Edward Elmore v. Jon Ozmint ( 2012 )

Filed: December 12, 2012
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-14
(4:04-cv-22310-DCN)
EDWARD LEE ELMORE,
Petitioner – Appellant,
v.
JON OZMINT, Director, South Carolina Department of
Corrections; HENRY MCMASTER, Attorney General, State of
South Carolina,
Respondents - Appellees.
O R D E R
The Court amends its opinion filed November 22, 2011,
as follows:
On page 2, attorney information section, lines 6-8,
the names of “Marta K. Kahn, THE LAW OFFICE OF MARTA K. KAHN,
LLC, Baltimore, Maryland; John Henry Blume, III, CORNELL LAW
SCHOOL, Ithaca, New York” are added as counsel for Appellant.
For the Court – By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EDWARD LEE ELMORE, 
Petitioner-Appellant,
v.
JON OZMINT, Director, South
Carolina Department of  No. 07-14
Corrections; HENRY MCMASTER,
Attorney General, State of South
Carolina,
Respondents-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
David C. Norton, District Judge.
(4:04-cv-22310-DCN)
Argued: September 22, 2010
Decided: November 22, 2011
Before WILKINSON, KING, and GREGORY,
Circuit Judges.
Reversed and remanded by published opinion. Judge King
wrote the majority opinion, in which Judge Gregory joined.
Judge Wilkinson wrote a dissenting opinion.
2 ELMORE v. OZMINT
COUNSEL
ARGUED: J. Christopher Jensen, COWAN, LIEBOWITZ &
LATMAN, PC, New York, New York, for Appellant. Donald
John Zelenka, OFFICE OF THE ATTORNEY GENERAL
OF SOUTH CAROLINA, Columbia, South Carolina, for
Appellees. ON BRIEF: Diana L. Holt, DIANA HOLT, LLC,
Columbia, South Carolina; Marta K. Kahn, THE LAW OFFICE OF MARTA K. KAHN,
LLC, Baltimore, Maryland; John Henry Blume, III, CORNELL LAW SCHOOL, Ithaca, New
York, for Appellant. Henry D. McMaster, Attorney General, John W. McIntosh, Chief Dep-
uty Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL OF SOUTH CAROLINA, Columbia, South Carolina,
for Appellees.
OPINION
KING, Circuit Judge:
For nearly thirty years, Edward Lee Elmore, a mentally
retarded handyman, has been behind bars, mainly on South
Carolina’s death row, for the January 1982 murder of Dorothy
Edwards, an elderly woman who had sporadically employed
him. The 28 U.S.C. § 2254 petition now on appeal, however,
is part of Elmore’s very first effort to secure federal habeas
corpus relief. The antecedent state proceedings — encompass-
ing three trials and related appeals over eight years, followed
by another fourteen years of state postconviction relief
("PCR") litigation — were, to say the least, excruciatingly
protracted. And, unfortunately, these federal habeas proceed-
ings have been prolonged, in part because of our stay of this
appeal to await further state court action.
In these federal proceedings, the district court denied
Elmore relief on multiple claims, previously exhausted in the
South Carolina courts, challenging the constitutionality of his
convictions for murder, criminal sexual conduct, and bur-
glary, as well as his death sentence. The district court also
ELMORE v. OZMINT 3
declined to stay the federal litigation pending a final state
determination of Elmore’s unexhausted claim that, because he
is mentally retarded, his execution is prohibited by the Eighth
Amendment under Atkins v. Virginia, 536 U.S. 304 (2002).
The first oral argument in this appeal, conducted on March
21, 2008, focused primarily on the stay issue. Shortly thereaf-
ter, on March 24, 2008, we entered our own stay, abating any
further federal action while Elmore exhausted his Atkins claim
in the state courts. Nearly two years later, on February 1,
2010, the state PCR court granted Elmore relief on that claim,
vacating his death sentence and ordering that a life sentence
be imposed instead. On March 10, 2010, the respondents —
Jon Ozmint, Director of the South Carolina Department of
Corrections, and Henry McMaster, the State’s Attorney Gen-
eral — advised us that the state PCR court’s Atkins ruling
would not be further contested. The following day, March 11,
2010, we lifted our stay. Finally, on September 22, 2010, we
heard additional oral argument on the issues remaining before
us, i.e., those involving claims relating to the constitutionality
of Elmore’s convictions, rather than his now-vacated death
sentence.
