Raymond Bonner - Anatomy of Injustice: A Murder Case Gone Wrong

ALSO BY RAYMOND BONNER

At the Hand of Man: Peril and Hope for Africas Wildlife

Waltzing with a Dictator:
The Marcoses and the Making of American Policy

Weakness and Deceit: U.S. Policy and El Salvador

The Discarded Army: Veterans After Vietnam

(Paul Starr, with James Henry and Raymond Bonner)

THIS IS A BORZOI BOOK
PUBLISHED BY ALFRED A. KNOPF

Copyright 2012 by Raymond Bonner
All rights reserved. Published in the United States by Alfred A. Knopf, a division of Random House, Inc., New York, and in Canada by Random House of Canada Limited, Toronto.
www.aaknopf.com

Knopf, Borzoi, and the colophon are registered trademarks of Random House, Inc.

A portion of this work was previously published in The Atlantic (March 2012).

Library of Congress Cataloging-in-Publication Data
Bonner, Raymond.
Anatomy of injustice : a murder case gone wrong / Raymond Bonner.1st ed.
p. cm.
A Borzoi Book.
eISBN: 978-0-307-95736-8
1. Elmore, Edward LeeTrials, litigation, etc. 2. Trials
(Murder)South Carolina. I. Title.
KF225.E43B66 2012
345.75702523dc23 2011023515

Jacket design by Jason Booher

v3.1_r2

In memory of my mother,

Marjorie De Mund Bonner

(19122000),

who instilled the values in the beginning,
and for

Susannah and Fiona,

who give me hope for the future

[The prosecutors duty] is not that [the government] shall win a case, but that justice shall be done. He may prosecute with earnestness and vigorindeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

JUSTICE GEORGE SUTHERLAND ,
BERGER V. UNITED STATES, 1935

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty.

JUSTICE BYRON WHITE ,
UNITED STATES V. WADE, 1967

I N THE FIRST month of the twenty-first century, Governor George Ryan of Illinois dramatically thrust the death penalty into the national debate. Investigative work by reporters at the Chicago Tribune and by a joint project at the schools of law and journalism at Northwestern University had resulted in several condemned men having their convictions reversed, one only hours before he was to be executed. Ryan, a longtime proponent of capital punishment, was shaken. Until I can be sure that everyone sentenced to death in Illinois is truly guilty, until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate, said Ryan. A conservative Republican, Ryan said he still believed in the death penalty, but was compelled to suspend executions in the face of the states shameful record of convicting innocent people and putting them on Death Row.

Two weeks later, another conservative Republican governor, George W. Bush of Texas, was asked about capital punishment when he appeared on Meet the Press as his partys leading presidential candidate. As governor, Bush had presided over more executions than any state chief executive in history. Indeed, under his watch, from 1995 to 2000, Texas put more men and women to death than the next five states combined (Virginia, Oklahoma, South Carolina, Florida, and Alabama). Toward the end of the hour-long program, the host, Tim Russert, raised the subject of the death penalty.

Would Bush join Governor Ryan in invoking a moratorium until the system could be analyzed so you dont make a mistake? Russert asked, noting that Ryan was the head of Bushs campaign in Illinois.

No, I wont, Bush said without hesitation. Because Im confident that every person that has been put to death in Texas under my watch has been guilty of the crime charged and has full access to the courts. Im confident. He went on, Ive reviewed every case, Tim, and Im confident that every case that has come across my deskIm confident of the guilt of the person who committed the crime.

B USH WAS THROWING DOWN the gauntlet, in a move reminiscent of Senator Gary Harts challenge to the media during the 1984 primaries to prove his marital infidelity. But Bushs boast was far more serious: that no innocent man had been executed in Texas, that every death row inmate had enjoyed full access to the courts.

In response, The New York Times sent me to Texas to investigate and report on the matter. My colleague Sara Rimer and I spent several weeks traveling around the stateSan Antonio, Brownsville, Austin, Dallas, Houstontalking to death penalty lawyers, prosecutors, victims families, and members of the Texas Board of Pardons and Paroles, and reviewing cases of men who had been executed. We did not find any case where we could say with certainty that an innocent man had been executed. Our efforts to do so were severely hampered by the fact that once a man is executed, his lawyers and investigators turn their attention to clients who are still on death row, rather than pursuing evidence of a former clients innocence. But we found state officials involved in the Texas criminal justice system who were not as sanguine as their governor that the system was rendering justice in every case. I worry that we may execute an innocent person, said Paddy Lann Burwell, who had been appointed by Bush to the parole board. Any person would know that is a possibility. I think our system needs to be improved. Our lengthy article appeared on the front page, and it was accompanied by brief summaries of five cases.

The Times editors considered that capital punishment was a topic worthy of further reporting, and Sara and I continued to examine the various issues that marked the debate. We made repeated visits to Texass death row in Livingston. After passing through security, wed sit in a rather large room with vending machines dispensing soft drinks, coffee, and candy bars, waiting for a prisoner to be brought from his cell. Hed be on the other side of thick glass, and wed talk through a telephone. We interviewed John Paul Penry, whose case was twice argued before the United States Supreme Court. It was November, and when we asked Mr. Penry, fifty-six years old, if he believed in Santa Claus, he said, They keep talking about Santa Claus being down in the North Pole. Some people say its not true. I got to where I do believe theres a Santa Claus.

One of our front-page articles, Executing the Mentally Retarded Even as Laws Begin to Shift, was cited by both the majority and the dissent in Atkins v. Virginia, the landmark Supreme Court case that held it was unconstitutional to execute a person who was mentally retarded. We were given unexpected insight into the generally poor quality of trial representation provided defendants facing the death penalty when we interviewed a gregarious Houston lawyer named Ronald Mock. He had had more clients executed or awaiting execution than any other lawyer in the country, which didnt seem to shame him at all. Mock boasted that he had flunked his criminal law course and was a heavy drinker. I drank whiskey with judges, he said. I drank whiskey in the best bars. He insisted it didnt affect his performance, and judges kept appointing him to represent defendants in capital cases.