the victim’s house does not turn this case into something that undermines the confidence of this proceeding.”

Justice Clifton Newman, one of the substitutes, asked about the quality of representation Elmore had received from Geddes Anderson. “Did he challenge any of the state’s witnesses?”

“No, not really,” Zelenka acknowledged.

“You concede the quality of representation that Mr. Elmore received was maybe not the best in the world,” Justice Pleicones said. “Are you willing to go further?” Did he concede that it did not meet the requirements set out by the Supreme Court for what constitutes effective representation of counsel?

“No,” said Zelenka.

“You’re not willing to concede that?”

“No.”

Because the justices had asked so many questions, the chief justice allowed Zelenka a few extra minutes. “But wind it down,” he said. Zelenka finished, Blume was allowed a short reply, the justices rose and left, and the lawyers shook hands and walked out of the courthouse.

Holt, Jensen, and Blume headed to lunch feeling positive. Townes Jones did not. He thought he had lost. Back in Greenwood, he told the public defender to get set to defend Elmore again.

From the defense point of view, it was possible for Holt to be almost giddy about the prospects for a new trial. It was exciting to imagine the police and SLED agents cross-examined by Chris Jensen and a more confident Diana Holt. Barry Scheck would do to Earl Wells what he had done to Dennis Fung, the LAPD criminologist whom Scheck witheringly cross-examined for eight days in the O. J. Simpson trial.

And if Elmore got a new trial, Holt would have a new witness.

The day she put her son on a plane for Iraq, she had returned home and found two messages on her answering machine. They were from a Kay Raborn in Augusta, Georgia. Holt recognized the name—the Raborns had lived on Melrose Terrace, a few doors from Mrs. Edwards; in her search for witnesses over the years, Holt had never been able to locate them. In her message, Mrs. Raborn said that she and her husband had just watched a Court TV show about the Elmore case. They had moved away from Greenwood many years ago and were surprised to learn that Elmore was still alive, that he had not been executed. They could not let him be executed, not knowing what they knew, she said in the voice message. She didn’t give any details but invited Diana to come to Augusta to talk to them.

Holt thought the call might be a setup. Was Townes Jones using the Raborns to find out what she was planning? But she was left with so few options to save Elmore’s life that she drove
to Augusta. When she got there, she learned it was really Mr. Raborn who wanted to talk to her. He had been on the grand jury that had indicted Elmore. After watching the Court TV show and reading more about the case, he was convinced Jones had misled the grand jury. “The grand jury was never told anything about Holloway,” Raborn said. It wasn’t told that Holloway and Mrs. Edwards might have been having an affair. “If a sexual relationship is brought up, you get into motives right there,” he said.

There was another, more powerful reason that Raborn had concluded Elmore was innocent. A year or so after the murder, Raborn had run into Charley Webber at a fraternity reunion. Webber was the SLED agent in Greenwood who had turned up at the crime scene and was told by Jim Coursey that he wasn’t needed. “Charley had already put away a few drinks and beers when we spoke,” Raborn said. “He whispered to me, ‘He didn’t do it.’ I asked him, ‘Who didn’t do what?’ He again whispered, ‘You remember, Black Elmo, he didn’t do it.’ ” (The Greenwood cops often referred to Elmore as “Black Elmo,” which infuriated Holt.) “He didn’t elaborate,” Raborn said. “He just wanted to say it, because it was really bothering him.”

For years, Raborn had kept the conversation to himself. Webber died in 2003. Raborn told Holt he was prepared to testify about what Webber had told him.

The odds against the State of South Carolina retrying the case were great. So many contentious issues would have to be revisited, some to the embarrassment of the South Carolina justice system. In a new trial, a jury would hear about the Caucasian hair found on Mrs. Edwards’s abdomen, the fingerprint on the underside of the toilet, the absence of blood on the sheets, the failure of the police to take photographs of the bed. It was more likely the state would offer Elmore a deal: plead guilty to manslaughter, which is not a capital offense, and he would be released. How tempting that would be, to have Elmore finally out of jail after twenty-two years. The decision would be Elmore’s. But everyone knew he would follow Diana’s advice. Marta Kahn had no doubt Holt should take such a deal.
“In a heartbeat,” she said. She didn’t trust the system anymore; her approach was to take whatever you can to get your client off death row. But how could Diana let Elmore plead guilty to anything when she was convinced he was completely innocent?

T
HE
S
OUTH
C
AROLINA
S
UPREME
C
OURT
took only six weeks to issue its ruling, which was faster than most expected, given the complexity of the issues and the likelihood that there would be several opinions. But there were no opinions. There was only the court’s ruling: “We granted a writ of certiorari to review the denial of Petitioner’s application for post-conviction relief (PCR). After thoroughly reviewing the appendix in this case, we find there is probative evidence supporting the findings of the PCR judge. Accordingly, we dismiss the writ as improvidently granted.”

The court was saying there were no legal issues, that it should not even have agreed to hear the case. It was a puzzling ruling, at best; an unfathomable one to many lawyers.

“Ain’t that some shit,” said David Bruck, abandoning his usual legal erudition. Rauch Wise called it a “crazy decision.” Elmore would be “the only person in the country executed on the basis of evidence now considered perjury,” he added, referring to Gilliam’s trial testimony.