Anatomy of Injustice (6 page)

Are these your shoes? Henderson asked, showing him the shoes Elmore had been wearing when arrested.

Yes, sir.

How long have you been wearing them?

Long time, said Elmore. He wore them all the time.

All weekend? asked Henderson.

Yes, sir.

On Saturday, the sixteenth? Yes, sir.

Henderson told him the stains on the shoes looked like blood. Any idea how that got there? Henderson asked.

No, sir, no idea, said Elmore.

Been killing any cows or hogs or any kind of animal, or you
been walking in blood? Henderson asked sarcastically, his signature interrogation technique.

No, sir, Elmore said respectfully.

The interrogation went on for more than two hours. The police had concluded that Mrs. Edwards had been murdered Saturday evening, based on what Holloway had told them, as well as the coffeepot and the alarm clock being on. They asked Elmore what he had been doing that day. He told them about borrowing his sister’s car, driving to Greenwood, working for a woman who lived near Mrs. Wingard, driving back to Kmart, eating at Po’ Folks with Mary and two friends, finishing at “that lady’s house on Henrietta Avenue” (it was Mrs. Blaylock, and she lived on North Street). He went on to say that he had gone back to Kmart and given Mary $10, that she had been picked up by her brother Donnie, that he had gone to her apartment, that she got mad at him and left to go to her mother’s, and that he had spent the night. (He did not go into detail about the fight he and Mary had had.)

Henderson dictated a summary of what Elmore had said to a secretary, who typed it up; it was slightly more than a page in length. At 5:05 a.m., Elmore signed it. He’d gone almost twenty-four hours without sleep. Now he was driven to SLED headquarters in Columbia for more interrogation. Henderson and Johnson went with him.

M
EANWHILE
, the police moved swiftly to gather evidence. It was still dark on Wednesday morning when Dickenson and Vanlerberghe drove to Abbeville. They woke a local judge, Mary Daniels, to countersign a search warrant. Then they went to the Hickory Heights Apartments, where Peggy lived. It was 7:45 in the morning. The police officers knocked on the window of apartment 4F, waking her. Peggy got up and came to the door. Do you have a brother, Edward, she was asked? Yes. They asked for permission to search her car, which was parked in the south lot of the Greenwood Gardens Apartments. They didn’t say why. She didn’t feel she had any choice. “The police do what they want to,” she said later. “I didn’t want to go to jail.” She signed
the consent form. They now told her that her brother had been arrested for murdering a woman. After they left, she drove into Greenwood to see him, to find out what was going on. But he was already in Columbia being questioned by SLED.

The police officers walked over to apartment A, where Edward’s mother lived, and Edward, too, when he wasn’t with Mary. They introduced themselves and showed Mrs. Elmore the warrant. It authorized them to search for “a ladies clutch purse, money with blood marks, male shoes and male clothing which may contain blood marks and/or hairs of one Edward Lee Elmore or Dorothy E. Edwards, deceased, and a pistol firearm.” She couldn’t read it, but she wasn’t about to say no to any white police officer either, and led them to her son’s tiny room, which he shared with his brother. There wasn’t much in it. A corduroy jacket and a pair of Levi’s were hanging on the door. There were a few small reddish spots on the jeans. The officers took them.

Another Greenwood police team went to Mary Dunlap’s apartment in Greenwood. She, too, consented to a search. While there, with the permission they had from Peggy, the police took the LTD and drove it to the station. The police vacuumed the seats and floorboards, front and back, sure they would find some hair or fibers Elmore had picked up while raping and murdering Mrs. Edwards. They came up with half a garbage pail of dirt and debris; Henderson delivered it to SLED for analysis. He described the contents: “Vacuum bag samples from floor of car driven by Edward Elmore on the day he murdered Dorothy Edwards.”

Henderson wasn’t being careless when he wrote “murdered” and not “allegedly murdered.” By that time, he explained during a deposition in the case years later, the police “had firmly reached the conclusion” that Elmore had murdered Dorothy Edwards.

“Area Man Faces Murder Charge”
The Index-Journal
trumpeted in a three-column headline at the top of the page on its Wednesday afternoon paper. And the police considered the case closed. “No other arrests expected,” said the police chief, John Young.

