Anatomy of Injustice (37 page)

Maybe the explanation was that supreme court justices couldn’t find there were constitutional errors when two of their colleagues had handled two of the trials.

Holt called Elmore immediately. She did not want him to hear the news on the TV or radio, or worse, from a prison guard. How do you start a conversation like this? she worried as she placed the call. She said she was sorry and tried to explain that not only had the South Carolina Supreme Court refused to give him a new trial, but it had simply dismissed his appeal. It was clear Elmore didn’t know what it all meant. You’re not the only one, Holt said to herself. She hung up, emotionally distraught.

A few minutes later the phone rang. It was Elmore. He said he hadn’t understood her before because he’d been asleep when
she called and was groggy. Diana knew it was his way of trying to conceal his intellectual limitations. She again tried to explain. He was dejected, but he said he knew she had done her best for him, he knew she cared about him.

A few days later, Elmore wrote to his sister, in block letters.

Holt filed a petition for rehearing with the South Carolina Supreme Court, a routine step. But being Holt, she added a twist. She wanted DNA testing of the hair the state had said it found on the bed, and of the blood on the shoes and on the blue jeans.

“It is inconceivable that the respondent would object to definitive DNA testing,” she added. “What is the State afraid of?” She knew the answer, of course.

Predictably, Zelenka opposed it. Elmore’s lawyers should have made these requests earlier, at the PCR, Zelenka argued. His brief was short, only three pages. At the bottom of page 3, he wrote, “For this reason, the Petition must be denied.”

Before Holt could cry or curse, she turned to the next page. At its top in bold letters, she read:

“SLED will complete testing on the hairs recovered from the victim’s bed, the traces of blood found on blue jeans, and the defendant’s shoes.”

Holt was taken aback. The state was refusing to agree to a rehearing but was agreeing to conduct the DNA testing, which was precisely what she sought in the petition for a rehearing. She wasn’t surprised when the supreme court denied a rehearing. It said nothing about her request for DNA testing.

Elmore’s execution was set: October 15, 2004, at 6:00 p.m.

F
OLLOWING THE DECISION
by the South Carolina Supreme Court, prison authorities put Edward Lee Elmore in “lockdown,” a kind of administrative segregation that death row inmates are placed under thirty days before execution. His cell had a heavy metal door, with only a small window, and the shutter was closed most of the time. He was allowed out for just an hour a day and then was kept in full chains. This was especially hard on Elmore, who suffered from mild claustrophobia. Diana wanted him back in his cell on death row.

Two days after the supreme court’s adverse ruling, Holt jumped into her Volvo, sped downtown, and walked briskly into the sixteen-story Strom Thurmond Federal Building on Assembly Street. Designed by the firm of Marcel Breuer, the sixteen-story building has a stark concrete exterior and deeply recessed windows. Holt went to the office for the federal district court and handed the clerk a motion for a stay of execution. She took a seat, “in tears, sweating bullets.” Cases are assigned to federal judges randomly; Holt was nervous about whom she would draw. As the tears welled, she watched the clock—2:40, 2:45, the minutes ticked by. At 3:00 p.m. the clerk informed her the case had been assigned to Judge David C. Norton. George H. W. Bush had appointed Norton to the bench in 1990, on the recommendation of Senator Strom Thurmond, one of the most
conservative members of the Senate. Prosecutors liked him. One gave him a 9.7 rating out of a possible 10 on The Robing Room, a website where lawyers evaluate federal judges. “Judge Norton is a fantastic judge and a true gentleman,” the prosecutor wrote. “South Carolina is lucky to have him.” Holt happened to agree. He had granted a stay in an earlier case she had had before him, and her spirits were buoyed by the draw.

Thirteen days after she’d filed for the stay, Norton granted it. Elmore was back with the general death row population, and Holt had another chance to save his life.

She turned to the DNA testing. Zelenka had said he would do it voluntarily. Holt was having none of that. She wanted court supervision—Judge Norton, to be precise. Holt and Jensen requested a status conference, which is a meeting of the lawyers with the judge to discuss procedural matters in a case. On the afternoon of December 7, 2004, they arrived at the federal courthouse in Charleston, where Norton sat. The gray granite building is on the corner of Broad and Meeting Streets, on the site of what had been a gallows for public executions during British colonial days.

