Anatomy of Injustice
California Lawyer

Anatomy of Injustice

A Murder Case Gone Wrong

August 2012

Knopf, 298 pages, $26.95, hardcover

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It's a familiar story. In a small, Southern town (it's usually in the South), a semiliterate, mentally retarded African American is charged with murder. The victim is an elderly white woman. In this case, the accused, Edward Lee Elmore, performed odd jobs around the neighborhood and cleaned gutters and windows at the victim's home.

The trial took place less than three months after Elmore's arrest. The local solicitor (South Carolina's title for its DAs) prosecuted the case personally. The court-appointed lead defense counsel drank throughout the trial. The second-chair counsel once referred to Elmore as a "redheaded nigger."

Elmore was convicted and sentenced to death. It's a familiar story so far, although better told than most. The author of Anatomy of Justice, Raymond Bonner, was part of a Pulitzer Prize-winning reporting team at the New York Times. He has written five books, including Waltzing with a Dictator: The Marcoses and the Making of American Policy.

What distinguished Edward Lee Elmore's story from many others' was the dedication of his appellate lawyer, Diana Holt, who made his case into a personal crusade. By the time she began working on it in 1993, Elmore had already gone through two retrials. He was convicted in both. Holt's team of appellate lawyers interviewed potential witnesses who had been passed over in the initial trial. The victim's next-door neighbor, who found the body and reported the crime, was never considered a suspect even though other neighbors thought he was having an affair with her. Astonishingly, he told Holt later, "I am the only person who could kill her and get away with it .... [t]he way she trusted me."

Over the prosecution's vigorous opposition, Holt got a court order for DNA testing of hairs recovered from the victim's bed, and traces of blood found on Elmore's jeans and shoes. Some of the hairs were from another, unidentified male, but the bloodstains were the victim's.

The appellate team finally freed Elmore from death row in 2009 on the basis of his mental retardation. The claim was not raised within the one-year limit of AEDPA (the chillingly-named Antiterrorism and Effective Death Penalty Act) because an earlier psychiatric examiner had found Elmore not to be retarded. Nevertheless, the U.S. Supreme Court had held in Atkins v. Virginia (536 U.S. 304 (2002)) that state courts should engage in substantive reviews of retardation claims by condemned appellants, and the reviewing court in Elmore's case ordered a new examination.

Elmore is no longer condemned to die, but he remains imprisoned. His story illustrates what all lawyers who do criminal appeals know: that the concept of justice has effectively been replaced by that of procedural due process. Our system severely disfavors the disturbance of guilty verdicts. "It is easier for a camel to pass through the eye of a needle," Bonner writes, "than for a condemned man claiming innocence to get a new trial."

In Los Angeles County, for example, the district attorney's office routinely opposes appellate requests for DNA testing even as it operates a Cold Case Task Force charged with reopening old cases by (among other means) using DNA evidence. The recent conviction of former LAPD detective Stephanie Lazarus for the 26-year-old murder of her former lover's wife was obtained after a DNA comparison.

The Supreme Court articulated the due process-over-justice principle in Herrera v. Collins. (506 U.S. 390 (1993).) "Due process does not require," Chief Justice William H. Rehnquist wrote for the majority, "that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person. To conclude otherwise would all but paralyze our system for enforcement of the criminal law." (506 U.S. at 399.)

But Associate Justice Harry A. Blackmun wrote in Herrera, "I believe it contrary to any standard of decency to execute someone who is actually innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder." (506 U.S. at 446.) Justices John Paul Stevens and David Souter joined him in dissent.

Ben Pesta is a white-collar and criminal defense lawyer in Century City.

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