Topnav_thin
Loading
SEARCH SITE
Subject:
Publication:

Anatomy of Injustice: A Murder Case Gone Wrong



University of California Berkeley Berkeley Law School Death Penalty Clinic / Graduate School of Journalism Anatomy of Injustice: A Murder Case Gone Wrong Raymond Bonner and Mark Danner Introduced by Elisabeth Semel March 15, 2012

Liz: ...and I direct the death penalty clinic. So welcome to Ray Bonner in conversation with Mark Danner, which is sponsored by the Berkeley Law Death Penalty Clinic and the Graduate School of Journalism at UC Berkeley. Just a couple of quick things. This event is being recorded for a public radio station, the name of which I don't know. Not one of ours. So just know that you're being recorded. Second, there are books for sale, we just wanted you to be aware, in the upper left-hand corner above me. I want to begin with an introduction. You may be here because of Raymond Bonner, particularly your interest in his new book, Anatomy of Injustice. Perhaps you're here because of Mark Danner, whose career as a journalist is almost as stellar as Ray's. It is a decade or so shorter.

Mark: He's older than I am.

Ray: A decade or so shorter. Way to begin, isn't it, Mark?

Liz: The short word was going...we're going to get in trouble. And speaking as one of those short people. If you are so well informed that you are joining us because you did not want to miss the opportunity to hear Ray and Mark in conversation, you're not only in the right place, but while I'm introducing them, you can devote your attention to making sure your cell phones are off. As will become clear, it's no coincidence that Ray and Mark have crossed paths many times, beginning, I believe, in El Salvador. Both are journalists in what Mark calls the reality-based community, which explains why the death penalty clinic and the journalism school are co-sponsoring this event.
     Before Ray Bonner was a journalist, he was a lawyer for more than a decade, having graduated from that obscure law school in the place we now call Silicon Valley. He was an attorney with Nader's public citizen litigation group, and even did a stint as a prosecutor, where he was head of the consumer fraud white collar unit of the San Francisco District Attorney's office. But when Ray converted to journalism, he went large, and he hasn't stopped. In 1981, then reporting for the New York Times, Ray was one of two journalists who broke the story about the El Mozote massacre, in which hundreds of Salvadorans were killed by a U.S. trained battalion of the Salvadoran army. Pressure from the Reagan Administration forced Ray's removal from the Central American desk, and ultimately Ray resigned from the New York Times. It was not the last time that he resigned from the New York Times. [Laughter.]
     In between authoring four books, Weakness and Deceit: U.S. Policy and El Salvador; Waltzing with a Dictator: The Marcoses and the Making of American Policy; At the Hand of Man: Peril and Hope for Africa's Wildlife; and now Anatomy of Injustice: A Murder Case Gone Wrong, Ray covered international affairs from some 100 countries for, among others, the New York Times, The New Yorker, and The Atlantic. He's the recipient of a shared Pulitzer Prize, the Overseas Press Club Award, and the Louis M. Lyons Award for Conscience and Integrity in Journalism. I'm starting to feel like we're at the Commonwealth Club. We're about to shift.
     In 2000, when George W. Bush told Tim Russert, of Meet the Press, that Texas had never executed an innocent man and that everyone on death row had had a fair trial, Ray decided this assertion might be newsworthy, which is to say, it might be worthy of investigation. For the New York Times, Ray scoured not only Texas, but several states in the South and the administration of the federal death penalty, exposing far more about the capital punishment system in the United States than just the lie in George Bush's assertion. It was during this period that Ray began his investigation of Edward Lee Elmore's case and the 12-year process that became the book. This was also when and how I met Ray Bonner and got to know him. To offer a dubious proposition, if a criminal defense attorney can fall in love with a journalist, in a purely professional way, I fell in love with Ray Bonner.
     Mark Danner is on the faculty of the UC Berkeley Graduate School of Journalism and Bard College, which just happens to be my alma mater, a plus. In more than two decades as a journalist, he has covered foreign affairs, international conflict and human rights violations across the globe, from Central America to Haiti, the Balkans and Iraq. Among his books are The Massacre at El Mozote — the connection — Torture and Truth: America, Abu Ghraib and the War on Terror; The Secret Way to War: The Downing Street Memo and the Iraq War's Buried History; and The Road to Illegitimacy: One Reporter's Travels Through the 2000 Florida Vote Recount. Mark has hunted down the truth about, in his words, the almost fanatical determination of administration officials to attack and occupy Iraq and the hideous consequences of that course of action. He was a staff writer for The New Yorker for more than a decade and is a regular contributor to the New York Review of Books. His upcoming book is Torture and the Forever War. So join me in welcoming Ray Bonner and Mark Danner.

[Applause.]

Mark: Thank you. Thank you so much, Elisabeth. I'd like to thank Boalt Hall and the Graduate School of Journalism as well. It's customary to say, on these occasions, that it's an honor to be here, it's a pleasure to be here, but the fact is that this is a singular experience for me, because the truth is Ray and I did not know one another in Central America. In fact, the truth of the story is I followed in his footsteps, and many years later. And the footsteps were very, very large. In fact, when I think of the coverage of El Salvador, it is the single instance I can think, in my lifetime, where the removal of one reporter dramatically altered the press coverage of an ongoing war. And it is a remarkable case that the Reagan Administration wanted to get Ray out. It's a long story in itself. But when they succeeded, it had a cataclysmic effect on how the war was covered and how it was thought about within the United States and the political elite. So it is really an honor for me to be here to talk to you. I should say one other thing, which is the last time I saw Ray for any length of time, it was in Baghdad, and the thing I remember most vividly about that occasion was one of what I would call Ray's rants. And Ray's rant that I remember — this was in the bureau of the New York Times, next to the Sheraton, I think, wasn't it, on Abu Nuwas? The rant was on the theme of, "I'm too old for this shit! I'm too old for this shit!" And he kind of was jumping around. This was 2003. "I'm too old for this shit! What am I doing here?" I remember this quite vividly. And I remember thinking, at the time, as I sat drinking my coffee, watching him dance around ranting — it's great entertainment — I remember thinking, he's not too old for this shit. [Laughs.] And so we have this book, which is...I just reread it, and it is a remarkable and incredibly depressing, among other things, achievement. It is this powerful indictment. You may think you know — and I'm sure there are many people in this audience who have strong views about the death penalty and have studied it in their own lives, but this book, I venture to say, will alter your opinions in various ways, because it is a remarkably thorough job of reporting a single case in a way that will drive you crazy and make you mad, angry, irritated, haunted. So I sit here a haunted man. And I want to explore that hauntedness. And I want to say thank you for being here, and tell us — I think we should begin here, because, on the assumption that many people don't necessarily know the details of the case, I want to begin by asking you how you came upon this case and decided to plunge into it in the way you did.

Ray: Well, thanks. I could correct some things. Resigned from the New York Times? That might be a euphemism.

Mark: You were helped to resign.

Ray: I think I have the distinction, also, of being the only person fired by both the New York Times and The New Yorker.

Mark: [Laughs.] I think that's probably true.

Ray: Not to spend all the time telling war stories and anecdotes, but saying, "I'm too old for this shit, I'm too old for this shit," I remember when I was chasing the Shining Path around Peru. At that time I think I was 18 — no, closer to 45 — and I said, "What? You know, I'm too old for this stuff, I'm too old for this stuff." Anyway, you're never too old for it. I got into this case, like Liz said, I had been overseas, as you know, and we were pulled back to the United States for my sins, I guess. And I was in the Washington Bureau. And I don't particularly work real well in bureaucracies or bureaus, and it was another time that I was in bad odor at the paper, and heard Bush and Tim Russert, like Liz said. It was right after Governor Ryan had declared the moratorium on the death penalty in Illinois, and Russert asked Bush would you do the same in Texas. And that's when Bush made this famous statement, no innocent person has ever been executed in Texas, and everybody's always had a fair trial. To me, Mark, it reminded me of what Gary Hart had said X years earlier when there were stories about his philandering, and he said, "Catch me if you can." I think exactly what he said was follow me, and journalists did, and of course that's what... And I said, hm, this is a throwing down of the gauntlet, but it's a bit more serious. And so I went to the then deputy bureau chief in Washington, Jill Abramson, who now, of course, runs the paper, and I said to her this is a throwing down of the gauntlet. And she said, would you like to go to Texas? Maybe she wanted to... And so I managed to get a visa.

Q: You were going to say maybe she wanted to get you out of the office.

Ray: I managed to get a visa and went to Texas. And I went with Sara Rimer, a really, really good reporter, terrific reporter. Liz knows Sara quite well from her reporting. And we ran around Texas for several weeks. We didn't find the case of an innocent person who had been executed, and one of the reasons we didn't is because once a person's executed, the lawyers, the death penalty clinics, places like this, innocence projects, they move on to the next case. I mean, why dig up evidence about somebody who's already been executed? Spend your time, energy and money trying to find evidence that will keep the next person from being executed. We wrote a story, which was 3,500 words, back in the days you could get that much in the paper.

Mark: Jesus.

Ray: Yeah. And sidebars, snippets of five or six other cases. And the paper was quite happy with it — I mean, this is the journalism side of things — and said we should keep going. So we kept writing about the death penalty, and we went all over the country. I was in Idaho when a guy named Charles Fain got out after 18 years on death row. And I'll never forget, he went to his lawyer's office, and he couldn't walk on the carpet because he had been walking in prison for 18 years and was not used—

Mark: On concrete.

Ray: Yeah, on concrete. And in the course of it, I ended up in — I heard about this case in South Carolina, and I called the lawyer. Liz laughs at this. She [wanted] a lawyer. The lawyer said, "I don't talk to journalists." And I said, "Well, you know, I'm different. I'm with the New York Times." She said, "I've heard that before." [Laughter.] A lot of death penalty lawyers do not trust journalists. We had a long discussion about this yesterday in the death penalty clinic. I can understand it in part, and in part I'm not sure they're right. But anyway—

Mark: Do you get credit, though, that you also have been an attorney, a defense counsel as well as a prosecutor?