“Okay, Ms. Holt, just like Toyota, you asked for it, you got it,” Judge Norton opened the proceedings good-naturedly. “Mr. Jensen, welcome,” he said. It was as informal as a hearing in a federal court could be. “Sit, stand right there, or come up here, whatever you want,” Norton said to Jensen.

Jensen explained that he and Holt wanted the court to oversee the DNA testing. Jensen assured Norton that he didn’t anticipate any problems, but if there were—such as what would be tested, by whom, using what tests—they wanted to be able to come back to Judge Norton.

Zelenka listened to the exchange between Norton and Jensen, feeling more like a spectator than a participant. “I am not sure I am in this setting,” he said lightly when it was his turn to speak. He argued that there was no need for Judge Norton to get involved; a state court could supervise. “I thought it would be more expeditious to go through Greenwood,” he explained. Holt was shaking her head.

“I’m pretty expeditious,” Norton said, smiling. As a legal matter, he added, he wasn’t sure if a Greenwood judge still had jurisdiction over the case now that it had moved into federal court.

“He has control over the stuff that was involved in the case,” Zelenka said.

“I have control over the whole thing,” Norton countered.

Holt was amazed and bemused. It was as if Norton were saying “My army is bigger than yours.” She smiled.

Zelenka said that the state would test a sample of the hairs found on the bed. Holt’s head jerked in disbelief. She wanted them all tested. She wasn’t about to gamble that the hairs the state chose to test just happened to be Elmore’s while others in the bag might belong to someone else.

After thirty minutes, both sides said they had nothing more. “Happy holiday,” Judge Norton wished everyone.

Holt rose. She had one more thing to say: “Mr. Elmore asked me to thank you for granting his stay of execution.” Spectators and court personnel smiled. They weren’t accustomed to hearing such a personal sentiment from a lawyer in behalf of her client.

“Well, you’re welcome,” Judge Norton said.

Holt walked out of the courtroom, spirits soaring. Courts usually split the decisions or give the state everything. Here, she was getting everything she wanted. “I wanted to kiss the hem of his robe,” she said, and then enjoy “this piece of justice, however small it is.”

She soon had another reason to celebrate. “PVT. Holt and the mighty 2–5 Cav made it safely to Kuwait, which means they are almost HOME!” she wrote in a March 2005 e-mail to the families of the men in A Company, 115th Battalion of the Second Regiment of the Fifth Cavalry Division. “Apparently I had muscles clenched that I didn’t even know I owned. We can all exhale now!”

D
IANA WAS FILLED
with joy that her son had survived Iraq when she got a call from a very worried Elmore. “Am I next?” he asked. She didn’t know what he was talking about. He explained
that Richard Longworth had been executed the previous evening. It was the thirty-third execution since Elmore had arrived on death row, but this one hit harder because Longworth was especially popular. He had been on death row for fourteen years; Elmore had just completed his twenty-third year. He had recently been taken to the hospital with a bad case of emphysema; after ten days, he was returned to his cell with two inhalers and an oxygen tank. Diana assured Elmore that no execution date had been set.

Holt filed for a writ of habeas corpus with Judge Norton on July 5, 2005. It was the beginning of the process that would have the federal courts address whether Elmore had been denied his constitutional rights. Much of the brief was written by Marta Kahn. After what Diana considered to be the South Carolina Supreme Court’s inexplicable ruling against Elmore, Holt was distraught and generally exhausted. She asked Marta if she’d like to help with the case. Not yet forty, Marta had given up full-time work as a death penalty lawyer. In just two and a half years in Virginia, twenty-five men were executed. When she got married and had a child, she had stepped away from death penalty representation—it took too much out of her, physically and emotionally. The rage and anger she felt toward the system were not things she wanted to be carrying around while she was raising a child. But she remained deeply committed to fighting what she saw as injustice, and Elmore’s case exemplified that as much as any she’d seen. Marta was a law lawyer, and her brief was a brilliant exposition of the constitutional issues. They were basically the same ones that had been presented to the South Carolina Supreme Court—ineffective assistance of counsel, prosecutorial misconduct, exclusion of blacks from the jury.

