Raymond Bonner’s Anatomy of Injustice reads like a true-crime thriller, and I would say I enjoyed if I hadn’t spent the entire book alternating between anger and horror. A New York Times reporter, Bonner wrote the book from his journalism research, which started in Texas after then-Governor George Bush — who had presided over more executions than any other governor in history — stated on Meet the Press, “I’m confident that every person that has been put to death in Texas on my watch has been guilty of the crime charged and has full access to the courts. I’m confident.”
Since Governor George Ryan of Illinois had just two weeks before suspended the death penalty in his state because of eleventh-hour exonerations of several condemned prisoners, Bonner and a colleague were first sent to Texas, and then later other states, to investigate Bush’s claim and the state of the death penalty in America today. Anatomy examines just one of the many cases they looked into: that of Edward Lee Gilmore, a young black man of limited intelligence convicted of murder in South Carolina in a seven-day trial.
I’ll be the first to admit that I am not impartial on this issue. I think capital punishment is just the most egregious evidence that our criminal justice system is broken (second only to the atrocities of mass incarceration, prison-industrial complex, and drug war, among others). One of my dream jobs would be to work against the death penalty as a rabbi.
So it wasn’t going to take much to convince me of the miscarriage of justice. Tragically, it took 30 years to convince those who could actually do something for Elmore. He had three trials before he was sentenced to death for the last time, and it took almost 20 years to locate a potentially exonerating piece of evidence that the state thought was lost. The book ends before Elmore’s saga does: Last month, Elmore left a courthouse in Greenwood as a free man for the first time since 1982.
Bonner chose the case as emblematic of the many death penalty cases that occur in the 36 states in our country that allow the punishment. He notes, “Elmore’s story raises nearly all of the issues that mark the debate about capital punishment: race, mental retardation, bad trial lawyers, prosecutorial misconduct, ‘snitch’ testimony, DNA testing, a claim of innocence.”
It’s because so many death penalty cases have at least one of these issues that Elmore’s story is sadly familiar, so I won’t go into the details of his story. Bonner is able to make the case for Elmore’s innocence, overwhelming in the narrative and affirmed by his later release, even more compelling by being able to pretty reliably point to the real perpetrator, a neighbor with whom the victim was suspected of having an affair and who died years before Bonner started covering the case. He “discovered” the body and pointed the original investigators to Elmore, and they never even considered the former a suspect.
Several things struck me as I read. Abysmally represented at his original trials, Elmore benefited immensely from later (competent, not to mention tenacious and passionate) counsel from the South Carolina Death Penalty Resource Center. This is typical of many of these cases: The best representation is available on appeal. A huge part of Elmore’s experience was the direct result of the complete incompetence of his original lawyers. There are many dedicated lawyers and law students today working on the cases of death row inmates, so why aren’t more of them clamoring to be the original lawyers on these cases? Indeed, the book makes clear that one of the enormous hurdles that Elmore had to overcome during all the years of appeals was that, despite massive evidence of defense ineptitude, no one wanted to imply that previous lawyers, juries, and judges had made a mistake (especially not multiple times), or perhaps more perniciously, were racist or classist (which of course they were). It seems to me that the priority of death penalty opponents should be ensuring that those accused of crimes eligible for capital punishment get the best representation at their initial trials.
Secondly, Bonner devotes a good number of pages discussing the differing roles of prosecutor and defense attorney. The book opens with two epigrams on the subject from Supreme Court cases. Justice Byron White:
Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of a crime. . . . But the defense counsel has no such comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty.
In other words, defense lawyers’ primary responsibility is to their clients, guilty or not; prosecutors’ primary responsibility is to the truth. Bonner argues that this prescription for prosecutors has gotten lost — and in the vacuum has risen a culture that values winning above all. Today, prosecutors of death penalty cases are generally more interested in convictions, in assigning blame for (what are often heinous) crimes, in assuaging public outrage and fear, in securing “justice” for the families of victims. Perhaps some of these are admirable, or at least understandable. But ultimately, Bonner argues, prosecutors are derelict in their duties when they lose sight of the fact that they are instead (or at least also) supposed to strive to protect the innocent.
What I know about the practice of law could fit into a coffee cup (just as everything I know about law school I learned from Legally Blonde, as I am fond of telling my amused law student interns), so please excuse my ignorance when I say that I simply didn’t know this legal principle. In popular culture, particularly in sympathetic portrayals of wrongly convicted criminals, prosecutors are routinely portrayed as cravenly careerist and eager to convict. While that may be an at least a somewhat accurate portrayal of reality, it’s not what the law proscribes. And Bonner’s book is an object lesson of why not.