Anatomy of Injustice (7 page)

For Brennan, a punishment was cruel and unusual “if it does not comport with human dignity.” And putting someone to death, he wrote, was “fatally offensive to human dignity.” The words “human dignity” appear nowhere in the Constitution, and may have sprung from Brennan’s Roman Catholic faith.

William O. Douglas was the court’s most liberal justice—“the most doctrinaire and committed civil libertarian ever to sit on the court,”
Time
magazine wrote in 1975—but he was not willing to go as far as Brennan and Marshall. In his view, it was
the arbitrary and capricious manner in which the death penalty was being carried out by the states that rendered it unconstitutional. “One searches our chronicles in vain for the execution of any member of the affluent strata of our society,” Douglas wrote. Justice Douglas noted the race, background, and mental faculties of Furman, Branch, and Jackson and, more broadly, that a disproportionate number of blacks, poor, young, and uneducated people, were sent to their deaths.

Justice Potter Stewart saw other evidence of the arbitrary nature of the administration of the death penalty: for the same crime, one person might be executed while ten others were sentenced to life in prison. In an opinion only ten paragraphs long, Stewart said that a death sentence was cruel and unusual “in the same way that being struck by lightning is cruel and unusual.”

Among the dissenters was Justice Harry Blackmun. “I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty,” he began. “Were I a legislator,” he went on, “I would vote against the death penalty.” But he was a justice and this was a court, and he could find nothing in history or law or earlier court decisions to justify overturning the death penalty.

The court’s decision in
Furman
overturned the death penalty in the forty states where it could be applied and in the District of Columbia as well as for the federal government; across the country some six hundred death row inmates had their lives spared, more than half of them African American. Opponents of capital punishment rejoiced. Prematurely. While the court said the death penalty was unconstitutional as it was being administered, the justices (except for Brennan and Marshall) left open the possibility that capital punishment could be administered in ways that were constitutional.

Death penalty proponents went to work. In California, a ballot initiative to reinstate the death penalty, which was backed by Governor Ronald Reagan, was approved by nearly two to one. Within five months after
Furman
, the Florida legislature had enacted a new death penalty law, and other legislatures quickly followed. The new laws varied from state to state, but in general
they limited the death penalty to aggravated murder, rape, and kidnapping; provided for bifurcated trials—first on the question of guilt or innocence, and if the defendant was found guilty, a second phase on the question of sentence—and placed requirements on judges and juries before they could impose it.

The Supreme Court spoke again in 1976, in
Gregg v. Georgia
and companion cases from Texas, Louisiana, North Carolina, and Florida. The new capital punishment laws were upheld. Eventually, when the pro–death penalty legislators and lawyers were finished, the capital punishment map looked a lot like it did pre-
Furman:
executions were permitted in thirty-eight states, primarily in the South and West, and by the federal government.

The first person executed after
Furman
and
Gregg
was Gary Gilmore, who killed a gas station attendant one day and a motel clerk the next. Gilmore, who had spent most of his life in prison or on the run, wanted to die; he did not want his lawyers to seek a stay from the Supreme Court. He was shot by a five-man firing squad in Utah in 1977. The case drew international attention, and Gilmore’s life was portrayed in a landmark book by Norman Mailer,
The Executioner’s Song
. The death penalty was back. What has become known as the modern era of the death penalty had begun.

B
EFORE
J
ONES COULD
proceed to trial against Elmore, he had to seek an indictment from a grand jury. The grand jury requirement is rooted in English common law and was enshrined in the Magna Carta as a check on the king’s power. In the American colonies, grand juries continued to serve as a check on royal powers by refusing to indict individuals who refused to pay taxes and duties imposed by Britain. The Founding Fathers understandably preserved the grand jury. The Fifth Amendment provides that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury.…” The grand jury is no longer used in Britain, and the Fifth Amendment grand jury requirement has not been extended by the Supreme Court to the states (though other provisions of the amendment have been). By their own laws, most states require a grand jury in serious cases. Proceedings are in secret, and neither the defendant nor his lawyer is present. It is also debatable how effective the grand jury is as a shield against abuse of authority. “A competent prosecutor can get a grand jury to indict a ham sandwich,” a New York judge once said. (Prosecutors also use the grand jury as an investigative tool, subpoenaing witnesses to help them solve a crime or to find enough evidence to indict an individual. They are often used this way in cases involving organized crime or terrorism.)