Having scrutinized volumes of records of Elmore’s three
trials and his state PCR proceedings, we recognize that there
are grave questions about whether it really was Elmore who
murdered Mrs. Edwards. And we are constrained to conclude
— notwithstanding the demanding strictures of § 2254(d) —
that Elmore is entitled to habeas corpus relief on his Sixth
Amendment claim of ineffective assistance of counsel prem-
ised on his trial lawyers’ blind acceptance of the State’s foren-
sic evidence. All told, Elmore’s is one of those exceptional
cases of "‘extreme malfunctions in the state criminal justice
systems’" where § 2254 may appropriately be used to remedy
injustice. Harrington v. Richter, 131 S. Ct. 770, 786 (2011)
(quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)
(Stevens, J., concurring in the judgment)). Accordingly, we
reverse the district court’s judgment denying relief and
remand for the court to award Elmore a writ of habeas corpus
4 ELMORE v. OZMINT
unless the State of South Carolina endeavors to prosecute him
in a new trial within a reasonable time.
I.
Elmore is alleged to have raped and murdered Mrs.
Edwards and burglarized her Greenwood, South Carolina resi-
dence on the night of Saturday, January 16, 1982. Elmore, an
African-American who was then twenty-three years old, per-
formed odd jobs in the area to earn money. Mrs. Edwards,
seventy-five years old and white, was a wealthy widow who
resided alone. She had hired Elmore several times — most
recently on December 30, 1981 — to wash the windows and
clean the gutters of her home. On Monday, January 18, 1982,
the local police were alerted by Mrs. Edwards’s neighbor,
Greenwood County Councilman Jimmy Holloway, that he
had just discovered Mrs. Edwards’s body in her bedroom
closet. Holloway immediately identified Elmore as a possible
suspect and said that Elmore’s name could be found in Mrs.
Edwards’s checkbook register. The following day, Tuesday,
January 19, 1982, investigators matched a thumbprint on the
exterior frame of the back door into the Edwards home — the
murderer’s likely entrance point — to Elmore. Relying on the
thumbprint, the police obtained a warrant to arrest Elmore for
Mrs. Edwards’s murder. Elmore was arrested early the next
morning, Wednesday, January 20, 1982, and has been impris-
oned since that time.
The following is a summary of the extensive procedural
history of this matter.
• The first trial was conducted in the Court of Gen-
eral Sessions for Greenwood County on April 12-
19, 1982, within three months of Elmore’s arrest.
He was found guilty and sentenced to death.
• On November 1, 1983, the Supreme Court of
South Carolina reversed Elmore’s convictions,
ELMORE v. OZMINT 5
vacated his death sentence, and remanded for a
new trial because the trial judge had improperly
entered the jury room during the sentencing
phase of the trial, without counsel for either the
State or the defense; requested periodic reports
on the status of jury deliberations, in "violation of
elementary hornbook law"; and directed a "highly
prejudicial" and "unjustifiably coercive" supple-
mental instruction at a juror who was apparently
voting against the death penalty. See State v.
Elmore, 308 S.E.2d 781, 785-86 (S.C. 1983).
• The second trial was conducted in Greenwood
County from March 26 to April 2, 1984, and
Elmore was again found guilty and sentenced to
death.
• On May 16, 1985, the state supreme court unani-
mously affirmed Elmore’s convictions and death
sentence. See State v. Elmore, 332 S.E.2d 762(S.C. 1985). The court ruled, inter alia, that the
trial judge had properly excluded sentencing-
phase-only prison guard testimony offered by
Elmore to show his adaptability to prison life. See
id. at 764 (citing State v. Skipper, 328 S.E.2d 58(S.C. 1985)). On May 5, 1986, however, the
Supreme Court of the United States granted cer-
tiorari, vacated the judgment, and remanded for
further consideration in light of its decision in
Skipper v. South Carolina, 476 U.S. 1, 4-5 (1986)
(concluding that petitioner’s evidence of good
behavior in jail was "relevant evidence in mitiga-
tion of punishment" that "may not be excluded
from the sentencer’s consideration"). See Elmore
v. South Carolina, 476 U.S. 1101 (1986).