Ray: Yeah, well, you know, I used to play on that, of course, depending on which...

Mark: Which side it would work.

Ray: Which side I was on.

Mark: I should say it does mean, for everybody in the audience who are lawyers, there's hope for you yet. You can become a journalist. [Laughter.]

Ray: No, but yesterday I was with people in the [murder] class who had gone from...one had been a journalist and was going to be—

Mark: Really, went to lawyer?

Ray: Was becoming a lawyer.

Mark: It takes all kinds, I guess.

Ray: Yeah. [Laughter.] So I...and I just...and there were two reasons. One was the case itself and the other is this extraordinary lawyer who became his lawyer, Elmore's lawyer on appeal.

Mark: Diana Holt.

Ray: Yeah, Diana Holt, who is listed today on Tina Brown's 150 most fearless women in the world. Of course the facts they got are wrong, but what do you expect from journalists, as Diana would say. And she's been compared, in some reviews, to a cross between Norma Rae, Erin Brockovich and former Texas Governor Ann Richards.

Mark: She's an extraordinary character. Of course one of the themes of the book, in a funny way, is that people have long lives, and do lots of different things. Diana Holt, the course of her career is astonishing.

Ray: Yeah. I mean, she's — I say in the book and I believe it, she's sui generis. There's just nobody like her. I mean, we'll talk a little bit about her, and then we'll come back to the case if you want. I mean, Diana Holt, when she was 27 years old, was on her second husband. One had tried to kill her. Had two children, no high school diploma, and had been so badly sexually abused growing up that you can barely read about it. You can barely write it and barely read about it. I mean, she talked to me about it. She knew it was going to be in the book. She read most of those parts of the book. But it's just horrific. Started when she was three years old and continued until she was a teenager. And she had another incident in her past about which she told nobody, not even her boys when they became adults, not until before the book came out. Again, she knew the book was coming out and it would have this. But when she was 17, she just had to get away from her stepfather. She was living in Houston, and ran away to New Orleans with some guy she'd met in a bar the night before, and they partied and ran out of money. So they hatched this plot where Diana went in the French Quarter and sat on a bar stool and flirted with some guy, and they agreed on the price, and they went out to his car, and her new friends run up and...yeah. He reaches under his seat. He's a U.S. Marshal. Nobody is hurt, nobody is killed, nobody is hurt. But Diana and her cohort in crime were caught in about three blocks, and she went to prison for three years. Prison in Louisiana for three years. Then she got out and had all these domestic problems. And it was after her husband tried to kill her — and the statements are very clear. The police came in and he had a gun in his hand, etc., and yet they refused to prosecute because they said, well, it was his word against hers, or her word against his.

Mark: Well, he'd actually pulled the trigger, right?

Ray: Yeah, he pulled the trigger.

Mark: And the gun misfired.

Ray: Yeah, you know. And the police knew this. But anyway, and that so enraged Diana that she said I'm going to be come a lawyer. She went to junior college, straight As, transferred junior college, straight As, Southwest Texas State, where LBJ went, straight As, and got into the University of Texas Law School. And as I've said frequently, I think the University of Texas Law School deserves a lot of credit for admitting her, given that background. And eventually she found the Elmore case. She was in South Carolina working as an intern.

Mark: It's an astonishing story, really, among other things, about what exactly inspires people, what changes people's lives. And she's one example of that. Now, there are a number of people in this book who have these dramatic backgrounds and changes in their lives. But maybe we should say a word, before we get too far, about the case itself, Edward Lee Elmore. Do you want to just tell people who he is?

Ray: The basic facts of the case are that on an unusually cold day in January, in 1982, the body of a 76-year-old, 75-year-old wealthy white widow was found stuffed in her closet in Greenwood, South Carolina — bloodied, battered, dressed in her nightgown. There was blood all over the bedroom, her bedroom. Elmore was arrested 36 hours later. He was tried and convicted and sentenced to death within 90 days. I mean, you know, that's a record. I mean, you jaywalk in Berkeley and it'll take them 90 days to prosecute you. They arrested him based on a fingerprint found by the back door and a check that the woman had given him. He had worked there as a handyman. And any of you who are lawyers and know anything about the law, or even if you're not, know you have to have probable cause to arrest somebody. And that ain't probable cause, when you've got a fingerprint when you've been there legally. And even the police said we don't know how long it was there. It could have been there two weeks, two months. And he'd been there two weeks before. And a check which was legally given to him. I mean, it was...it's interesting. I was talking to somebody today, a friend of mine I had lunch with in San Francisco, and he'd started reading the book, and we were going on about this. And one of the questions was, why did they arrest Elmore, when there was evidence that another person did it? I mean, they knew within 24 hours that Elmore was not the perpetrator, and who probably was, and they never talked to that guy. And this friend of mine said, "You know, it's a legal lynching."

Mark: Yeah.

Ray: I mean, they did a basically — he was a black guy and it was over with quickly. Police like to solve cases. Here they have a case they can solve. The community — little old ladies were very nervous, was there a serial killer on the loose, and here they can solve it within 36 hours, or say they had a suspect. And he was black, 23 years old, semiliterate, bim-bam, thank you, ma'am, done, the case over, case closed. And as you know, they had to engage in a lot of improper conduct, to use a euphemism, in order to gain a conviction.

Mark: It's a fascinating thing about this book, I think, just reading it again today, that you're trained, in a sense, when reading about a crime, you're trained in the kind of true crime way, where the crime happens and then the narrative of the book is the solving of the crime. And the interesting thing about this as a narrative — and I appreciated this, just the storytelling of it — is the crime is solved instantly, and then what you unfold is how the framing happened, essentially. I mean, the mystery is how, indeed, could they have arrested this guy? And we're talking about a young guy. What was he, 22, 23?

Ray: Twenty-three.

Mark: Twenty-three years old who — I mean, say a little about him.

Ray: Well, there's not much to say about him. I mean, he was eighth of 11 children, born to a sharecropper's daughter, illiterate, 16 years old when she had her first child. Men were in and out of her life, some white, some black, some for an hour, some for six months or a year or two years. He grew up in that abject poverty that was the basis for LBJ's war on poverty.

Mark: Meaning no plumbing, no...

Ray: Nothing. And he was forced out of this house, and then they couldn't pay the rent, and they would be evicted from another house. It was horrible abject poverty, as you can imagine it was in the South at that time, and it probably still is in parts of Appalachia. But he was very quiet. He never got into trouble. I mean, usually in these cases the person they arrest has some kind of a felony record. I mean, I talked to cops there that said he was never arrested for drunk driving, or drunkenness or disturbing the peace. He wasn't a known drug user. He was a very quiet, soft-spoken individual. Illiterate. The only arrest he had once was for cashing a bad check because he couldn't do the math, and he had a domestic dispute with his girlfriend, which was probably attributable to the fact that whenever she got in trouble and was angry with her ex-husband, she filed charges against Elmore. But he was very, very quiet, and very malleable, very...and anything his defense lawyers told him to do he would do. His defense lawyers at trial, who were terrible. They told him to testify, which was a pretty stupid thing. Very few people in criminal cases, defendants, testify. Very few in capital cases. And that doesn't mean they're guilty, of course, but it just means you don't put yourself on the stand because a good prosecutor can tie you in knots. And in this case the prosecutor was an extraordinarily capable and effective trial lawyer.

Mark: Another powerful characterization in the book, which is the prosecutor, Jones. Actually, a family of prosecutors, in fact, as his son succeeded him. And one of the scenes in the book that's rather...in a sense is kind of a symbolic laying out of the whole plot is the scene in which, indeed, this very voluble, demonstrative — I mean, he's like a preacher, a hell and floods and all the rest of it preacher standing there battering this kid, who has an IQ of 60, right, who can't read or write, left school in the fifth grade, and really didn't make it to the fifth grade, they just kept promoting him. Very soft-spoken. Everybody talked about how soft-spoken he was. Sitting there cringing under this bombardment, really, from this legendary prosecutor.

Ray: He's a hell of a lot better writer than I am, that's for sure. No, that's well put. I mean, you really sum it up well. That's exactly right. And in the second trial — Elmore was tried...his first trial was overturned on appeal. He had a second trial which was basically a repeat of the first trial. I mean, they could have pushed the replay button. They had the same witnesses, they were called in the same order, the defense did the same. But in the second trial, Elmore said, at one point, "Your Honor" — I mean, he's so soft-spoken that the judge would have to say, "Would you get closer to the microphone?" He said, "Your Honor, may I talk to my lawyer?" And the judge said, "You're not allowed to talk to your lawyer. What is it?" "Well, I'm just very nervous and I just wet my pants." I mean, here's a...by that time he was 25 years old. Imagine that. Twenty-five years old, sitting in the witness box, so shaken by the prosecutor that he wet his pants.

Mark: There's...ugh. That scene is coming back to me. You know, there is a sense in which this book...there's a way in which it touches on all of the points. It's almost a summary, dramatic, about one particular story, but a summary of all the points that people raise when they talk about how the death penalty is administered. And one of the things I always thought, despite myself, was, well, at least there are safeguards. Sometimes they don't work, but there are safeguards. It goes up again, the appeals, all the rest of it. And if you ever have thought that, read this book, because one of the remarkable things about it is it becomes this self-fulfilling prophecy that, well, he's not just been tried once, he's been tried twice. Well, he's not just been tried twice, he's been tried three times. Therefore, he must be guilty. But what is the remarkable thing about the book is there is an unfolding story of how each trial repeats precisely the injustices of the one before. It's almost like a Beckett play or something.

Ray: Yeah.

Mark: I mean, there's this kind of relentlessness about it. Say a word about the attorneys. Ray: The defense attorneys?

Mark: The first defense attorneys.