A few months before asking the grand jury to indict Elmore, Jones had brought the same panel the case of a prominent member of the community, a white man, who had shot and killed a black man walking across his property at night. In the secrecy of the grand jury room, Jones made it clear that he did not think an indictment was appropriate. The accused was an upstanding member of the community, Jones said, and he asked the grand jurors what they would have done if they had seen a black man on their property in the dark. Wouldn’t they have picked up a shotgun? he said to the jurors. The grand jury declined to indict.

Jones didn’t present much evidence in the Elmore case—the testimony of a couple of police officers and the gruesome photographs of Mrs. Edwards stuffed in the closet. It took less than twenty minutes. “It was bim, bam, thank you ma’am,” recalled Barry Raborn, at thirty-six the youngest member of the all-white grand jury. Raborn told Jones he didn’t think he should be serving; he had grown up three doors from Mrs. Edwards—a remarkably attractive lady, he thought—and his father had been a pallbearer at her funeral. He had gone to high school with two of the police officers in the case. Nevertheless, Jones kept him. Raborn abstained from voting for or against an indictment; years later, he would conclude that he had been wrong not to oppose it. It wouldn’t have made much difference, except to his conscience.

In addition to murder, the grand jury handed up an indictment for criminal sexual conduct, burglary, housebreaking, armed robbery, and larceny.

There was never any doubt the jury would indict. Greenwood grand juries always did what Jones wanted, followed him like sheep, said Raborn. “If he said it was dark outside in the middle of the afternoon, they’d say, ‘You’re right.’ ”

W
ILLIAM
T
OWNES
J
ONES
III was a Greenwood institution—renowned, powerful, and feared. “He was the sort of person for whom the cliché about taking up all the air in the room could have been invented,” said a lawyer who knew him. He was about five eight or five nine, of average build. He prided himself on being physically tough and had a firm handshake. Vain about his age, a dapper dresser in a conservative, old-fashioned way—he wore a fedora long after they had gone out of style—Jones was charismatic. At the same time, he appeared to be openly needy, a man who seemed to suffer in front of your eyes. He was born into the landed gentry, in the quaint-sounding Ware Shoals, just up the road from Greenwood. His father had lost the land to drink and the Depression, but by dint of his smarts (Phi Beta Kappa at the University of South Carolina), street savvy, and intensity of will, young Jones had risen. He had a ferocious temper and a reputation as a bit of a bully; no one crossed “Willy T.,” as just about everyone called him—though never when he was within earshot. “If he was on your side, you had a friend; if not, you had an enemy,” residents said. When Domino’s Pizza opened in Greenwood, the phone company gave it the number 229–1111. Jones’s law office number was 223–1111. He was soon getting calls for pizza delivery. Annoyed, he demanded that the phone company change Domino’s number. Domino’s resisted. Jones prevailed.

For years, being county prosecutor was a part-time job in South Carolina, and in his private practice Jones hired talented young law graduates and taught them the practical aspects of the craft. Ron Motley, one of the nation’s premier trial lawyers,
who earned his name—and millions—suing asbestos and tobacco companies and years later would represent some of the relatives of the victims of the 9/11 attacks, got his start with Jones. Jones was a “blue dog” Democrat, and at the 1972 Democratic National Convention in New York he met a young southerner who had just finished Yale Law School. He had been so impressed by the recent graduate that he offered him a job. Bill Clinton declined, saying he had decided to go back to Arkansas and enter politics.