• The third trial — which was limited to the sen-
tencing phase — was conducted on February 23-
6 ELMORE v. OZMINT
28, 1987, in Newberry County, as a result of
Elmore’s successful motion to transfer venue
from Greenwood County. At the conclusion of
the trial, Elmore was yet again sentenced to
death.
• On August 21, 1989, the state supreme court
affirmed Elmore’s death sentence, see State v.
Elmore, 386 S.E.2d 769 (S.C. 1989), and, on
June 11, 1990, the Supreme Court of the United
States denied certiorari, see Elmore v. South Car-
olina, 496 U.S. 931 (1990).
• On December 13, 1990, Elmore filed his PCR
application in the Court of Common Pleas for
Greenwood County. More than four years later,
from February 27 to March 4, 1995, the state
PCR court conducted an evidentiary hearing, and,
on October 30, 1995, Elmore amended his PCR
application for the final time. By order of July 3,
1997, the court denied the application in its
entirety. See Elmore v. Evatt, No. 90-CP-24-1004
(S.C. Ct. C.P. July 3, 1997).
• While Elmore’s appeal from the denial of his
PCR application was pending in the state
supreme court, the State revealed that items of
physical evidence — previously sought by
Elmore’s lawyers in the PCR proceedings but
claimed by the State to have gone missing — had
recently been found. Consequently, the parties
filed a joint motion to dismiss Elmore’s appeal
without prejudice and remand for further pro-
ceedings, which the state supreme court granted.
See Elmore v. Evatt, S.C. Ct. C.P. No. 90-CP-24-
1004 (S.C. Jan. 8, 1999).
• On remand, the state PCR court concluded that
the once-missing evidence was of insufficient
ELMORE v. OZMINT 7
help to Elmore and, thus, yet again denied him
relief. See Elmore v. Evatt, No. 90-CP-24-1004
(S.C. Ct. C.P. Feb. 21, 2001).
• In 2004, the state supreme court granted a writ of
certiorari to review the state PCR court’s rejec-
tion of Elmore’s PCR claims, but, after briefing
and oral argument, dismissed the writ as improvi-
dently granted. See Elmore v. Evatt, No. 2004-
MO-036 (S.C. July 12, 2004).
• On July 5, 2005, Elmore filed his 28 U.S.C.
§ 2254 petition in the District of South Carolina,
in which he asserted numerous exhausted claims,
plus his unexhausted mental retardation claim
pursuant to Atkins v. Virginia, 536 U.S. 304(2002). The district court rejected Elmore’s
request to stay the federal proceedings pending
exhaustion of his Atkins claim in the state courts.
See Elmore v. Ozmint, No. 4:04-cv-22310
(D.S.C. Apr. 25, 2006) (order and opinion deny-
ing stay); Elmore v. Ozmint, No. 4:04-cv-22310
(D.S.C. Aug. 11, 2006) (order and opinion refus-
ing to alter or amend stay ruling). Thereafter, the
district court denied Elmore’s § 2254 petition on
the magistrate judge’s recommendation. See
Elmore v. Ozmint, No. 4:04-cv-22310 (D.S.C.
Oct. 27, 2005) (report and recommendation of the
magistrate judge); Elmore v. Ozmint, No. 4:04-
cv-22310 (D.S.C. May 17, 2007) (order and opin-
ion denying petition); Elmore v. Ozmint, No.
4:04-cv-22310 (D.S.C. Aug. 3, 2007) (order and
opinion refusing to alter or amend judgment).
Nevertheless, the court granted Elmore a certifi-
cate of appealability, thereby authorizing this
appeal. See Elmore v. Ozmint, No. 4:04-cv-22310
(D.S.C. Oct. 9, 2007).
8 ELMORE v. OZMINT
In his initial appellate brief, submitted to this Court in
December 2007, Elmore pursued five issues. As explained
above, we conducted oral argument in March 2008 and then
stayed our proceedings pending Elmore’s exhaustion of his
Atkins mental retardation claim in the South Carolina courts.
See Elmore v. Ozmint, No. 07-14 (4th Cir. Mar. 24, 2008).
Nearly two years later, the state PCR court rendered its unap-
pealed Atkins ruling in Elmore’s favor, see Elmore v. State,
No. 05-CP-24-1205 (S.C. Ct. C.P. Feb. 1, 2010), and, soon
thereafter, we lifted our stay of this appeal, see Elmore v.
