by Raymond Bonner. New York, NY: Vintage Books, 2012. 299 pages. Cloth $26.95. ISBN: 978-0-307-94854-0.
Reviewed by Jack E. Call, Professor of Criminal Justice, Radford University.
pp.291-295
Anatomy of Injustice is the story of the murder prosecution of Edward Elmore. The author, Raymond Bonner, presents a compelling argument that the state of South Carolina convicted an innocent person when Elmore was convicted of capital murder and awarded a death sentence in April of 1982. As such, the book represents another addition to the collection of books detailing wrongful convictions in capital cases (Grisham, 2006; Junkin, 2004; Edds, 2003).
Dorothy Edwards was a widow and pillar of her community in Greenwood, South Carolina. On January 17, 1982, her body was found in the closet of her bedroom by a neighbor, Jimmy Holloway, who had been given a key to her house by Mrs. Edwards. Mrs. Edwards had been stabbed to death. (Whether she had been sexually assaulted would remain a subject of some disagreement).
The police immediately focused on Edward Elmore as their primary suspect. Elmore was an uneducated, young black man who made a living, of sorts, doing odd jobs. Days before her murder, Elmore had cleaned the gutters and washed the windows of Mrs. Edwards’ house. Based on this information and a fingerprint of Elmore found near the back door of the Edwards home, the police arrested Elmore days after the murder.
Elmore would spend the next thirty years in jail or prison for Mrs. Edwards’ murder. Like so many wrongful conviction cases, Elmore was tried more than once. His first conviction was overturned because of improper instructions given to the jury by the trial judge after the jury had convicted Elmore and was deliberating on sentence. When the foreman reported to the judge that at least one juror was holding out against a death sentence, the judge reminded the jury that they had taken an oath to consider awarding a death sentence if circumstances warranted it. (The South Carolina Supreme Court held that this instruction was prejudicial, because it was directed only at the hold-out jurors).
Elmore’s second trial also resulted in conviction and a death sentence. The South Carolina Supreme Court overturned the death sentence awarded at this trial because the defense had not been permitted at the sentencing stage to introduce evidence that Elmore had been a model prisoner. (The U.S. Supreme Court’s decision in Skipper v. South Carolina held that it is unconstitutional to prohibit the introduction of such evidence). At the re-sentencing hearing that followed, a new jury gave Elmore a death sentence for the third time.
The two trials relating to guilt or innocence included many of the [*292] elements that are characteristic of wrongful conviction cases. The police investigation seemed to suffer from “tunnel vision.” The police focused on Elmore as their prime suspect, essentially from the first day of the investigation, even though at least one neighbor of Edwards (for whom Elmore had also done work) thought it was very unlikely that Elmore could have been the killer. Nor did Elmore have any prior history of criminal activity (beyond a few calls to the police concerning domestic disputes by Elmore’s girlfriend). Elmore’s motive was presumed to be sexual, since very little of value seemed to be missing (and many items of considerable value were left behind), but evidence of sexual assault was far from compelling. The police failed to focus at all on another likely suspect – Jimmy Holloway. There were rumors that Holloway and Edwards had been carrying on an affair. Edwards had been seeing another man, and it was generally thought that she was about to marry this man, giving Holloway a motive. Holloway also had easy access to Edwards’ home, a fact consistent with the absence of forced entry in the case.
Bonner also argues that Elmore received inadequate representation at his first two trials, another common theme in wrongful conviction cases. One of Elmore’s co-counsel, Geddes Anderson, was reputed to have a drinking problem. Elmore said that Anderson smelled of alcohol every day of trial. Even one of the primary police investigators in the case said that Anderson was drunk throughout the trial. The other co-counsel, John Beasley, was renowned locally for his aversion to hard work. As a result, Bonner indicates that the defense attorneys “consulted no independent experts, no pathologists, no fingerprint specialists. They didn’t search for witnesses; didn’t talk to any of Mrs. Edwards’s neighbors; didn’t interview Mr. Holloway, who had found the body. They didn’t even read the police interviews with the witnesses” (p.49).
There was also the ubiquitous jailhouse snitch. James Gilliam, Jr., was put in Elmore’s cell two days before the trial and then sent a letter to the prosecutor in the case, indicating that Elmore had admitted the killings in conversations with him. As sometimes happens with jailhouse snitches, Gilliam later recanted his testimony. He testified to this fact in a post-conviction hearing, even though the judge made it clear to Gilliam that he might be subject to perjury charges by doing so.