Ray: Well, the defense attorneys, one was called the Bourbon Cowboy, because he drank so much, and he probably was drunk during much of the trial, or certainly had been drinking.

Mark: He was proud of it, in a way.

Ray: Oh, yeah, yeah, yeah. He wore Panama hats. He was quite a character around town. People thought he was the Marlboro Man, but he wasn't. But he had that kind of flair to him. And the other referred to Elmore as the redheaded nigger. They put on no defense. It would have been better not to have had any...he had no lawyer. They put on no defense other than telling Elmore to testify, which set him up for being crucified by the prosecutor. They didn't talk to any witnesses, they didn't look for any evidence, they didn't talk to any professional people or any technical witnesses whatever. They just did nothing. I interviewed Geddes Anderson, who was the lead lawyer. I first interviewed him in like 2000.

Mark: The bourbon guy.

Ray: Yeah, the bourbon guy. And he said, "I believed the son of a bitch was guilty. I believed it then and I believe it now." And when I interviewed him for the last time — I interviewed him several times. The last time I interviewed him was like in 2009, '08 or '09, he said the same thing. "I thought the son of a bitch was guilty then and I still think the son of a bitch is guilty." Now, that's all right. You can think your client is guilty, under the canons of ethics for defense lawyers. But you're still supposed to put on a vigorous defense. They put on nothing.

Mark: It's almost amazing, reading it. There's a kind of narrative of what they did not do. When you give the account of the first trial, it becomes, again, almost unbearable what they did not do. So-and-so is on the stand, they hadn't interviewed them. So-and-so said this, they don't ask the question. They don't ask the question about chain of custody. All of this tainted evidence, and some of it clearly was planted evidence, they don't even — it's not a question of them not discovering it, it's a question of them not questioning it at all. I mean, what do you think their...? There is a sense in which it's almost unbelievable.

Ray: I mean, it is. It's tragically unbelievable. I've stayed away from writing this in the book a lot, or emphasizing it, but the more I talk about the book in various forums, people say it's racism, and that's what it is. It was a small town, Greenwood, South Carolina, 1982. The schools had only been integrated like in 1969, as I like to say, with all deliberate speed. It had been rather slow in reaching Greenwood, South Carolina. But even today, you know, you ask, well, how much racism was there then? Even today the war memorial in the center of town is divided, the plaque for World War I and World War II is divided between whites and blacks or whites and colored.

Mark: Whites and coloreds.

Ray: Yeah, whites and coloreds. And one of the leading town lawyers — I'm sure he's the only card-carrying member of the ACLU — tried to get the plaque changed, and he went to the mayor—

Mark: He said he'd pay for it, right?

Ray: Yeah, he said he'd pay for it, and wanted to have it changed so that everybody was listed alphabetically. And the American Legion post said no. So if that's their attitude in 2012, you can imagine what it was like in 1982. Look, it was easy. They had a black guy, 23 years old, there wasn't going to be any muss, any fuss, they could get it over with. Ninety days it was done.

Mark: But when you say — I just want to try to break it down a little. And clearly racism flows through the book, and that is a major theme in the book. But when you say the lawyers — let's just talk about the lawyers for a second, the defense lawyers — that they were racist, and it clearly seems to be the case, what exactly does that mean? Do you think they really did believe that he did it?

Ray: Yes. There's no question in my mind they believed he did it.

Mark: And it didn't have anything to do with the evidence.

Ray: No.

Mark: They just kinda thought he did it.

Ray: I think they formed the judgment right away.

Mark: So gathering of evidence, all of the stuff that you examined so closely, that Diana Holt examined closely and that you do as well, following her, this stuff kind of didn't mean anything to them, basically?

Ray: No.

Mark: They just thought it was kind of decoration?

Ray: I really think with them it was racism. With them. I think it was just the... You know, a black guy, a white woman is murdered. He'd been in the house. They just...they never...I don't think they ever questioned their... I think when Geddes Anderson told me, the Bourbon Cowboy, "I thought the son of a bitch was guilty then and I still think he's guilty," you know, this was 18 years after the trial, the first trial, when I first met him, in spite of all the evidence that had come out by that time that had been uncovered indicating that he wasn't guilty and that he was innocent, I just...I don't think they ever questioned it. You know, they're lazy...

Mark: Also, investigating it would have meant looking at this guy — we should say there's a man, another key character in the book is Jimmy Holloway, who was her neighbor, the victim's neighbor, Dorothy's neighbor, who, it was rumored, perhaps was involved with her, and who was the one who discovered the body. Not only discovered the body, but was then permitted to come back in. I mean, again, it's kind of...even as I talk about it, it's kind of amazing.

Ray: No, no, no. I mean, the story of Holloway — Holloway is her next door neighbor, and by all accounts, they'd been having an affair. Yes, old people have fun, too. [Laughter.]

Mark: Good to know.

Ray: It is, let me tell you. And Holloway... Actually, this friend of mine I had lunch with today kept saying, that was the thing he, 'cause he's up in that age category with me, you know, over 40, and he was saying what he liked most about the book, he kept going back to it. He said, "You know, it's amazing. This woman was 75 years old. She's having an affair with the next door neighbor and she was about to go off that weekend to her boyfriend, and they were talking about getting married." I mean, this friend of mine—

Mark: The negligee in the suitcase.

Ray: Exactly, negligee in the suitcase. This friend of mine I had lunch with thought that was the best thing about the book. [Laughter.] I said, "I think this other thing, Gary, you ought to be interested in." But she was, she was going out of town, and Holloway knew she was going out of town. The way he testified, on Monday he saw her car in the driveway, he walked over. He walked in, the door was ajar, he walked in. He sees on the floor in the kitchen needle nose pliers and a partial denture. The coffee pot's on, but the coffee's burned in the bottom, the television is blaring. He goes to her bedroom. The alarm clock is blaring. He sees all this blood in the bedroom. He notices the closet door ajar. This is his testimony. He walks back through the house, goes outside, goes next door to get Mildred Clark, the recluse neighbor who wouldn't even come out for trick or treat, on Halloween wouldn't even answer her door, gets her. They walk back, they go into the house, he goes to the closet, he takes out a pair of gloves which he conveniently has in his back pocket and opens the door. And then he calls the police.

Mark: Yeah.

Ray: I mean, you know, if there was any... When Diana Holt read that testimony 13 years later, or 11 years later when she got the case, she went running down the hall to her supervisor and said, "You've got to let me talk to Holloway." I mean, it was so obvious that he should have been the first person. I mean, police work 101 tells you you talk to the person who found the body. And they not only didn't interview him, as Mark said, they let him go back in the house the day after the body was found and clean it up.

Mark: Unsupervised, clean up the crime scene.

Ray: Unsupervised. He'd already cleaned up the crime scene, by the way. That's why there was no, you know, it was so clean. The house was so nice and clean. One of the great things is at the trial, when the police said they only found six fingerprints, and the police officer admitted that was very few for a crime scene like this, where it had been so bloody, and it had happened in several rooms. And so the prosecutor said, "Well, why do you think there were so few?" "Well, Mrs. Edwards was a meticulous housekeeper." [Laughter.] Yeah, well, you laugh. It's pretty obvious. How did she clean up the house? But did the defense counsel ask, "Excuse me, how did she clean up the house after she was murdered?"

Mark: It should be said that Holloway was sort of a prominent, obviously a white man, prominent local businessman. And just to touch back on the racism theme for just a minute, because it always fascinates me. When you look at something that you see these actions taken by people who are in responsible positions that seem so...they seem evil, and you say how could these people, all of these people, do this? I mean, they have families. Why would they do it? And it seems to me one of the things we should mention here is not only the conviction that they thought Elmore was guilty, but they thought they were, in a sense, when you talk about the misbehavior, about planting evidence and everything else, they really thought they were framing the guilty. In other words, that insofar as they were doing things they shouldn't have done, they thought it was justified because he had done it, right?

Ray: I think that's probably right. Of course they would deny that they did anything wrong, they planted any evidence or whatever. But I think there's probably an element of that. I mean, I did have one police officer tell me, "I didn't plant the evidence." And I thought, well, I never even asked you if you did, but... [Laughter.] He volunteered that after he was feeding me peach schnapps in his house someplace in very bucolic South Carolina, at the edge of the Blue Ridge Mountains. He said, "I didn't plant the blood on the blue jeans." But he said, "That's against my ethical standards. I have certain ethical standards." But he said, "I do know police officers who have done it because they think the person is guilty, and so it doesn't make any difference. But I didn't do it," he said.

Mark
: So in a sense, they're preventing an injustice. The injustice would be the guy commits the murder and gets off, so without them planting blood or pubic hair, which is a key element in this case and is the most obvious planting of evidence, without that they would think, well, there could be an injustice, this guy could get off.

Ray: I don't think they want that far. Mark: No? Ray: I don't think they thought through it that...no. They had the guy. They knew, and it's complicated to explain, but they knew — I figured out now, talking with Diana and stuff, that they knew within 24 hours he was not the guy. They had two pieces of evidence which told them that Elmore was not the perpetrator.

Mark: Maybe tell what they are.

Ray: Well, it gets a bit complicated. In fact, I never quite spelled it out in the book directly, but it's in there throughout. Basically, they arrested Elmore — no, they took the body from Greenwood, which is over by the Georgia border, across the Charleston, which is the only place they could perform the autopsy. They found a hair. The autopsy examiner, the doctor said she found a Negroid hair on the victim's abdomen. Diana used to refer to it as the DNA hair, the "dead naked abdomen" hair. But also they quickly realized that they had these — they claimed they only had three fingerprints they could match. In fact, they had six. And they knew they weren't Elmore's, because right away they matched them up. They knew they had one by the back door that was Elmore's, but they had three others that weren't Elmore's.

Mark: The others were hers, right?

Ray: Well, no, wait a minute. That's the point.

Mark: I mean, the ones they couldn't match. Or could.

Ray: The ones that — well, they didn't know whose they were. They wanted to know, well, are they hers.