Ozmint, No. 07-14 (4th Cir. Mar. 11, 2010). On April 1, 2010,
Elmore was formally resentenced in the state trial court to a
life term of imprisonment.
As the parties asserted in their subsequent briefs and during
the latest oral argument, the state Atkins ruling nullified our
review of two of the five issues pursued by Elmore —
whether he was entitled to a stay of the district court proceed-
ings pending exhaustion of his Atkins claim, and whether he
was due resentencing relief on his Sixth Amendment claim of
ineffective assistance during his 1987 sentencing-phase-only
trial. The remaining three issues encompass the question of
whether Elmore is entitled to habeas corpus relief on a claim
challenging the constitutionality of his 1984 convictions. Our
opinion focuses on two of those claims — Elmore’s Sixth
Amendment claim of ineffective assistance in the guilt phase
of his 1984 trial, and his Fourteenth Amendment claim that
the State suppressed exculpatory evidence and knowingly
presented false testimony material to his convictions.1
Elmore’s Sixth Amendment ineffective assistance claim and Four-
1
teenth Amendment due process claim are premised on much of the same
evidence and, thus, discussed together. "[T]he two claims are nonetheless
distinct, both in nature and in the requisite elements of proof." Cf. Kimmel-
man v. Morrison, 477 U.S. 365, 374 (1986) (distinguishing Sixth Amend-
ment ineffective assistance claim from Fourth Amendment illegal search
and seizure claim). Because Elmore so clearly deserves relief on his inef-
fective assistance claim, we do not decide his due process claim today. We
also do not reach the third claim in issue, which is Elmore’s Sixth Amend-
ment claim that the 1984 trial was not conducted before an impartial jury.
ELMORE v. OZMINT 9
II.
In assessing Elmore’s claims, we first examine the record
of the 1984 trial proceedings. Significantly, the State’s case
during the 1984 trial was nearly identical to the case it had
presented in 1982. Elmore was represented at both trials by
Geddes D. Anderson, the part-time Greenwood County Public
Defender, and John F. Beasley, a local lawyer and former
public defender who was appointed to assist Anderson.
A.
The seven-day trial began on Monday, March 26, 1984.
During a pretrial hearing conducted on Friday, March 23, the
state trial court took up Elmore’s pending motions, including
his pro se request for new defense counsel (a request Elmore
had made to the court by letter a few months earlier). His law-
yer, Mr. Anderson, acknowledged at the hearing that the
request for replacement counsel had been made, but indicated
opposition to being replaced. As Anderson explained to the
court,
I would at this time tell [Elmore] that Mr. Beasley
and I are thoroughly prepared. I have been going
over the old transcript. I had Mr. [Bruck]2 send it to
me, and he did about six weeks ago. I’ve been going
over the trial, and I frankly told [Elmore] that it was
Mr. Beasley and I making the record that they used
to get him a new trial, and we feel like we’re pre-
pared to go. I’d like the Court to make inquiry as to
what he wants to do about it and what if anything
can be done.
2
The "Mr. Bruck" referred to in the pretrial hearing transcript — misi-
dentified therein as "Mr. Brooks" — was David I. Bruck of the South Car-
olina Commission of Appellate Defense, Elmore’s lawyer in his successful
appeal of the 1982 verdict. See State v. Elmore, 308 S.E.2d 781, 783 (S.C.
1983).
10 ELMORE v. OZMINT
J.A. 511-12.3 When the court asked Elmore to explain why he
had made the request for replacement counsel, Elmore
advised only that "I think it would be in my best interest to
have some new attorneys." Id. at 513. The court responded
that Anderson and Beasley
are already familiar with the case and the facts and
your defense. Both of them are experienced attor-
neys; both of them have represented defendants in
many criminal trials as well as in trials in which the
State sought the death penalty. The Court is of the
opinion that you are represented by two competent
attorneys, and I would need, Mr. Elmore, something
other than simply a request for a change of attorneys
to consider any such change.
Id. Elmore then stated that "Mr. [Bruck] said he could . . .
explain it to you more better than I could. He’s supposed to
have came down and talked to you. He told me he had talked
to you about it." Id. The court recalled only receiving a letter
from Elmore requesting new counsel, "but without any reason
being stated." Id. Elmore then asked the court to "hold off on
[ruling on the request] until [Mr. Bruck] talks to you about it,"
but the court refused to delay ruling and denied the request.
