Anatomy of Injustice (32 page)

“It’s not me,” Elmore said softly. He told her to go ahead.

H
OLT SEEMED TO SPECIALIZE
in innocence cases, that is, cases in which the man on death row is factually innocent, not just “technically” or “legally” innocent because of constitutional errors during his trial. There aren’t many. Most death row inmates committed the crime, even if they shouldn’t be executed.

Opponents of the death penalty make much of the number of death row inmates who have been exonerated. But “exonerated” does not mean “innocent.” In most cases in which an appellate court sets aside a death sentence, the “exonerated” person committed the crime, but he cannot be executed for any one of several legal reasons: he was denied the effective assistance of counsel as guaranteed by the Sixth Amendment; blacks were improperly excluded from the jury; he is mentally retarded; the jury was improperly instructed; the judge excluded evidence that might have caused jurors to spare the man’s life. These individuals are sometimes said to be “legally innocent.” The Elmore case was in a lull in October 1999, awaiting DNA testing, when John Blume handed Diana another seemingly impossible case of a man with a claim of factual innocence.

Richard Charles Johnson was scheduled to be executed in thirty days for the murder of a state trooper. Johnson was a twenty-three-year-old knockabout who had hooked up with a fifty-two-year-old real estate developer from suburban Washington,
D.C., Daniel Swanson. Swanson was heading to Florida in his RV when he met Johnson at a restaurant in Morehead City, North Carolina, and invited him along. Inside the RV, Johnson found stacks of X-rated movies and porn magazines. Crossing into South Carolina, they picked up Curtis Harbert, twenty years old and on the run from criminal charges, who was hitchhiking around the country with Connie Sue Hess, a seventeen-year-old from Nebraska who had been institutionalized twice and was into drugs and sex with truckers. The foursome piled into the motor home, and soon Harbert, Hess, and Swanson were in bed, and Swanson was shot in the back of the head with a .357 pistol. The RV continued south, Johnson driving. He was wiped out on drugs and booze, and the RV was weaving all over the road, bouncing off guardrails. Hess was rubbing her breasts on the window at passing truckers. A trucker alerted a state trooper, who turned on his revolving light and siren and pulled them over. When the officer, Bruce Smalls, approached the RV, the door opened and he was shot with a .38-caliber pistol, shoved onto the shoulder of the highway, and shot again. Johnson fled in one direction, Harbert and Hess in another. All were quickly caught.

The state tried only Johnson. The prosecution had no physical evidence implicating Johnson—there was no gunpowder residue on his hands—but Harbert was willing to testify against him. Johnson was convicted and sentenced to death. Three days later, the state dropped all charges against Harbert and Hess. Johnson’s conviction was overturned on appeal, the state tried him again and won a conviction, and he was sentenced to death once more.

With Johnson’s execution imminent, Holt managed to locate Connie Hess, in Norfolk, Nebraska, at a facility designed to help individuals recovering from mental illness reintegrate into the community. She told Holt about the hitchhiking, the drugs, and the sex in the bed. Harbert had killed Swanson, she told Holt. When Officer Smalls knocked on the RV door, she had grabbed a gun and handed it to Harbert, who shot Smalls. Then Hess had taken the gun from Harbert. Smalls was slouched
in the doorway of the RV, and she kicked him to the ground. “There you go, bastard,” she had shouted, firing more shots into him. Holt had Hess’s statement notarized and headed back to Columbia.

A few days before Johnson was to be executed, Blume asked the South Carolina Supreme Court for a stay, on the basis of Hess’s statement to Holt that Johnson had not killed the trooper. The last time the court had issued a stay had been so long ago that no one could remember. Less than twenty-four hours before Johnson was to be strapped to the gurney, the court granted the stay, and it ordered an investigation into the case. The state was not happy. SLED and the attorney general’s office set out to destroy Holt.

