Anatomy of Injustice (15 page)

Burnett asked Elmore if there was anything he wanted to say.

“I’d like to say I did not commit that crime Your Honor said I did,” Elmore said, calmly. Again, it seemed to Reverend Spearman that Elmore simply did not comprehend what was happening.

Burnett asked if there was anything else.

“Yes, sir. I’d like to say I’ll be—no, sir, that’s all.”

Once again, Burnett could barely hear Elmore and asked him to repeat himself. No, “that’s all,” Elmore responded.

“I’m satisfied from this evidence that you, without question, committed this most horrible and inhuman crime,” Judge Burnett told Elmore. “This jury, in my judgment, has been swayed by no passion, no prejudice, nor any other arbitrary factor.”

Again, he asked Elmore if he wanted to say anything before he imposed sentence.

Elmore said he did not.

Judge Burnett spoke: “It is, therefore, the judgment of the land and the sentence of this court that this defendant Edward Lee Elmore, be taken to the county jail of Greenwood and thence to the state penitentiary, henceforth to be kept in close confinement until the twenty-first day of June, 1982, upon which day between the hours of 6:00 a.m. and 6:00 p.m., the defendant Edward Lee Elmore, shall suffer death by electrocution in the manner prescribed by law. Take the defendant.”

Elmore’s mother and three of his sisters broke into sobs as friends led them from the courtroom.

Beasley turned to Anderson as they were walking out of the courthouse. “That damn son of a bitch will live longer than I will,” Beasley said, expressing his contempt for the long appeal process he knew was ahead. That indeed would be the case.

T
WENTY MEN WERE ON
South Carolina’s death row when Edward Lee Elmore arrived in April 1982: thirteen whites, seven blacks. Given this ratio, South Carolina could argue it was not guilty of racism in the application of the death penalty. But all the victims in the cases that put those men on death row were white, save three. This same pattern held in other death penalty states. In Illinois, when the victim was white, it was three times more likely that the defendant would receive the death sentence than if the victim was black. Altogether, across the country, in cases where a person was executed, more than three-quarters of the victims were white.

Elmore’s lawyers appealed to the South Carolina Supreme Court, which appointed a thirty-four-year-old prematurely gray lawyer of quiet brilliance, David Bruck, to represent him. It was Elmore’s first break. “Almost Gandhiesque” was how a South Carolina prosecutor described Bruck to David Stout, author of
Carolina Skeletons
, a fictional account of South Carolina’s execution of George Stinney, the fourteen-year-old put to death after a trial that took only seven hours.

A serene man, Bruck generally maintained a low profile, but he acquired national prominence in 1995 when he represented Susan Smith, the woman who strapped her two small boys into their car seats and then drove her car into a lake. (Dr. Conradi performed the autopsy.) The jury needed only two and a
half hours to find Smith guilty of two counts of murder. During his closing argument in the sentencing phase, Bruck opened a Bible and read from John 8:7: “He that is without sin among you, let him cast the first stone.” She was given life.

When Bruck looked at the death penalty, he saw what the Supreme Court had seen in
Furman:
most of the men on death row were black and poor. The administration of the death penalty was too capricious, too loosely governed, too inconsistently applied. It was, he said, like a fisherman reaching into his bait box and pulling out a worm for his hook.

Bruck’s career was a by-product of the Vietnam War. At Harvard, where he had graduated magna cum laude, he had demonstrated against the war and decided to become a lawyer in order to represent conscientious objectors to the draft and soldiers who refused to go to Vietnam on similar grounds. Accordingly, he chose the University of South Carolina, in Columbia, for law school because it was near Fort Jackson, one of the country’s largest army training bases, where he could combine study with practical work. Then the Vietnam War ended, and he felt himself “beached like a flopping fish by the receding waters of the Vietnam antiwar movement.” Searching, he headed west. In New Mexico, he worked with the Navajo to stop uranium mining at a sacred tribal site. A Canadian by birth, he then set off for Vancouver, where he planned to represent labor unions. While back in Columbia to gather up his books and few possessions, he learned that hundreds of protesters were being prosecuted for a sit-in at the Savannah River bomb-manufacturing site. He agreed to represent some pro bono and took a job in a welding shop while waiting for the trials to begin. One day, during his lunch break, he read a newspaper story about the resentencing trial of two black men who had been convicted of killing a white gas station owner. On appeal, the South Carolina Supreme Court had reversed the death sentence on several grounds. For Bruck, the case underscored the importance of good appellate work in capital cases where the defendant’s lawyer at trial had been ineffective, bordering on incompetent. He went to the state appellate defense office and offered to handle
all the death penalty appeals in exchange for an office and a modest salary. He was extremely effective. Of the fifty or so death row inmates whose cases he would handle, he lost only three.