Mark: Right, right.

Ray: So they took the body to SLED headquarters. SLED is the South Carolina equivalent of the FBI, where they do the forensic testing and the examinations. Normally they would take the body back for burial, but they took it to SLED because they wanted to see if those fingerprints matched hers, and they didn't. And they also, at that same time, looked at that Negroid hair, and they realized it was not Negroid, it was a Caucasian hair. So they knew all this within 24 hours after the body had been found, before Elmore had ever been arrested. And that's why they had to swing into action with all this stuff which he's been referring to, the pubic hairs on the bed. And this Negroid hair they quote, unquote, "lost." I mean, it disappeared for 16 years. Which was a white hair. But they knew within 24 hours. I didn't figure this out until well into the book. I'd been working on it for a long time. I mean, this book has been 12 years in the making, ups and downs and ups and downs, and more downs than ups. And I didn't really figure it all out until very close to the end when I was writing it exactly what had happened.

Mark
: So in other words, basically they're confronted right away with evidence that goes against their theory.

Ray: Right.

Mark: So the question is — or the guy they want to arrest. This was before they'd quite arrested him, right?

Ray: Right.

Mark: So what do you do with that evidence?

Ray: Well, what they did was — and let me come at it backwards a little bit. At trial, Jones, in his opening statement to the jury—

Mark: The prosecutor.

Ray: Yeah, the prosecutor, Willy T. Jones, who, by the way, was a legendary figure in the South, a great, great, great hellfire and brimstone orator who was a Blue Dog Democrat, and had once heard a young Yale law graduate speak at the 1972 Democratic Convention and offered him a job. This person turned it down to go into politics, Bill Clinton. And Jones's son still had the letter from Clinton turning down the job. Jones, during his opening statement, he's got an easel set up with all the scale drawings of the house, and he's flipping the pages. This is the kitchen, this is the den, this is this. And he gets to the bedroom, and he takes his pointer and sticks it to the bed and said, "This is the victim's bed, and on here we will show you 53 of the defendant's hairs were found." And then, for dramatic effect, he says, "I hope you won't be too squeamish when we talk about pubic hairs and things like that." So he says 53 pubic hairs were found on the victim's bed. First of all, if they did, it's a Guinness Book of Records, because the most you ever find at a rape scene is about eight or ten. You've got to ask yourself a 76-year-old woman is getting battered and beaten and sexually abused and she pulls out 56 pubic hairs?

Mark: Which was their theory, that she reached down and yanked them out.

Ray: Exactly. So then he puts Earl Wells, the SLED agent who examined the hairs, on the stand, and he said, "I hand you State's Exhibit 58 with the baggie with the 53 pubic hairs." And Wells said, "Sir, I think it's 49, and there's really only 42 because I took seven out to examine them." I mean, you know. But did the defense do anything with that? No. Not on cross examination, not in closing argument. Right away it was. And then later it turns out — I mean, I don't want to give away the whole book — but later it turns out it's clear these...there were no hairs found on the bed, period, full stop. So then you say, as somebody did the other day on my Facebook, one of the police officers, well, if there weren't any hairs in the bed, where did those hairs come from that they were DNA identified as Elmore's? Yeah, they were. Guess what, inter alia? Those hairs were not kept in a sealed bag while they were at SLED headquarters. Which means, first of all, they should have never been allowed into evidence. If the defense had objected, there's no way you can get those into evidence. Second of all, anybody, at any time, could have put those hairs in the bag. And that brings us to where did they come from? When Elmore was arrested, they knew, based on what I told you earlier, that he was not the perpetrator. They took out some head hairs, which they normally do, they pulled out some pubic hairs, which they normally do. They didn't just pull out a few. They kept pulling and pulling and pulling. They yanked so many hairs out of him, and those are the hairs. Because, it came out, that those hairs, when — later, in the hearing many years later, when Diana was involved, they asked the person, well, where did those hairs, were those in the...? "I don't remember where I put those." "Well, did they arrive at SLED in a sealed container?" "Well, I don't remember." No, in other words.

Mark: They hadn't.

Ray: They hadn't.

Mark: It's astonishing, because you realize early on that if he'd had a competent attorney that the case...I mean, if it had been brought, the case would never have stood up because there were just these extremely obvious — the original catalogue of evidence didn't include the pubic hairs, which you think, well, that's quite an oversight. And it was the part of the case that proved it for the jurors, that of course he was there; there were pubic hairs on the bed. He had to have done it.

Ray: Right.

Mark: Let me just ask you — I referred earlier to these supposed safeguards when it comes to capital punishment. Here's a guy who was on death row for 30 years, all of these appeals, all of this court action. Can you talk a little bit about the successive trials and the actual...the remarkable fact that essentially all of the mistakes and all of the trickery and all of the planting of evidence, in effect, it simply gets repeated again and again. It's astonishing.

Ray: It gets repeated again and again and, I mean—

Mark: The same lawyers.

Ray: Yeah. But even on appeal he doesn't get anywhere. He can't get a new trial. I mean, I...I think the popular, the perception among the public is that, oh, these cases, you know, lawyers come along and all these cases are overturned on appeal, and these guilty people always get off because... I mean, I think once a person is found guilty, as I say in the book — and I don't know if Liz would agree with this — but I think there's an almost inexorable line there that leads to execution. Very few cases get overturned on appeal and the person gets off death row or released from prison. It rarely happens.

Mark: Well, let's break that down. First of all, he did get two other trials.

Ray: Yeah, those were at the beginning. But then the appeals. So you have two trials. It was overturned on a, quote, unquote, a legal issue. The judge went into the jury room to answer a simple jury question, and Elmore wasn't taken in with him. Now that's the kind of thing that many people say, oh, my god, he gets a new trial because of that small technical error, if you will. And I think that enrages a lot of people, particularly pro death penalty people. The second time it was overturned because of some Supreme Court decision on who is allowed to testify. But the point is, those three trials, as you say, were absolutely identical, Mark. I mean, there was no change, so the injustice—

Mark: Even though he asked for a different lawyer.

Ray: Well, he asked for a different lawyer and, you know...

Mark: They gave him the exact same lawyers.

Ray: The same lawyers, because they were very competent lawyers. That's what the judge said. And then you fast forward 11 years, and that's when Diana gets the case. And Diana and a New York lawyer named Chris Jensen, who lived up to the highest standards of what lawyers should be, was a New York lawyer, made a lot—

Mark: Corporate lawyer.

Ray
: A corporate lawyer. Yeah, a corporate litigator, and decided there's more to life than dividing up rich people's money and helping rich people get richer.

Mark
: A very strange point of view.

Ray: Yeah, I know. I went through that in law school down in the...[which we won't mention], what I think I got out of law school, wanting to do the same thing. Somewhere along the line I went astray or whatever. You know, it always amazes me, if I can be crass, for just a second, it always amazes me that conservatives think law schools are haunted by all these liberal professors. Bloody hell, if that's the case, why do so many law students finish and go to work for corporate law firms or big corporations? I never quite squared it. Nick Kristof and I once had this discussion. He wrote a column about all these liberal lawyers in the law school. And I said, "Nick, if that's the case, how come there are so many corporate lawyers coming out of law school?"

Mark: This is true. But I should say, again, that the book has a lot in it for the redemption of lawyers, basically.

Ray: [Laughs.]

Mark: Jensen himself, who 20 years later says, you know what, I have to do something else besides doing what I'm doing. I have to go down — and he gets involved very dramatically in this case, a corporate New York lawyer. And of course Ray himself, as I say, who's a redeemed lawyer now. Or a fallen lawyer, or a redeemed lawyer. Anyway, we were talking about the appeal.

Ray: Somebody asked me the other night which of my professions do I have the least regard for, journalism or law.

Mark: [Laughs.] It's a hard question. I hope you said no comment.

Ray: Well, since we did such a wonderful job post 9/11, and the lead-in to the Iraq war—

Mark: That's right.

Ray: Obviously journalism has been in its shining moment, Mark.

Mark: Good times.

Ray: Yeah. [Laughter.] Anyway, that's a different topic.

Mark: Jensen, the appeal.

Ray: Well, and so they had a hearing in which all of this came out.

Mark: So he's been in jail 11 years.

Ray: No, by that time he'd been in jail for 13, when the hearing came, in 1995. And Jensen just destroys all these cops that had testified at the trial, and brings out all these inconsistencies, makes it very clear that there were no hairs found on the bed, that there were more fingerprints than three, they weren't Elmore's they weren't hers. Aha, that means another person in the house. The Negroid hair wasn't a Negroid hair, it was a white hair, it wasn't hers. Aha, it suggests another murderer. And the judge says, no, you don't get a new trial. The judge adopted the state's arguments verbatim. Judges are supposed to write opinions. The judge took the brief, the state's brief, and wrote it as his opinion. Was so lazy that he didn't even — he said "in this brief." Well, excuse me, you're not supposed to be writing briefs, Your Honor, you're supposed to be writing opinions. [Laughter.] More than once he said "in this brief" on page blah-blah-blah. Well, they're not supposed to... And then he said, and he literally verbatim — he didn't correct a typo, he didn't correct a comma misplaced, nothing.

Mark: It is a real...it's excruciating, and it's also you think, God, power is something. He had the power. And it doesn't matter that you're watching the case fall apart in front of you. And there's some narrative satisfaction to this. You're reading the book, you're finally seeing — Jensen comes in, dismantles it. It's not just that he's a brilliant lawyer. He's a competent lawyer. And so you see it, and you take this narrative pleasure, it's finally happening. And then in fact, the logic of it, the truth of it, by this time — and I think this is the point to make here, maybe — by this moment, the truth of it doesn't matter anymore. What matters is who has the power.