Holt had an incident in her past that made her vulnerable. Her closest friends didn’t know, save her husband and Marta Kahn. Her boys, who were teenagers now, didn’t even know.

It had happened back in 1975, when she was seventeen, in the wake of her mother’s lurid divorce from Walter Belshaw and her mother’s recriminations that followed. Diana was feeling lost, abandoned, and unloved. One night, she and a friend went to Papa Feel Good, a Houston club. They made friends with a threesome—Jennifer Wiley, seventeen; her boyfriend, Richard Morrison, who was in his late twenties; and Harold Brown, nineteen. The next day, the three showed up at Diana’s apartment with a cache of jewelry and money. They had broken into somebody’s home, they said. The four set off for New Orleans.

After three days of partying, Diana got homesick. Her new friends were not sympathetic. If she wanted money to go home, she would have to get the money somehow. She put on her schoolgirl dress, went to the French Quarter, took a seat at an outside table, and ordered a Tom Collins. An older guy was sitting a few tables away. She began flirting with him. The man introduced himself as Sandy Blades. They walked to his car. Just as he was getting into the driver’s seat, Harold Brown came up and pointed a gun at Blades. Blades started to reach under his seat. He was a U.S. marshal and had a .9 mm pistol. Brown reacted quickly, sticking the barrel of his pistol at Blades’s
temple. Blades surrendered his gun, along with $61. Harold and Diana were caught before they had gone two blocks.

Holt pleaded guilty to armed robbery. She was sentenced to five years; with good behavior, she’d be out in “two years, eight months, twenty-one days,” numbers she could recite years later. She was sent to the Louisiana Correctional Institute for Women, in St. Gabriel, prisoner 80367, another number etched into her psyche. She was assigned to work in the kitchen. She cut herself a lot. It wasn’t suicidal. She was just numb; it was a way to feel something.

Those photography courses she had taken and excelled in at Houston Technical Institute now served her well. She was assigned to take mug shots of incoming inmates. The photo lab was next to the law library. Ellen Flood, who was serving a life sentence for killing her husband with arsenic, was in charge. She befriended Diana and persuaded the warden to let her work in the library.

Diana was beginning to develop an interest in the law, an instinct that had lain dormant since the sixth grade. She and Ellen became the prison’s de facto legal aid office.

Donna Lee Peck Aucoin, convicted of robbery, came to them for help. Aucoin was retarded, possibly suffering from Down syndrome. How could she be held accountable for what she did? Diana thought. Why was she not in a mental institution? Diana wanted Aucoin’s file. Displaying the boldness that would become her signature, she wrote directly to the judge (with a few spelling errors):

It was an impressive document for a seventeen-year-old without a high school education.

In another case, on behalf of an inmate who was serving two consecutive sentences, Diana wrote the judge that the sentences should run concurrently. The judge agreed. It gave Diana a good feeling that she could make a difference.

Diana matured, got off drugs, and learned a lot in prison. She met the types most lawyers never meet, except as clients. She developed empathy. She realized how close she had come to going over the edge. A tall blond with hair to her waist, Catherine “Kitty” Dodds, drove the lesson home. Arrogant and mean as hell, Dodds had been convicted of hiring two teenagers to kill her husband, a New Orleans police officer. She was first sentenced to die, before her punishment was commuted to life. That could too easily be me, Diana understood. (Dodds later acquired international renown. After escaping from prison, she settled in a small town in Missouri, adopting a new name and life, until she was caught by the FBI and sent back to prison. She was released in 1992 and became the subject of a television movie, in which she was portrayed as a battered woman and victim.)

Prison officials liked Diana. They believed in rehabilitation, and Diana was their prize exhibit. They sent her to speak to sociology and criminology classes at Louisiana State University. She was a good public face—blond, blue-eyed, more educated than most, young and soft-looking. In her photo for the Louisiana Governor’s Conference on Women in 1976, she had long hair and was wearing a low-cut dress and a white necklace—she could have been mistaken for a fun-loving coed.