The tests on the vacuumed debris revealed nothing. Nor was there any blood in the car. The police found nothing incriminating in Mary’s apartment either. They never found Mrs. Edwards’s Aigner clutch purse, or the gun, which Holloway said she kept next to her bed. That didn’t sway Henderson, the police, or the prosecutor.

T
WO DAYS AFTER
Elmore was arrested, the Greenwood County solicitor, William T. Jones, a powerful and legendary figure, told the court during a hearing following Elmore’s arraignment that he intended to seek the death penalty. It was not a surprise, given the history of Jones and the state.

South Carolina has been executing criminals as long as it has existed, as a colony and a state. Hanging rope gave way to the electric chair in 1912, and since 1995, the condemned can choose between the electric chair and lethal injection. The state has the distinction of having put to death the youngest person to be executed in the United States in the twentieth century, George Stinney. An African American, he was fourteen years old when he was convicted, in 1944, of murdering two white girls. The only evidence against him was his supposed confession. An all-white jury convicted him in ten minutes. His arrest, trial, and execution took less than two months.

The American colonies adopted capital punishment from England, where public hanging, burning at the stake, and beheading were the punishments for anyone convicted of a felony, which included shoplifting and stealing a spoon or rabbits, as well as treason, murder, and marrying a Jew. When English juries balked at convicting defendants for petty crimes because they knew it meant death, Parliament steadily reduced the number of capital offenses, until execution could be imposed only for murder and treason. The British government abolished the death penalty altogether in the 1960s, even though polls showed the overwhelming majority of the public supported it.

When it came to writing the Constitution, the Founding Fathers left the issue of execution—along with other punishments—to the states, and hangings continued to be public spectacles. Only a few early American leaders were opposed to the death penalty, most notably Benjamin Franklin and Thomas Jefferson, and the first organized opposition came with the formation of the Society for the Abolition of Capital Punishment in 1845. Many of its members were also active in the anti-slavery movement. Even back then, and not just in the South, blacks made up a disproportionate number of those executed. It wouldn’t happen “to a white man with money,” a Boston newspaper wrote about the hanging of a black seaman, Washington Goode, whose case became a rallying cry for abolitionists; some four hundred Concord residents, including Henry David Thoreau and Ralph Waldo Emerson, signed a petition calling on the governor to commute his sentence. Connecticut was the first state to abolish public executions, in 1830, and Michigan was the first state to do away with capital punishment altogether, in 1846, followed quickly by Rhode Island and Wisconsin. (One hundred fifty years later, the Wisconsin district attorney who prosecuted Jeffrey Dahmer, the serial killer who murdered and dismembered at least seventeen boys and men, explained why he was opposed to the death penalty. “I have a gut suspicion of the state wielding the power of death over anybody,” said E. Michael McCann. “To participate in the killing of another human being, it diminishes the respect for life. Period.”) In the South, punishment by death was tied up with slavery—inciting slaves to run away and the striking of a white person by a slave were capital crimes—and all southern states have the death penalty today.

Executions rose during the Depression, reached a one-year record of 153 in 1947, and then began to taper off as the abolition movement gathered steam, focused now in California and with an assist from Hollywood. Two death row inmates at San Quentin, Barbara Graham and Caryl Chessman, became household names. Graham was a petty criminal, prostitute, and drug addict who was convicted, along with two male friends,
of murdering a sixty-four-year-old widow in the course of a robbery; she was put to death in the gas chamber in 1955, two weeks shy of her thirty-second birthday. A movie was made of her case,
I Want to Live!
, with Susan Hayward playing Graham, for which she won an Oscar as best actress. One critic called it a “relentless indictment of capital punishment,” while another described it as “a dramatic and eloquent piece of propaganda for the abolition of the death penalty.”