Ray: The truth didn't matter from the get-go. I mean, in one of the reviews of the book by Jonathan Yardley in the Washington Post, he quoted something that I had said, that the role of the prosecutor is not to get a conviction, the role of the prosecutor is to do justice. And that's a really meaningful standard. It's not just empty words. And as Yardley pointed out, from the first prosecutor to the last, nobody lived up to that standard. They wanted a conviction from the get-go, and on appeal they wanted the conviction to be upheld.

Mark: Just to skip ahead slightly, one can go farther than that and say that — is it Herrera? What's the case? Herrera is the...

Ray: Innocence case.

Mark: About innocence. That in fact — well, I mean, you should summarize it, I guess. Innocence is not the determining factor.

Ray: Innocence is not enough. I mean, it's that simple. You can bring in evidence that you're innocent, but it's not enough to get you a new trial. You have to show that one of your Constitutional rights were violated. Innocence is not enough. All the evidence in the world that you're innocent isn't enough. And there's Supreme Court case after Supreme Court case. And there was a famous case in Missouri in which a guy named — I always get it wrong — is it Amron or Armine?

Liz: Amrine.

Ray: Amrine. In which, when it got up to the Missouri Supreme Court, two justices were just astonished that a state attorney general is arguing, "Well, Your Honor, even if the DNA does show he's innocent, he's not entitled to a new trial." And, you know, two justices — "Are you saying that even if we have evidence, positive evidence that he's innocent, that he's not entitled to a new trial?" He said that's what the Supreme Court has said. Innocence is not enough. I mean, that's what I call the second half of the book.

Mark: There's an amazing...it's the dissent by, what is it, it's Blackmun, isn't it, who writes that knowingly executing a man who you know to be innocent comes perilously close to the definition of murder.

Ray: Right.

Mark: That's not verbatim, but it's close.

Ray: No, it's close.

Mark: You read that and you think, my God, that's absolutely right. I mean, what is it to kill somebody who you know to be innocent, and what else can you call it but murder?

Ray: To say nothing of what else...I mean, I think the whole thing about the death penalty, and you can have the debates all you want to about the morality of it or the effectiveness of it or whatever, but to me the strongest argument against the death penalty was made to me by the Wisconsin district attorney who prosecuted Jeffrey Dahmer, the guy who carved up little boys and girls and flushed them — you know, horrible, horrible, at least 17 victims. I think that's what he was prosecuted for, 17, and I think there were—

Mark: There were more.

Ray
: I don't remember how many. There were a lot more. And I remember when I interviewed the Wisconsin district attorney back when I was writing about the death penalty for the New York Times, even he, who had prosecuted that, he said, I just don't want the state taking somebody's life. And I really think that's what it comes down to. I just, I don't think the state ought to take somebody's life. I live in Britain now, and Britain doesn't have the death penalty. They don't even have life without parole. Murderers get 25 or 30 years and they're often paroled. Not often, but occasionally paroled.

Mark: Let me ask you something about that. And we should, before we take questions, I guess, get to the end of the story as well, so people know. But the point you just made, I was perplexed by the end of the book. I thought, on the one hand are these astonishing injustices part of the criminal justice system? That is, they're reflected also in lesser crimes? In which case, to kind of say we shouldn't do this because the system is unjust is, in a sense, kind of ducking the major issue, which is the whole system should be fixed. Or are we talking about the fact that capital cases, because they tend to be politically so potent — for example, this case, this member of the community, distinguished, well off, well known lady in the community is killed. There's enormous political pressure to do something about it quickly, and a horrible crime. Does that kind of political pressure and high profile attention result in a great degree of...a greater degree of injustice, put it that way? I mean, are we simply seeing a reflection of the way the criminal justice system works, pervasive injustice throughout, or are capital crimes simply different?

Ray: Well, death is different, as one of the justices once said. Blackmun, I think. Was it Blackmun who said death is different, or Stevens? I think some things in the system need to be changed. The ABA, for example, has improved the standards, but they're still not high enough.

Mark: Standard for?

Ray: For defense counsel in capital cases. They've now got certain standards, but they're still not high enough. And I don't know what Liz might think about this, but I one of the things I've thought about, money comes from the federal and state governments for appeals, the death penalty resource centers. I think they need to pour more money into the trial level, and that's where you need to get the Chris Jensens and the Liz Semels, and the Diana Holts and the people doing the work, is at the trial level. And the other side I think we've got to look at, that I come away from this case, is the prosecutorial side of the cases, because I think there's — and I've really thought about this a lot in the last six months to a year, probably more than ever before. I had focused on the defense side of it as well, because we know about drunken lawyers, and sleeping lawyers, and the famous Fifth Circuit opinion that just because you're entitled to a lawyer doesn't mean you're entitled to a competent and effective lawyer. No, I mean, the Fifth Circuit really said that.

Mark: It doesn't even say the lawyer has to be awake.

Ray
: Yeah, right, awake or...

Mark
: Nowhere in the Constitution.

Ray: Or sober or anything else. I mean, many a person has been executed because his lawyer was drunk during trial. More than one. But I think we've got to do something on the prosecutorial side of things. There is an ethic. Unfortunately, it is to win. And I think they want to win in court as badly as, I say, on the tennis court or the basketball court or anything else. And that is not the role of the prosecutor, but most people don't realize it. I mean, I had a talk at Politics and Prose the other night, Mark, and a guy got up and he goes on and on about it. He said, "What do you mean the prosecutor's role isn't to get a conviction?" This was a very educated... And at the end of it, I read him some things in Supreme Court decisions in elsewhere. He said, "Wow, I didn't know that. I thought their role was to get a conviction." Mark: This is in Washington, D.C. Ray: Yeah, yeah. In the book I recount there was a prosecutor in Los Angeles in the early '80s named Steve Trott, who's now on the Ninth Circuit Court of Appeals. And the story that these lawyers used to tell in the DA's office was the young lawyer who went to him once and said, "Steve, I've got a problem. I think my star witness is lying. I've got an ethical problem." And Steve said, "You don't have an ethical problem. Dismiss the case." And that just doesn't happen. Once the prosec—I mean, the DSK case—

Mark: Dominique Strauss-Kahn.

Ray: Dominique Strauss-Kahn. I think the prosecu—I mean, I get in trouble for saying this, and I say it for effect; I don't know that I'd go this far. But I think he may have been right in dismissing it. He was certainly not right in the way he handled it. But at the point you think, you know, my witness is lying — now, maybe he shouldn't have thought she was lying. That's a different issue. But that's the hardest thing for a prosecutor to do, and particularly on appeal, when you've already got a conviction. In this case, they knew — I mean, God almighty, you don't have to have an IQ of above about 60 to realize the guy was innocent. But the state attorney general's office was not about to allow the case to be overturned. They were not about to say we made a mistake not once, but three times. And I think there's this prosecutorial mindset that has got to be changed, and if we're not going to do that, you've got to have some prosecution of... Look, we were talking earlier, there have been a lot of cases lately about Brady violations. The famous case in Texas, Michael Morton who got out after 25 years because the state had withheld evidence which showed he was innocent. Then a month later there was a case in the Supreme Court out of New Jersey — no, no, Louisiana, and his case was overturned because of a Brady violation. Brady is a Supreme Court decisions, Brady v. Maryland, which says the prosecution has to turn over to the defense all potentially exculpatory evidence, which in this case would have been this famous Negroid hair found on her dead, naked abdomen. In those cases, they didn't turn over the evidence. In this case, they planted the evidence. But during the arguments in the Smith case it turned out there have been 13 cases, at least, in the last six, eight years in which the DA in New Orleans has been reversed because he withheld evidence. Violation of Brady. Never once has a prosecutor been sanctioned. And the Northern California Innocence Project looked at something like 800 cases of prosecutorial misconduct. Six times has the prosecutor been sanctioned by the bar.

Mark: So if they're not going to be punished, where's the disincentive?

Ray: Where is the disincentive?

Mark: Because after all, the incentive on the other side, these are elected officials.

Ray: Exactly.

Mark: You have a high profile murder, this guy is being paid to find who did it, punish them, and keep the community safe. And the longer that case is open, the more political pressure that's on him. So what's the countervailing pressure to do his job in the right way?

Ray: That's why I say in this case, if there is not a federal investigation, if these cops aren't made to testify — and as I say, although riskily in this law school at this moment — I don't need waterboarding to get to the truth of this case. You give me a subpoena power and a grand jury, and I could get an indictment of at least four policemen. It is so clear they lied. So clear they lied. And anybody who's been a prosecutor knows or a defense counsel knows how you do the case. It's clear who the bottom guy is you go to first and say, okay. Or the FBI. Because the FBI — if there's not a federal investigation of this case, if the Justice Department doesn't do something in this, they're never going to prosecute [anyone].

Mark: But is there any indication there will be an investigation?

Ray: Not as far as I know, but it's only recently that, you know.

Mark: We should tell the end of this, or at least the current state of the story, the developments that happened since the book was actually published.

Ray: Right. Well, what happened was the Fourth Circuit, last November, issued a staggeringly surprising opinion, 163 pages, the Fourth Circuit, which has historically been one of the most conservative in the country, and just excoriated the police and the SLED agents. Used the words "deceit" and "dishonest." I mean, circuit courts don't normally do that, federal courts, when talking about state officers, state police. And also said Holloway was the likely perpetrator, and ordered a new—

Mark: It said that in the opinion?

Ray: Yeah.

Mark: Oh, amazing.

Ray: Yeah, it was amazing. But also said deceit and dishonest when talking about the police conduct of the case.

Mark: Incredible.

Ray: Now, what more does the...I mean, the DOJ doesn't need my book to bring it. I mean, that alone ought to get a DOJ—

Mark: Well, why did that happen after 30 years?

Ray: Finally, finally, finally it was the first — nobody can figure it out. There was a very good brief they wrote, and finally there were two — there was a minority justice who thought it was outrageous that he was going to get a new trial. Who knows why it happened after 30 years? They finally persuaded a court. So they set a new trial. At that point, the state of South Carolina could have said, okay, we've seen it, we're going to dismiss the charges. Oh, no. They said we're going to try him again.