Elmore’s case was one of his first. He drove to Greenwood and met with Anderson and Beasley. Bruck asked them about the pubic hairs that the SLED agent claimed to have found on the bed and that were said to have a reddish cast. “If that don’t take the cake, a redheaded nigger,” Beasley replied, chuckling. Bruck didn’t find it funny. Beasley would later say he didn’t recall making that remark; he didn’t even remember ever meeting Bruck.

In the South Carolina Supreme Court, Bruck argued that Judge Burnett had erred in allowing Joseph Chalmers to sit on the jury, because his daughter was a close friend of Solicitor Jones’s daughter, and in excluding Augustus Covington because of his opposition to the death penalty. The court disagreed. The trial judge has wide latitude in deciding who may sit on the jury, it said, and his discretion would not be overturned without a showing that it was totally unsupported by the evidence.

The court was disturbed, however, by how Judge Burnett handled the situation when at least one juror was holding out against the death penalty. His reminder to the jurors that during voir dire, each of them had said under oath that whatever their personal views might be, they could impose the death penalty if the facts warranted it was improper, the court said, because it was directed solely at those jurors who were voting against the death penalty while implicitly approving the decision of those jurors who were voting for it. Judge Burnett had “effectively urged agreement at all cost, rather than reminding the jurors of their right to retain conscientiously held views,” the court said.

Elmore had a new trial.

I
N
M
ARCH
1984, the State of South Carolina tried Elmore again. It did so in the same courthouse, with the same prosecutor, William T. Jones, again assisted by his daughter Selma.
There was a new judge, however—James E. Moore, a gregarious Greenwood native who had been student body president at Greenwood High in his senior year, an accomplishment he considered so significant that forty years later, when he was a justice on the South Carolina Supreme Court, he was still citing it on his résumé.

When Elmore’s conviction was overturned and it was announced that he’d get a new trial, a juror from the first trial, Elizabeth Hackett, thought now “they’d give him a good lawyer.” But Judge Moore assigned Elmore the same lawyers, Anderson and Beasley.

In a rare display of assertiveness, Elmore told Judge Moore he wanted “Mr.
Brooks
” to represent him. “I think it would be in my best interest to have some new attorneys,” he told the court.

Judge Moore didn’t agree. Anderson and Beasley were experienced attorneys who had handled many trials, he told Elmore. “The court is of the opinion that you are represented by two competent attorneys.”

Elmore asked if he could at least have some time to get in contact with Mr. Bruck.

Moore was in no mood to delay. “The case, Mr. Elmore, is scheduled for trial to begin on Monday,” he said. “Mr. Anderson and Mr. Beasley are your attorneys.”

This trial was like watching a video replay of the first one. Jury selection took just over two days, as it had the first time. The entire trial lasted eight days, as had the first one. The state’s witnesses were the same—police, SLED agents, Conradi, the neighbor Holloway, and the jailhouse informant, Gilliam. Again, Anderson and Beasley put forward no case, and told Elmore to testify.

Again, when it was Jones’s time for cross-examination, he tore into Elmore. The pummeling had just begun when Elmore turned toward Judge Moore and asked if he could speak to him. He spoke so softly that the court reporter couldn’t hear.

“For the record, gentlemen,” Judge Moore said, speaking to the lawyers, “the defendant requested that he be allowed to
speak to me about his nerves being bad; and I’ve told him that if he desires to make any such statement, it should be part of the record and not off the record.”

He turned to Elmore. “You were attempting to tell the court that your nerves are bad. Do you wish to tell me anything further about that?”

“No, sir. I’m not going to say anything.”

Jones was fed up. “He’s guilty,” the solicitor shouted.