Chessman acquired his fame and his role as a cause célèbre for the anti–death penalty movement from his own writings—four books while he was on death row, including
Cell 2455, Death Row
. He never killed anyone and was sentenced to death for a string of assaults on young women on Los Angeles freeways. He earned the sobriquet “Red Light Bandit” for his modus operandi: following young women drivers, he would flash a red light; when they pulled over, he would rob and sometimes rape them. He represented himself at trial and while in prison prepared appeals himself, which earned him several stays of execution. His case attracted international attention, with Pope John XXIII among those calling for Chessman’s life to be spared. California governor Edmund G. “Pat” Brown was a devout Roman Catholic, and opposed to the death penalty, but the California legislature rejected a law to abolish the death penalty, and with polls showing that Californians strongly supported Chessman’s execution (54 percent to 33 percent), Brown let Chessman go to the gas chamber on May 2, 1960. But the anti–death penalty movement gathered momentum, and a Gallup poll in 1966 found that only 32 percent of Americans supported capital punishment. Support has never been lower, before or since.

Nearly half the individuals being executed were black (even though they made up only some 13 percent of the population), and lawyers at the NAACP Legal Defense and Educational Fund (LDF) were methodically chipping away at capital punishment. Under the direction of two brilliant lawyers, Jack Greenberg and Anthony Amsterdam, the LDF began to lodge appeals in every death sentence case throughout the land. The result was a de facto moratorium. There was only one execution in 1966;
there were two in 1967. State court judges waited to see what the Supreme Court would ultimately say. The answer came in 1972.

Three cases reached the court, those of Lucious Jackson Jr., a twenty-one-year-old black man who raped a white woman, holding scissors against her neck, after escaping from prison; Elmer Branch, a black man of “dull normal intelligence” who raped a sixty-five-year-old white widow in Texas; and William Henry Furman, a twenty-six-year-old black man who murdered a father of five during a botched burglary. Furman had a history of mental problems and was deemed by a state psychiatrist to be mentally incapable of assisting in his own defense; his trial had lasted one day.

The question before the court was limited: Is the imposition and carrying out of the death penalty in these cases cruel and unusual punishment in violation of the Eighth Amendment to the Constitution? The amendment was adopted verbatim by the Founding Fathers from the English Bill of Rights, and it is only sixteen words long: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The court had rarely had to consider the clause, and when it did, the issue focused on the method of execution. In 1878, in
Wilkerson v. Utah
, the court upheld execution by firing squad. Twelve years later, in
In re Kemmler
, it upheld the electric chair. One of the more notorious cases to reach the court involved efforts by Louisiana to execute sixteen-year-old Willie Francis for murder. There was no physical evidence linking him to the crime, but he allegedly confessed. On the day set for his execution, he was strapped into the electric chair. The first jolt didn’t kill him. The executioner upped the voltage; that also failed to kill him. He was led back to his cell. Appeals followed. The court upheld the right of the state to try again. While what the state was doing was “hardly defensible,” Justice Felix Frankfurter wrote, “It is not so offensive to make one puke—it does not shock my conscience.” Though he was “strongly against capital punishment,” he said that it was a matter for state legislatures, not the Supreme Court.

Those three cases largely represented the state of the law when
Furman v. Georgia
reached the court in 1971. In
Furman
, the issue wasn’t the method of execution, but execution per se—was it proscribed by the Eighth Amendment? By a vote of 5–4, the court overturned the sentences.

But the decision was far more complex than it appeared. For starters, the court announced its decision in a very short, unsigned per curiam opinion, something extremely rare. It reflected that the justices were as divided and uncertain on capital punishment as was the general public. Each of the justices wrote a separate opinion, the total coming to more than two hundred pages, one of the longest documents ever produced by the Supreme Court.

Only Justices Thurgood Marshall and William J. Brennan Jr. declared categorically that the death penalty was unconstitutional. “The criminal acts with which we are confronted are ugly, vicious, reprehensible acts,” Marshall began his eighty-five-page opinion. “Their sheer brutality cannot and should not be minimized.” But the court was not being asked to condone the crimes, Marshall went on; it was only being asked whether the death penalty in each case violated the Eighth Amendment. He then traced the history of capital punishment, noting the decline in the number of crimes for which it was considered appropriate and in its implementation. He concluded that it wasn’t a deterrent, and that it was more costly to execute a man than to keep him in prison for life. Finally, he declared, putting a man to death for a crime “is morally unacceptable to the people of the United States at this time in their history.”