Mark: The fourth time that would have been.

Ray: We're going to try him again. And I get a little uncomfortable here because my mother taught me not to toot your own horn, but it turns out that there was going to be a hearing in the case on March 2nd. And about six, seven days before the prosecutor called up one of the lawyers, not Diana or Chris, but another lawyer, and said I've just read this book. And after he had a few scurrilous comments about the author and said he didn't really agree with a lot of it, but he said he was troubled by a few things, like the blue jeans and the hairs on the bed, and was there possibly any way to settle the case without another trial. So the negotiation — and so Elmore, ten days ago, on March 2nd, 12 days ago, two weeks ago, I was there. I went down to Greenwood, was in court, and he entered what is called an Alford plea, which is a legal maneuver where you plead guilty. You say I'm innocent, but I'm pleading guilty to avoid another trial or to avoid a trial in the first place. And he was there in court, and it was an excruciating moment because he knows he's innocent, Diana knows he's innocent, but he had to plead guilty in order to get out of jail. And as I say, to borrow from Barry Goldwater's campaign, none dare call it justice. And he pleaded guilty to a crime he did not commit to get out of prison after serving 30 years for a crime he did not commit. And it's still anatomy of injustice. I mean, none dare call it justice, in my view.

Mark: Do you think they would have been able to convict him again after all this?

Ray: No. No way.

Mark
: So were they at all tempted to do...were there discussions about going forward?

Ray: Oh, sure there were. And I had long talks with the lawyers about it, because your question is why. And I've had people say to me why in the hell did they take the plea? And I was probably of the view that they shouldn't. The state, they know they're not going to re-try this guy, and if they did, I'd get my bar card back and become a lawyer again so I could cross examine some of the police. They said, look, the state hasn't played fair three times, they've cheated, they've lied. We couldn't get relief in the South Carolina courts. We were turned down every — and the Fourth Circuit came through, but until then every South Carolina... Even if there's only a one percent chance that they would not play fair again, we can't take it. This man has suffered enough, and we want to get him out of prison.

Mark
: Thirty years. Ray: Thirty years. More than half his life.

Q: ___ how this figures in, too, the debate about the execution of mentally retarded people, because—

Mark
: That's a good question.

Q: ___ brought the center, but it hasn't really come up, and the layering away of the death penalty, and the arguments. And now there's this whole kind of a, like a media movement to kind of [revisit] the topic.

Mark
: The death penalty?

Q: The death penalty.

Ray: Right.

Mark: Yeah, it's a good question.

Ray: The media interest in the death penalty waxes and wanes. In 2000, everybody was writing about it. The Chicago Tribune did that great series, and then the New York Times did, and newspapers all over the country. But mental retardation, I'll just say one interesting footnote. Sara Rimer and I, who I mentioned earlier, when we went to Texas, one of the guys we interviewed on death row was a man named John Paul Penry, who had an IQ of 51, and it was right before Christmas, right before Thanksgiving, and we asked him if he believed in Santa Claus. And he said, "Well, I'm not sure. I've heard about him. Yeah, I think I do." And the Supreme Court, both the majority — we subsequently wrote an article about executing the mentally retarded, and the Supreme Court, both the majority and the dissent, cited the article in their opinions, in the case Atkins v. Virginia, which held that's unconstitutional to execute somebody who's mentally retarded. And actually, Elmore got off death row on a mental retardation claim in 2009. He finally got off death row because after Atkins, people could file their claim saying they were mentally retarded. And he got off death row.

Mark: I think you refer to this, that in a sense, the death penalty is evolving in such a way that there are increasing numbers of groups who are excluded from it. On the one hand, you get states stopping it, Illinois being an obvious recent example, but you also have groups, mentally retarded and juveniles as well, under 18, who are being taken out of the pool of possibilities. Do you think this process is going to continue? I mean, are we looking at a kind of shrinking...? I mean, some people who are optimistic about this, Andrew Cohen, for example, who reviewed your book, believe we're in the middle of a movement that's slowly going to simply eliminate it bit by bit.

Ray: Well, I think that — I mean, Liz, again, could speak to this much better than I could — but I think the death penalty lawyers and the academics, etc. who, after Furman and then the states — Furman, which held the death penalty as it was being administered was unconstitutional, not per se.

Mark: This was '72, right?

Ray: Yeah, this was '72. And then the states all rewrote their laws. And I think the death penalty community writ large or small decided we're not going to be able to overturn the death penalty totally, so we're going to chip away and take away categories — juveniles, mentally retarded, and I think you couldn't have the death penalty for rape, or maybe that was already before Furman. So I think that's it. But where are we now? Are we likely to eliminate the death penalty? I've been talking to a lot of people. I think we're close. I was talking to one of the real leaders in the death penalty field, Jordan Steiker, who's a professor in Texas, and he was pointing out that there's about six states now likely to repeal it — Kentucky, Nebraska maybe, Kansas, one of the Dakotas, Montana, Maryland.

Mark: I think California it's up, it's kind of one...

Q: In recorded history, there has never, at any time, been any indication, there is not one ounce of proof that the death penalty actually decreases crime. If it has any impact at all, it increases it. And I spent my career working in the criminal justice system, and one of my jobs was prison psychologist at San Quentin. And I knew people who were going through the process there. I knew there were a number of people who definitely were innocent of the crimes for which they were executed. The most outstanding, of course, was Caryl Chessman. We became very good friends while he was in.

Mark: Very famous case.

Ray: Wow.

Q: Caryl Chessman was very gifted intellectually. He was fighting, while he was acting as a criminal, against organized crime. At that time the police in Los Angeles were taking payoffs from prostitution and he was raiding the brothels and then leading the police on these wild chases through Los Angeles. But then they charged him with a series of rapes, which was not technically a death penalty offense, but they called it kidnapping. And he did not commit the crimes. I know absolutely. He did not have an attorney, was not allowed to call witnesses. But after the trial, the court reporter died, and his notes could not be transcribed, so Chessman handled his own appeals. But they used the prosecutor's notes. They did not use Chessman's notes or the court reporter.

Mark: It's quite a well known case.

Ray: Birdman of Alcatraz.

Q: So he had become a reformer in prison. We discussed books often, the books he was writing against the death penalty. And he was one of the leaders in reducing the support for the death penalty.

Mark: Do you have a question? Just because I think there are a few other questions here. It's fascinating. That case obviously is fascinating. I'm sure many people here know a good deal about it. Did you have a question, though, for our author?

Q: The other thing is what about the cruel and unusual punishment?

Ray: Well, that's the cause, you know—

Q: It's mental torture when they put people in a cage and lock them up for long periods of time, waiting for somebody else to decide whether they live or die, without having anything that they can do about this. I've seen their health deteriorate as they are conducted through this process.

Mark: Okay. Do you want to comment? Thank you.

Ray: You know, the question...in Furman there were only one or two justices who were willing to say it was cruel and unusual, per se. I mean, not even Justice Douglas, who was the most liberal on the court at the time, probably — well, maybe other than Marshall — would say that it was cruel and unusual punishment. Will the Supreme Court next time around? I don't know. This is my theory. If Obama gets elected and he gets another appointment, one of the four quote, unquote "conservatives," or even Kennedy, I think there's a good chance that the death penalty will be eliminated. I have people who think I'm naïve, and probably Liz does, but I think we're very close. Particularly if California were to eliminate it, and these other six states, I think you'd then have the viable essential standards, or whatever it's called.

Mark: It should be said that, for those who want some optimistic news here, I was just gathering some statistics before, and the number, actually, of executions is going down, the number of capital cases is going down. In 1999 there were 98 executions; 2010, 46; 2011, 43. Also public support, very significantly, to judge by Gallup and CNN polls, is also going down fairly significantly. Last year — I'll give you one other statistic — there were 78 death sentences passed last year, which is the first time since '76, since it was reinstated, that the number has been below 100.

Ray: Wow.

Mark: So you are, on the one hand, having a shrinking of the pool of people who are eligible for it, if you want to put it that way, you're having a shrinking of the number of states who will do it, including Illinois, New Jersey, New York, New Mexico, and you're having reduction not only in sentencing, but also in public support. Obviously, public support can change. Other questions?

Ray: There was one here.

Q: A lot of applicants for eliminating the death penalty are afraid that right before the November ballot another Jeffrey Dahmer is going to come about and all the people that were for the death penalty will bring that up as why we should never replace it with life without parole. So as another alternative to the death penalty, rather than life without parole, can you guys think of any other suggestions, if life without parole wasn't granted as a replacement?

Mark: Do you want to...?

Ray: You know, I don't...alternatives to the death penalty?

Q: If it wasn't life without parole.

Mark: You're talking about political, in a sense, political alternatives.

Ray: Offhand, as I say, Britain doesn't have life without parole. They sentence people to long terms in prison. And they have a hell of a lot lower murder rate than the United States does, so...

Mark: That's a very provocative question, and thank you for asking it. This book haunts me for a number of reasons, and one is...I covered the so-called market massacre in Sarajevo which, in '94, was a mortar shell that, when Sarajevo was under siege, killed about — well, about — 78 people, I counted them. And it was this horrible thing. And a day and a half later I went and interviewed Radovan Karadzic, who was the guy shelling the city. He was the leader of the Bosnian Serbs. He was living up in a chalet in Pale above the city. And wrote about this. And he's now being tried at The Hague. And if he is convicted — not just for that, but killing another 100,000 odd people or so, many of them in very horrible ways, if he is convicted, the worst that will happen to him is he will be sentenced to life in prison. And I must confess that one of the things I was haunted by in this book, when I think of the people in the Balkans that I know, and I know their attitude about this, that The Hague, are you kidding me? I mean, he killed my entire family, he killed these people, he killed those people. How can you claim that this is justice to have this long trial for this guy and then put him in this heated room, given books and good food for the rest of his life? How is that justice? And I always have trouble with that question, because, in effect, you don't get out of it by procedural means, do you know what I mean? It just comes down to a question of justice, justice, justice. And I confess that I have problems with that. I'm not saying that I think he should be executed. I'm just saying that I think when someone whose family was killed by this man — and there are 100,000 or more who can say that — asks me if this conceivably could be called justice, I have trouble giving them a positive answer to it.