Bonner also contends that the case included instances of prosecutorial misconduct. Forensic evidence disclosed that a fingerprint found on the back door of the Edwards home and another fingerprint found under the toilet seat in the bathroom connected to the master bedroom were not those of either Elmore or Mrs. Edwards. This evidence was not provided to the defense. Arguably this was evidence favorable to the defense which the prosecution was required to disclose to the defense under the Supreme Court’s ruling in Brady v. Maryland (which held that the prosecution must turn over to the defense any material exculpatory evidence in its possession). The prosecution also did not turn over to the defense some slides of material taken from Mrs. Edwards’ body. The pathology report indicated that the slides contained pubic hair, but a police [*293] investigator testified at trial that the slides only contained fibers. (Bonner indicates that experienced investigators can tell the difference between fibers and human hairs through mere visual examination). Although the prosecutor assured the court at trial that these slides no longer existed, they surfaced during the post-conviction process.
In many wrongful conviction cases, there are instances when it appears that judges are being less than diligent in reviewing significant legal issues. At a post-conviction review hearing held under state law in this case, the defense presented substantial evidence raising serious questions about Elmore’s guilt. Judge Kinard, who presided over the hearing, adopted the prosecution’s Memorandum of Law as his decision in the PCR proceeding verbatim. Bonner says the judge did not even correct typographical errors. The judge did this in spite of a Supreme Court case (Anderson v. Bessemer City) that was very critical of judges who fail to write their own findings and legal conclusions, because such a failure suggests a lack of independent thinking by the judge. At a later hearing on another defense motion for a new trial, the same judge ruled against the defense from the bench immediately after the conclusion of the hearing. It can be argued, of course, that the defense case was so weak that the judge needed no time to deliberate, but given the seriousness of the issues raised by the defense and the consequences of the ruling (i.e., the likely execution of a person), it would have been far more prudent for the judge to take at least a few days to ponder his conclusions.
In spite of these instances of questionable judicial actions, there are also instances in this case of judges who seem dedicated to doing the right thing. As mentioned previously, the South Carolina Supreme Court ordered that Elmore be retried and also later ordered that a new sentencing proceeding be held. In addition, in spite of the fact that the defense arguably waited too long under state law to file a petition that Elmore be spared execution because he was mentally retarded (and thus could not be executed under Atkins v. Virginia), state court judge Mark Hayes granted the defense’s motion to consider the issue, acknowledging that the state’s motion in opposition was “reasonable and rational.” Judge Hayes elected to exercise his equitable powers to ignore the law that seemed to bar the defense’s motion and ultimately ruled that Elmore was indeed mentally retarded and could not be executed.
Another aspect of this case that is common in wrongful conviction cases, especially capital cases, is the appearance on appeal of dedicated lawyers who provide vigorous representation of their clients for years. In Elmore’s case, those lawyers were Diana Holt and Christopher Jensen. Jensen was a partner in a large, prestigious New York law firm who took on Elmore’s case pro bono. It was Holt, however, who became the emotional force that drove the defense on appeal. Holt became involved in the case after her second year of law school (and later went to work for the South Carolina Death Penalty Resource Center). She became totally convinced of Elmore’s innocence and worked tirelessly on his behalf. Raised under difficult circumstances and sexually abused by a stepfather as a child, Holt’s story is almost as compelling as Elmore’s. [*294] Indeed, the reader comes to see Holt as perhaps the central figure in the book, even more so than Elmore.
Thanks to the tireless efforts of Holt and Jensen (as well as others), the U.S. Fourth Circuit Court of Appeals eventually ruled (2-1) in 2011 that Elmore should be retried yet again. Faced with the prospect of another trial nearly thirty years after the crime, a new local prosecutor, Jerry Peace, had little appetite for re-litigating the case. In fact, he had read the first edition of this book (without the epilogue added for this edition) and found many aspects of the case troubling. Rather than dismiss the charges against Elmore, Peace negotiated a different resolution of the case. In return for Elmore’s entry of an Alford plea (a plea of guilty without acknowledging guilt, but conceding that sufficient evidence exists for conviction), Elmore was released from custody on March 2, 2012.