Jones was elected solicitor, as South Carolina calls its prosecutors, in 1952 and reelected every four years until he retired in 1984 and was succeeded by his son Townes.

I
N THE ADVERSARIAL
American criminal justice system, Jones would square off with Elmore’s lawyers, with the judge sitting as impartial referee and the jury deciding who won, as it were. It is sometimes called “trial by combat.” But for the prosecution, for the state, winning is not synonymous with a conviction, or at least it is not supposed to be. The state’s interest “in a criminal prosecution is not that it shall win a case, but that justice shall be done,” Justice George Sutherland wrote in 1935 for a unanimous Supreme Court in
Berger v. United States
. The court overturned a conspiracy conviction in part on the grounds that the prosecutor had exceeded permissible bounds in his cross-examination. The prosecutor should “prosecute with earnestness and vigor,” observed Sutherland, a conservative Republican from Utah. “But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

Thirty-two years later, in 1967, Justice Byron White expressed the same view. “Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent,” he wrote in
United States v. Wade
. Though appointed by President Kennedy, White was not a liberal on the court and
tended to side with the prosecution over the defense. He had, for instance, dissented a year earlier in
Miranda
.

The American Bar Association sets the standards and ethical codes for lawyers. “The duty of the prosecutor is to seek justice, not merely to convict,” says the ABA’s Criminal Justice Standards. It elaborates: “Although the prosecutor operates within the adversary system, it is fundamental that the prosecutor’s obligation is to protect the innocent as well as to convict the guilty, to guard the rights of the accused as well as to enforce the rights of the public.”

At the time Jones was chief prosecutor in Greenwood, his counterpart in Los Angeles, Stephen Trott, was teaching young deputies what this ethical obligation meant. When one of them would come to him and say he was facing an ethical problem because he had discovered evidence that would help the defense, and if he turned it over, the state would lose, Trott would say, “That’s not an ethical problem. The ethical answer is easy. Turn it over.” Or a deputy would inform his boss that he’d concluded his star witness was lying. Trott, who would go on to serve as assistant attorney general in the criminal division of the Justice Department during the Reagan administration and as a judge on the Ninth Circuit Court of Appeals, would say, “You don’t have an ethical problem. You don’t have a case. Dismiss it.” That’s the pinnacle of a prosecutor adhering to his ethical duty. “I wonder how many of today’s senior prosecutors tell their juniors stories like that one,” said Mark Kleiman, who had worked for Trott.

Apparently, not Jones. After Mrs. Edwards’s fingerprints had been taken at SLED headquarters and the hairs found on her body during the autopsy had been examined, the evidence against Elmore was weak at best, and the evidence was stronger that another, unknown, person may have committed the murder. But the police stopped their investigation once they had arrested Elmore, and Jones, far from dismissing the case, proceeded to trial.

J
USTICE DELAYED IS JUSTICE DENIED
” goes the popular legal maxim, which is traced back to the Magna Carta. But speedy justice can be injustice, too. In Elmore’s case, everyone seemed to be in a hurry. Generally, the time between a murder and the opening of a trial is at least a year, and often several. The state has to find evidence, as well as locate and interview witnesses. The defense, lacking the police resources of the state, has an even more difficult and time-consuming job.

But only eighty-four days after Mrs. Edwards’s body was found,
The State of South Carolina v. Edward Lee Elmore
opened, on Monday, April 12, 1982, the day after Easter. It was reported on the front page of
The Index-Journal
, but foreign news dominated that day. “Strikes, Arab rioting sweep West Bank” was the six-column headline over a story out of Jerusalem. Beneath that was a story about the war between the United Kingdom and Argentina over the Falkland Islands. In Washington, D.C., John W. Hinckley Jr. was about to go on trial for the attempted assassination of Ronald Reagan. On the West Coast, Mount Saint Helens went quiet after an eruption that had begun three weeks earlier.