Ray: But Mark, that's not the only place you and I have seen it. I mean, we've seen it in Rwanda, we've seen it in Iraq.

Mark: Absolutely.

Ray: I mean, good God almighty, I covered Bali 1 and Bali 2 and the bombings, and, I mean, you and I have, unfortunately, spent too much of our life seeing that. As I listen to you, I feel the same way. The McVeigh case here. I know people who were very much against the death penalty, and when the Timothy McVeigh case came along, they said, well, that's okay in this case. I just had this thought while you were talking. I mean, obviously I don't know. You know Radovan Karadzic a lot better. I suspect Radovan Karadzic, if he'd have had a choice back when he was doing it, if he said, well, if I get caught I'm going to be executed or if I get caught I'm going to have to spend the rest of my life in jail, he probably would have gone for execution. I don't think he's going to be very happy in jail the rest of his life.

Mark: Yeah.

Ray: I think in some ways...I don't know, but I suspect it's a deterrent, the possibility of spending the rest of his life in jail, because he's a soldier. He knew he might die anyhow in combat, you know.

Mark: Well, just to be clear, I'm not talking about it as a deterrent. I'm just saying as a matter of — and the issue that you raise about deterrence is a very salient one, but let's just forget about it and say what is justice, exactly? This fellow in Norway blew up a bunch of people, and then he went off to an island and methodically shot people.

Ray: But he won't be executed. Mark: No. And he methodically shot 70 people, most of them children who have families, and shot them in the head. And indeed, he will not be executed. Ray: I think it's spawned a movement in Norway to restore the death penalty. Mark: But it's interesting. Norway has, I think, a maximum of 20 — I think life in prison in Norway is 20 years or 25 years. There are probably people in the audience who know specifically. But there is, in effect, life in prison without parole. I mean, it's a limited time. Which does mean, if he is convicted, he will, indeed — he's in his what, early 30s, I think. He's a young man. He'll be out and walking around. And again, if a member of this family said, well, is this justice, I don't know whether I could answer that. Yes?

Q: Apart from selling lots of books and having great reviews, is there anything that you'd really like to see happen as a result of this?

Ray: [Eve], when I — we've known each other for years, even though we're very young — when I started this, I did start it, my...I was hoping that it might lead to his getting off death row. That happened before I finished it. I then hoped it would lead to his getting out of prison. That happened, in small part because of the book, I guess. Now I really...I make no bones about it. I would like to see some police prosecuting. I mean, I don't mind saying it. I'm not a vindictive person. I don't care that Holloway is found to be the perpetrator.

Mark: Who's dead, it should be said.

Ray: He's dead anyway. But even so, I have no...I don't care that they exhume his body and take fingerprint evidence and DNA evidence and prove that he killed her. I don't care about that. Even if he were alive, I don't think that would be my objective. My concerns have been Elmore, not Holloway. But I really feel strongly that these police officers... I cannot stress it enough. These guys lied under oath, and they planted evidence. I just think the evidence that that happened is so overwhelming. So I guess yeah, I'd like to see a federal investigation. If they investigate it and find out that I'm wrong, well then so be it, but I think there needs to be a federal investigation.

Mark: Well, and it should be said that's not vindictiveness. That's, as you pointed out earlier, if there's going to be any change, and if responsible officials are going to be deterred from doing this sort of thing, there needs to be some sort of real disincentive for them to do it. And if you can do it and get away with it repeatedly, there isn't any. And there's a real incentive, in some cases, like this one, to do it, which is getting reelected and clearing these cases. Yes, ma'am, just in the back? Did you have a question right there?

Q: Could you combine sentencing as in the U.K. with some sort of review of whether people are still dangerous, and if so, they could be kept longer, some sort of supervision after some horrendous crime is committed that would maybe continue for the rest of life and—

Ray: Oh, sure, sure.

Q: —to protect, something like that.

Ray: Sure. And I have to confess I don't exactly...I'm not sure they get out after 25 years in Britain. I mean, I think there are ways to keep them in jail longer. And now, with electronic tags, more and more, at least for non-serious crimes, they're letting people out of prison and making them wear the electronic tags. Yeah, I think any of that is reasonable.

Mark: Yes, sir?

Q: First of all, to your question about justice and what do you do with a Hitler or a Stalin or whatever, there's a distinction between retributive justice and restorative justice, which is a very big point. The other thing I was going to say is a question that I have — and I'm not a law student, by any means — you talked about prosecutors being essentially officers of the court for a search for truth. It was always my understanding that's everybody — the defense, the prosecutor and everybody is supposed to be involved in seeking truth.

Mark: Not the defense.

Ray: Not the defense. Your obligation, as a defense lawyer, is to get your client off. I mean, there's limits to what you can do, but the limits are far less than what the prosecutor can do. For example, if you're the prosecutor and you know a witness is telling the truth, you're not supposed to undermine that witness's testimony in cross examination. The defense counsel is perfectly free to try to undermine any testimony of any witness. The obligations are different. Because — you know, I used to have trouble understanding this, and the way I rationalized it, because I was a defense lawyer for a while in the military, and defended a lot of kids who were probably guilty, and they were acquitted — you're not just defending the individual. You're really defending the system. I mean, this goes back, you know, the reverse of Harry Truman's statement, you know, you take away liberty from those you hate, you take it away from those you love. By defending somebody who is guilty, you make damn sure that the person who's innocent is also going to get the best defense. That was the way I kind of looked at it. No, I think you're defending the system. You're making sure that the state is going to have to prove its case. And if you make them prove their case against somebody who's guilty, you're also going to make sure they have to prove their case against someone who is innocent. That's the way I look at it. And I think there's a lot of truth to it.

Q: I have a problem with John Henry Abbott.

Mark: A problem with what?

Q: John Henry Abbott.

Ray: You mean the guy in New York who...? Well... That was the guy that Mailer and everybody—

Mark: Yeah, who Mailer, Bob Silvers, a few others helped get out of jail. He then killed someone, a waiter. Yes?

Q: How were you received down there, and how are you received down there now? How do people treat you?

Ray: Well, I can tell you Mark and I have been a lot of places where I've been treated a hell of a lot worse than in Greenwood, South Carolina.

Mark: [Laughs.]

Ray: I mean, nobody was shooting at me. Mark: They gave him schnapps, you heard him before, peach schnapps.

Ray: Exactly. I mean, it was not...

Q
: Is anybody saying thank God you came to town and—

Ray: No.

Mark: [Laughs.] Let's not go overboard.

Q: —and right this terrible [wrong].

Ray: Not yet. I mean, although there are a couple of lawyers who have said — I mean, this thing that they didn't know about Diana's past. They didn't know about how the state had set out to smear Diana, which is all in the book in another chapter. But they said they're never going to talk to the state attorney general's office again until they publicly apologize to Diana, which is quite moving. But no, I mean, I had one moment where one police officer I called — no, I didn't call, I went and knocked on his door because this guy knows you don't call anybody. You better knock on their door because they can't slam it on you. He wasn't home, and his son was, and his son had been in the Marine Corps and had just gotten back from Iraq, so you can imagine how I played up my Marine Corps experience. We had a good talk. And I called his father that night at home, and his father thanked me for being so nice to his son, and then he said, "I'm not going to talk to you. I don't want you ever coming to this door again. I don't want you ever calling me again. Enjoy your stay in Greenwood." And I must say, I mean, and I admit, we have been in places where we are targets. I mean, these are thug dictators or thug whatever. I don't want to overdo it, but I never felt frightened like that in Greenwood. I never felt that somebody was going to kill me or run me off the road or something like that.

Mark: Unpopular, maybe, yes. That's a high standard.

Q: What happened to Elmore, and was the case ever continued?

Ray: He got out. He got out two weeks ago. He got out of prison. He's out now. He had to plead guilty under this thing called the Alford plea. Diana stood up and said he wasn't there, he didn't do it, but we're pleading guilty in order for him to get out of jail.

Mark: We had another question? Yes, ma'am.

Q: Is Elmore going to receive any compensation?

Ray: No.

Mark: He pleaded guilty.

Q: This man is now 53 years old, with a low IQ and uneducated. Is any assistance available from anybody? Is there any organization giving him assistance for how he can survive on the outside after this?

Ray: Diana is doing all she can to help him. As you can imagine, she's so totally committed. I mean, she has an ability, because of her background, to relate to these men on death row like no other lawyer can, and to hear her talk to them is just... The first time I ever met her, the first time we were walking down the street in Columbia, South Carolina and it had been raining, and she ducked in and she took off her sandals, reaching in her phone, pulls out her phone, pumps in some numbers, she gets Elmore on the line. She says, "Hi, Pokey-Wokie." And he says, obviously, how are you, and she says, "I'm just peachy. Oh, you're getting your buffed so you can get out of there on Friday night?" I mean, she just...it's unbelievable. And I'm thinking, what a minute, I'm a lawyer. Lawyers don't talk like that to their clients. So she will do anything she can for him. And he doesn't have anything, but he never had anything. He grew up in abject poverty. He's gone back to that abject poverty. His family's lived off the smell of an oil rag and it will probably be not much different for him, although there may be some developments that will get him some money.

Q: There's no systematic organization or procedure that helps people who have been wrongly convicted?

Mark: He pled guilty. Ray: Is there any organization that does? I don't think so. Not that I know of.

Q
: I understand that he pled guilty. It's just that there's...you just quoted Diana Holt that he didn't commit the crime, he's not guilty. He pleaded guilty so he could get out of jail. It's a miscarriage of justice. So in that regard, then if there is any existing organization, or is there one, let's say he didn't plead guilty, is there one for people like Hurricane Carter? I don't remember what assistance was made available to him when he was finally—

Ray: Not to my knowledge.