Diana’s mother retained a young lawyer fresh out of LSU, paying him $500 to get her daughter a pardon. The prison warden, who was fond of Diana, told her she would be better off appearing before the board with her mother and family friends, rather than being represented by a slick lawyer. Diana and her mother dismissed the lawyer, but it didn’t hurt his career: C. James Carville Jr. went on to politics and fame.

On October 30, 1977, Diana was released from prison and boarded a Greyhound for Texas. Under the release terms, she was not allowed to leave the state of Louisiana until the thirty-first, and when the bus crossed the border before midnight, she had some nervous moments, fearing it would be pulled over and she would be sent back.

Diana got a full pardon, which Louisiana grants first offenders on completion of their jail time. All her rights were restored. The State Bar of Texas knew of Holt’s conviction for armed robbery when it approved her application to take the bar exam. The South Carolina Bar knew of the conviction and likewise decided she was of sufficient moral character to be a lawyer. The State Bar of Georgia approved her as well.

But the attorney general of South Carolina and the chief of SLED didn’t give a damn about the judgments of others. They had their own agenda.

As part of the investigation that the South Carolina Supreme Court had ordered in the Johnson case, Hess would be called to testify that she had lied at Johnson’s trial. If she declined, which she well might, given the potential criminal charges she was facing, then John Blume would introduce into evidence the affidavit Hess had given Holt. Blume would have to put Holt on the stand to vouch for the affidavit’s authenticity. The state would seek to undermine Holt’s credibility with her felony conviction. The attorney general subpoenaed her for a deposition. On Friday, April 21, 2000, Holt and Blume walked to the attorney general’s office, where Don Zelenka was waiting for them. He was going to take her deposition. Blume was representing his former protégé turned colleague. When Holt had first told John about the incident in New Orleans and her time in prison,
he was not pleased. He worried that if the information became public, it would hurt the center’s clients, that conservatives would say, in effect, What do you expect from death penalty lawyers? They’re no better than their clients. For weeks, Blume and Holt barely spoke. Eventually, however, Blume came to see her story as one of redemption.

Walking into the deposition, Blume and Holt were not sure how much Zelenka knew about her past. The deposition began routinely. Zelenka asked her name, age, and date of birth.

“I always think I’m still eighteen,” she said, never able to resist a quip.

“I keep thinking I’m forty,” said Zelenka, who was over fifty.

That brought some laughter. The last.

Zelenka began methodically asking her about her past—where she had gone to high school, where she had lived and worked in Texas.

Holt had trouble remembering all the dates in her turbulent past. “If I had known y’all were going to be asking about this stuff, I would have researched it,” she said.

“Just general questions,” Zelenka responded.

Abruptly, the mood changed.

“Description of anything in your background that could be used to discredit you or prejudice the court?” Zelenka asked in the cryptic way lawyers sometimes use in depositions. “For example, have you ever been arrested for DUI or other offenses?” He knew the answer, of course.

Blume objected. This was irrelevant. But he and Diana still weren’t sure what Zelenka had.

“Did you go by the name of Diana Lynn Nerren in 1975?” Zelenka asked.

Now they knew. They looked at each other. What do you want to do? he asked. I’ll answer, let’s go, she said. “You’re the bravest person I know,” Blume said. The memory of his reaction, those words, moved her years after.

“I think all of this is irrelevant,” Blume told Zelenka. “I also think it is unbelievably tacky.” He said he would move to have the deposition sealed. Zelenka said he would not agree to seal
the deposition or to any limitations on its use. This was down and dirty. He turned back to Diana and asked her about the conviction.

She started the answer where she thought she should, with the custody proceeding, where she’d been called as a witness by her mother, to tell the judge about the years of sexual abuse at the hands of her stepfather.

Zelenka interrupted. That wasn’t necessary. He just wanted to know about the conviction.

“May I finish?” she said icily.

“But I’m telling you, you don’t need to go into that.”