But there was one new claim as well: that Elmore was mentally retarded, and therefore his execution was barred in light of the recent Supreme Court ruling (in
Atkins v. Virginia
). This claim was buried three pages from the end of the forty-nine-page legal brief. At this point, Diana had all but given up on getting Elmore justice, which would mean complete exoneration for a crime she didn’t believe he committed. She just wanted to
keep him from being executed. A finding that he was mentally retarded would do that.

For years, opponents of the death penalty, unable to persuade the Supreme Court to abolish capital punishment altogether, sought to limit its use by expanding the categories of individuals whom the state could not execute. One exemption they sought was for the mentally retarded.

The issue of a criminal defendant’s mental state is widely misunderstood, and mental retardation is often confused with insanity. “We should never execute the mentally retarded,” President George W. Bush said in 2001, when the issue was being hotly debated. He added, “And our court system protects people who don’t understand the nature of the crime they’ve committed nor the punishment they are about to receive.”

But in this latter statement, Bush was talking about a person who is legally insane. Standards have changed over time and are not identical in every state, but the general test for insanity is whether the defendant was able to distinguish right from wrong at the time of the crime. Paranoid schizophrenia and severe psychosis rob the individual of the ability to know right from wrong. Most mentally retarded people are not insane, and vice versa. John W. Hinckley Jr., who shot President Reagan in 1981, was found not guilty by reason of insanity. He was not mentally retarded. Indeed, his IQ was 113.

In 1989, the court addressed the issue of executing the mentally retarded in the case of John Paul Penry. He had raped and stabbed to death—with a scissors—a twenty-two-year-old woman, Pamela Moseley Carpenter. His IQ was 60, and he had the functioning capacity of a seven-year-old; on death row, he spent his days coloring with crayons and looking at comic books he couldn’t read. The State of Texas did not accept that he was retarded. He was a “sociopath,” said a prosecutor in the case, and had been sent to schools for the mentally retarded because he was “an uncontrollable child.” In a landmark decision,
Penry v. Lynaugh
, the Supreme Court reversed Penry’s conviction on the grounds that the judge had failed to instruct the jury that it could consider his mental capacity as a factor in the sentencing.
But the court held that it was not a violation of the Eighth Amendment ban on cruel and unusual punishment to execute someone who was mentally retarded. There was not a national consensus against doing so, the court said. At the time, of the thirty-eight capital punishment states, all but two permitted the execution of a person who was mentally retarded. Justice O’Connor wrote the majority opinion.

Thirteen years later, the issue was before the court again, in
Atkins v. Virginia
. Twenty-one death penalty states now banned executing an individual who was mentally retarded. Finding a “changing national consensus,” the court overturned
Penry
. The execution of someone who was mentally retarded was proscribed by the Eighth Amendment, the court ruled in a 6–3 decision. Justice O’Connor, persuaded by the trend among the states, joined the majority. The court’s conservative justices—Scalia, Thomas, and Rehnquist—disagreed. “The arrogance of this assumption of power takes one’s breath away,” Scalia wrote. The court was engaged in “incremental abolition” of the death penalty, he wrote (which was, of course, just what opponents of the death penalty wanted).

The Supreme Court left it up to the states to decide how to implement its decision, both for defendants in future capital cases and for men on death row, such as Elmore.

Holt raised Elmore’s
Atkins
claim with a motion for another post-conviction review, which she filed in September 2005. The state’s response was simple: too late. Under South Carolina law, legal claims in criminal cases have to be raised within one year after they become available. Since
Atkins
was decided in June 2002, that made the deadline for Elmore’s lawyers June 2003. “Simply put,” Zelenka said, the failure of Elmore’s lawyers to file their mental retardation claim by June 20, 2003, required the court to deny their request.