Elmore timidly asked if he could talk to his attorneys. No, said Judge Moore. When a witness is being cross-examined, he cannot talk to his lawyers about his testimony.

“I ain’t going to talk about testimony,” Elmore said.

Moore was puzzled. “About your being nervous? Is that what you want to talk about?”

“Right. Well, yes.” He was embarrassed, humiliated, and awkwardly tried to explain. “You know, I been talking about—you know my nerves and all. You know, went to the bathroom.”

Edward Lee Elmore, twenty-five years old, had wet his pants.

It took the jury of eight whites and four blacks two and a half hours to find him guilty, exactly the amount of time it had taken the first jury. It took them three and half hours to sentence him to death, beating the first jury by an hour.

Execution was set for June 22, 1984, two years and one day after he was first supposed to be executed.

T
HE CASE WENT BACK
to the South Carolina Supreme Court. The state fared better this time. During the sentencing phase of the trial, Anderson had wanted to call three prison guards as witnesses. They would testify that Elmore had been a model prisoner, had not caused any problems, and could be rehabilitated. Jones had objected, and Judge Moore kept the testimony out. The South Carolina Supreme Court said that the testimony should have been allowed. But because Elmore’s mother and four sisters had testified to his good character, it was a “harmless error,” the court said. The “harmless error” doctrine, which is the law by statute or high court rulings in all states, stipulates that not all errors during a trial are reversible. Appellants must
show that but for the error, the outcome of the trial would likely have been different.

“Mrs. Edwards was savagely attacked and brutally raped,” the South Carolina Supreme Court concluded in a two-page opinion.

As his lawyers started the appeals through the federal courts, Elmore was back in prison. He was nervous around other prisoners and would often go days without being able to sleep. He was diagnosed by a prison psychiatrist with acute anxiety and mild depression, and was medicated with Sinequan and Inderal. He was allowed an hour a day for recreation five days a week, a shower five days a week, one visitor a week, and church on Sundays. Fellow inmates affectionately nicknamed him “Brown Bear,” from the little animals Elmore made from the arts-and-crafts supplies given to prisoners. He was no trouble for the guards. “Mr. Elmore was always very polite,” Calvin Claypoole, deputy warden at the Central Correctional Institution, said. “I see him in the morning, ‘Good morning, Mr. Claypoole, how are you this morning?’ In the afternoon, it was the same type of greeting. With the behavior of some of the others, the greetings were much more hostile, if you will.” Some death row inmates, he said, “in order to get your attention there’s spit in your face, there’s human waste in your face, there’s flooding of cells, setting of fires.” Elmore had never done anything like that.

It was just the kind of testimony that Judge Moore had not allowed. Even if Claypoole and prison officials had testified, however, it is unlikely the jury would have been persuaded to spare Elmore’s life. His fate seemed sealed. But David Bruck was still representing Elmore in his appeals, and Elmore’s case was part of a grand legal strategy. It wasn’t by chance that Anderson had sought to introduce testimony about Elmore’s good behavior in prison. Bruck had recognized that the U.S. Supreme Court, while unwilling to abolish the death penalty outright, was circumscribing the instances in which it could be imposed and ensuring that defendants found guilty had every opportunity to present evidence in mitigation. Bruck became
convinced that eventually the court would say that evidence about a defendant’s adaptability to prison—shown by his good behavior there—was a mitigating factor. Thus, he had sent memos to every lawyer handling a capital case to make sure they offered such evidence; it would be excluded, as he knew, but that would provide the basis for an appeal. He was right.

In 1986, the case of another of Bruck’s clients, Ronald Skipper, was before the United States Supreme Court. He had been convicted of murder and rape. During the sentencing phase of his trial, his lawyer, following Bruck’s advice, had sought to introduce testimony of two jailers who would say that during Skipper’s pretrial confinement he had been well-behaved and had adjusted to prison life; therefore, the lawyer argued, he would not be a threat to other prisoners if he was sentenced to life in prison, as opposed to execution. The trial judge had not allowed the testimony, and the South Carolina Supreme Court upheld his decision. The United States Supreme Court reversed it. All relevant mitigating evidence must be considered by the jury, including testimony of the prisoner’s good behavior in jail, the Supreme Court said.