The Edward Elmore case is obviously an interesting one, and Bonner tells the story of the case well. (The book was a finalist for the American Bar Association’s Silver Gavel Award, given to works that “have been exemplary in helping to foster the American public's understanding of the law and the legal system”). However, the book is not without flaws. In many instances, Bonner fails to mention the exact dates of critical events in the case. Usually the reader has a general sense of the timing, but there are instances where more precision would have been very helpful.
In at least one instance, Bonner misinforms the reader about the law. In his discussion of the evolution of capital punishment cases before the Supreme Court, Bonner discusses the first set of cases to go to the Supreme Court after its landmark decision in Furman v. Georgia, holding that the death penalty as presently administered in this country, was unconstitutional. In these cases, usually referred to collectively as Gregg v. Georgia, the Supreme Court ruled on death sentences in cases from five states that had rewritten their death penalty statutes in the wake of the Furman decision. Bonner indicates that “[t]he new capital punishment laws were upheld,” when in fact the death penalty statutes in two of the cases were found to be unconstitutional (p.38).
In other instances, one would have liked to know more about the law (or practice) than Bonner reveals. For example, Bonner never tells the reader what the state must prove in South Carolina in order to get the death penalty. He explains a little about the law of murder, but not the law of capital murder. When he explains the decision of the South Carolina Supreme Court to overturn Elmore’s first conviction because of the manner in which the trial judge handled the jury after being told that at least one juror was refusing to award a death sentence, he does not explain why a completely new trial, rather than only re-sentencing, was necessary.
When Diana Holt first gets involved in Elmore’s case and represents him at a state post-conviction (PCR) hearing, there is no explanation as to how the defendant gets this hearing. We are told that this is “the venue for a convicted defendant to argue that there are material facts the trial court failed to consider that justify the new trial.” We are not told whether this hearing comes about as a result of a state petition for a writ of [*295] habeas corpus or whether there is some other state rule that provides for such a hearing in all criminal cases. Nor are we told the standard of proof that the defense has to satisfy at a PCR hearing.
Bonner also mentions passage of the Anti-Terrorism and Effective Death Penalty Act by Congress in 1996 and the fact that the statute eliminated federal funding for state death penalty resource centers, such as the one at which Holt worked. However, there is no explanation as to how changes in the law brought about by the Act impacted Elmore’s case.
When the case moves from state court to federal court, Bonner does not give much attention to the significance of this shift. The first action taken in federal court (in 2004) was to seek a stay of execution, but Bonner does not explain the legal basis for making this request. Is there a federal law permitting it or is this incidental to filing a petition for a writ of habeas corpus in federal court? Nor does Bonner include a general discussion about writs of habeas corpus – their historical context or their role in our federal system of government, giving federal courts the authority to review state court criminal convictions.
In fairness to Bonner, many of these criticisms may stem from the fact that I have a law degree and teach law-related courses. Thus, I tend to focus on legal details more than other readers might. Bonner’s audience is the general public, not lawyers or even academicians. And in fact, if this book were used in a course on judicial process or capital punishment, these criticisms could be useful pedagogically. They provide opportunities to challenge students to look for things that are missing from the discussion of the case. In the final analysis, it is book that could be quite useful in political science or criminal justice courses, even at the undergraduate level. The writing style is quite accessible by undergraduates, and the story is compelling enough to hold their attention.
REFERENCES:
Edds, Margaret. 2003. An Expendable Man: The Near-Execution of Earl Washington, Jr. New York: New York University Press.
Grisham, John. 2006. The Innocent Man: Murder and Injustice in a Small Town. New York: Doubleday.
Junkin, Tim. 2004. Bloodsworth. Chapel Hill, N.C.: Algonquin Books of Chapel Hill.
CASE REFERENCES:
Anderson v. Bessemer City 470 U.S. 564 (1985).
Atkins v. Virginia 536 U.S. 304 (2002).
Brady v. Maryland 373 U.S. 83 (1963).
Furman v. Georgia 408 U.S. 238 (1972).
Gregg v. Georgia 428 U.S. 153 (1976).
Skipper v. South Carolina 471 U.S. 1 (1986).
Copyright 2013 by the Author, Jack E. Call.