Mark: Yes, ma'am?

Q: It's really kind of a psychological question, which is you said very firmly that you thought that within 24 hours they knew they had the wrong guy. I guess this is somewhat speculative. Why do you say that so firmly? When I think of situations where people form a first impression and there's a sort of gut feeling that you know what happened. I've also heard before that police ethically do feel okay about framing someone they think is guilty, that that's kind of part of the ethics. It's wrong to frame someone who's not guilty, but it's okay to frame—

Ray
: Right.

Q: So think of people who do things like they decide the world's going to end on such-and-such a date, and the evidence comes in that the world is not ending, or it hasn't ended. Then there's usually all this recalculation, like you look at the Mayan calendar again and you see, well, I really calculated it wrong, but now I've really [got the date]. What I'm saying is, in a sense, why are you so hard on them?

Ray: Because the evidence is clear. The body was taken there. He looked at that Negroid hair, and somebody later testified you don't even need a microscope to know that it's not Negroid. And that evidence quote, unquote, "went missing," disappeared, was never introduced into evidence. This is different from the hairs on the bed, by the way. And the reason it did is because they knew it was a white hair, so they hid the evidence for 16 years. So they knew that, and they knew they had three fingerprints that weren't Elmore's and weren't the victim's, and one of those fingerprints was on the underside of the toilet seat in the victim's bathroom. And as Diana loved to say, what do men when they got to urinate? How do they lift up the toilet seat? So they knew. They had two things right there that pointed to somebody else. The hair wasn't Negroid, it was white, and a fingerprint that wasn't Elmore's and wasn't hers. They had nothing on him other than the fingerprint by the back door, which they said had been put there legitimately. Mark: I just want to put in here, having heard you talk about it and having read the book also, your interpretation is supportable by the book. It's not necessarily by the author, because he's standing here, or sitting here. But the book allows for a slightly different interpretation, which is that they decided early on that this guy had done it, and they then essentially — I can understand how they might have said to themselves, you know, there are these three stray fingerprints that are going to screw up the case. They could be from anybody. In other words, they didn't have to say this is the killer. They could have said, well, these could be from anybody. And this stray hair, this could have been from anybody. I mean, I agree also that—

Ray: No, I understand.

Mark: So there's some room for what you're saying and I'm kind of sympathetic to it.

Q: It's a question. It's an interesting question. How do you get inside the mind of—

Ray: Exactly.

Q: —the course of events that leads to somebody...policemen doing things that they shouldn't do.

Ray: It's impossible when they deny that they did anything wrong. But I understand now that you...back and forth with you and Mark how this other interpretation is possible.

Mark: The rejoinder to what you just said is you shouldn't have to get in the mind. You have rules that they're supposed to follow, so you shouldn't be getting inside the mind. If they followed the rules, this would not have happened. So while I think the discussion we're having is an interesting one, and as I said earlier, it provokes me, why do people do these things, it's also the case that the rules themselves are kind of acknowledgment that people do these things, and you're not supposed to do these things, they're wrong. And they do them, but they're not punished for them now. But in fact they violate, very dramatically, I mean, the kind of violation of the rules of evidence in this case is astonishing. It should be emphasized Ray has given a very kind of basic recounting here, and the characters, the twists and turns of the story are much more elaborate and provocative in the book, as are many of the characters, I should say, as well.

Q: Is there a kind of condition of this case which sort of speaks to a more universal — what was the term — sociology of this [account] that would make it unique or not unique?

Ray: Early on they would have loved me to have written a Midnight in the Garden of Good and Evil and make Greenwood Savannah. I didn't think that was the story and I wouldn't be capable of doing it anyway. I don't know that there's anything different, I really don't.

Mark: It strikes me that it's not unique.

Ray: Yeah, probably not. Probably not.

Mark: I think one of the strong virtues of the book is that, at least for this reader, it appears to be something that could have happened anywhere.

Ray: I think that's true.

Mark: Yes, sir?

Q: I'm somewhat familiar with the atrocities and massacres in El Salvador and Central American involving the death squads and School of Americas, and to me that's a really huge expose and whatever. But some people might say that the case of one individual is nowhere near as important as that. However, I guess it does...I mean, you're pointing out the deceit, the cover-ups in this case, and it does point to probably hundreds of other cases that should be questioned. And I guess that's your main purpose here.

Ray: Yeah, well, it's...this case was very compelling. This story was very compelling. There are other innocent people on death row, I suspect, I know. But I don't think there's a case like this that has all the elements, as Mark was saying, plus has a Diana Holt. I mean, I could have written another book, I suppose. I could have. But, you know, my — I don't know how Mark feels about this, but people ask me about writing a book, and my stock line is you can only write a book when you cannot not write it. It's got to be in your guts [looming] to come out.

Mark: I'm going to use that line.

Ray: You've used it?

Mark: No, I'm going to use that line.

Ray: Somebody quoted it back to me the other day. But that's true. When people ask me about writing a book, you can only write a book when you cannot not write it. It's got to be in the gut. Because it isn't easy. And it isn't even always fun. I mean, this book, I mean, bloody hell. First of all, I couldn't get a publisher, because nobody wanted a death penalty book. Then 9/11 came along and nobody wanted anything else. And then I got a contract, and two days later Grisham announced he's going to write a nonfiction book about an innocent guy on death row, and not my guy, but you think anybody's going to publish a book to go up against that? And then somebody else — I never could give it up, and somebody offered me money, and then there was a glitch in what happened, and I had to drop it again, and blah-blah-blah.

Q: Well, I really appreciate your passion.

Mark: [Laughs.]

Ray: Yeah, well...

Mark
: I'd call it compulsion. [Applause.]

Ray: A low threshold of outrage.

Mark: Why don't we do these two more here. Yes, ma'am?

Q: About the mental retardation. I'm also a psychologist. I see familiar faces over there. Anyway, so was it that Elmore was put off of death row in 2009 because that's when South Carolina ruled that you have to be mentally retarded, otherwise you'd be executed? Or why did it change in 2009?

Ray: The Supreme Court ruled in 2003 that the categories, as Mark said, excluded, that you could not — Atkins v. Virginia — you could not execute somebody who was mentally retarded. So that was that ruling. So then each state could set up the procedures for how you established whether somebody was mentally retarded. And Diana and Chris Jensen, or Diana, basically, brought this claim of mental retardation which was then heard through the courts. The state fought it all the way. And eventually that was really the first ruling in Elmore's favor. Judge Hays ruled that he was mentally retarded, so that's why he couldn't be executed. Mark: And the state sent someone to examine him from the state...

Ray
: Right.

Q: And that's another question. So it was legal before then?

Ray: Right.

Mark: Yes.

Ray: Until 2003 it was.

Q: And you have to evaluate [any]...so in 2001 it was legal, okay.

Ray: In 2003 is when it was declared unconstitutional. But they tried, in Texas, John Paul Penry had an IQ of 51. The state tried him three times they were so determined to execute him.

Mark: And of course Governor Bill Clinton, earlier mentioned, ordered the execution of Ricky Ray Rector.

Ray: Who was brain dead [already].

Mark: During the campaign in '92. Marshall Frady wrote an astonishing story in The New Yorker about that, if you're interested in this issue.

Ray: This guy was so brain dead that he went to his execution and he left his ice cream because he said I'm going to come back and eat it. He didn't even know. Bill Clinton executed him. [Talking about] my passion and outrage.

Mark: I think this will be the last one. Yes, sir?

Q: I can't not resurrect the question earlier from the front row about what recourse Elmore has. I have extensive familiarity with Alford pleas, going back about 40 minutes, to when you first mentioned them. Does he have any latitude to have that vacated, or is there any prospect for a civil suit to somehow recompense him?

Ray: No prospect for a civil suit. And I think the only way it could remotely possibly happen would be if there was some huge international campaign. But is Nikki Haley going to be responsive to that kind of an international campaign? I doubt it. And also I think what happens is, look, you know, Troy Davis, there was a big campaign for him because he was going to be executed. The West Memphis Three there was a big campaign for — I'm not being cynical, but this is the reality — there was a big campaign for them because they were still in prison. I think if Elmore had still been in prison or on death row...I mean, I'd already been contacted by some people who were going to start campaigns to get him freed. I think now that he's free, I think people are not... I mean, you could have, hypothetically you could have an international campaign that brought all the heavy hitters to have him exonerated, but I can't see it happening. I can't see it happening. The only thing I think that might happen, could happen to bring some modicum of justice would be if there's a federal investigation into the violation of his civil rights.

Q: Or wait for the movie? [Laughter.]

Ray: Well, yeah, that's a possibility. I'm not sure the movie will make any difference.

Mark
: I want to reiterate what I said earlier, which is there are some positive signs here when it comes to lesser numbers of death sentences, numbers of states that are stopping the practice, are repealing the laws and doing other things to stop the practice, so this is a moving, changing issue. And I should say, again, that this book, though you've had a rather vivid rendition of the basic plot tonight, there is an awful lot more in it, particularly about these vivid, extraordinarily vivid characters. When Ray talks about a compulsion to write a book, the inability not to write the book, which I think was extremely eloquent, and I'm going to use that myself, I think of the characters in this book. Diana Holt, the prosecutor, several of the people in it are absolutely unforgettable, so I would urge you, if you haven't read it, to get a copy and read it, and maybe even Ray will sign it for you, if you're nice to him. This has been a rare privilege, honor, and also a pleasure for me, so thank you for coming. And please join me in thanking Ray Bonner.

[Applause.]

[End of recording.]


276486973_100
Raymond Bonner discusses his new book with Mark Danner, in an event presented by the Berkeley Law School Death Penalty Clinic and the Graduate School of Journalism. 

Return to the Speaking Page




© 2019 Mark Danner