Id. at 514.
Thereafter, the pretrial hearing turned to Elmore’s pending
counseled motion for a competency hearing. With respect to
that motion, his lawyers promptly conceded that Elmore was
competent to stand trial. See J.A. 515 (Anderson explaining
that, four to five weeks earlier, Elmore had advised him "that
he [Elmore] felt emotionally stable and he knew what was
going on"). Nevertheless, the state trial court ordered a com-
petency hearing, to be conducted the following Monday,
March 26, 1984, at the outset of Elmore’s trial.
3
Citations herein to "J.A. __" refer to the contents of the Joint Appendix
filed by the parties in this appeal.
ELMORE v. OZMINT 11
By agreement of the parties, Elmore was examined that
Monday morning by a private psychiatrist, Dr. Harold Mor-
gan, who had previously examined Elmore in 1982, at the
behest of the defense, in preparation for the first trial.4 Within
a few hours of examining Elmore to determine his compe-
tency for the 1984 trial, Dr. Morgan testified on direct exami-
nation by the State that Elmore "does not show signs of any
mental disease, nothing that would interfere with his ability to
understand the charges against him or to assist counsel in his
own defense." J.A. 519. After Elmore’s counsel declined to
cross-examine Dr. Morgan, the state trial court ruled, based
upon Dr. Morgan’s testimony, that Elmore was competent to
stand trial. Shortly after its competency ruling, the court com-
pleted discussion of preliminary trial matters, and the jury
selection proceedings began that afternoon.
B.
The State’s theory of the case at the 1984 trial was (as it
remains today) that Elmore raped and murdered Mrs.
Edwards and burglarized her home in the time period between
approximately 10:00 p.m. and midnight on Saturday, January
16, 1982, a period for which Elmore does not have a corrobo-
rated alibi. Under that theory, Elmore drove his car to the
Edwards residence after failing in that day’s efforts to reunite
with his former girlfriend. According to the prosecutor,
Elmore may have peered through the living room window,
where he would have seen Mrs. Edwards sitting on the couch,
watching television. The prosecutor more assuredly theorized
that Elmore approached the house at its back door, adjacent
to the carport, and left his thumbprint on the exterior door
4
In his appeal from the 1982 verdict, Elmore had contended "that the
trial judge erred in not holding a hearing to determine his competency to
stand trial." Elmore, 308 S.E.2d at 783. The Supreme Court of South Car-
olina rejected that contention, explaining that a competency hearing was
unnecessary because, inter alia, Elmore "underwent psychiatric examina-
tion on two occasions prior to the commencement of trial and was
adjudged competent." Id.
12 ELMORE v. OZMINT
frame while waiting for Mrs. Edwards to answer. See 1984
Trial Tr. 542 (prosecutor’s opening statement that the thumb-
print was "about the height that one would be if they were
standing there with their hand up there waiting at the door
after knocking or whatever").5
The prosecutor also posited that, when Mrs. Edwards
opened the back door, Elmore forced his way inside the
house. In the immediate kitchen area, a violent altercation
with Mrs. Edwards ensued, during which she sustained
bloody injuries and suffered a blow so powerful that a partial
denture plate was dislodged from her mouth. The prosecutor
surmised that Elmore then propelled Mrs. Edwards to her bed-
room, where he raped her on her bed. Additionally, the prose-
cutor deduced that Mrs. Edwards, acting on repulsion at what
was happening to her, reached out and pulled more than forty
pubic hairs from Elmore’s exposed groin area.
Following the rape, under the State’s theory of the events,
Elmore inflicted dozens of antemortem and postmortem inju-
ries on Mrs. Edwards in the area of the bedroom’s west wall,
using such items as needle-nosed pliers, a paring knife, a bro-
ken metal-and-glass ashtray, a serrated cake knife, and bottle
tongs. Despite her small stature — she stood well under five
feet tall and weighed only about 130 pounds — Mrs. Edwards
had fought her attacker, as evidenced by the defensive
wounds she sustained and the blood under her fingernails.
Brutalized, however, Mrs. Edwards succumbed to "exsangui-
nation, or bleeding, and crush chest trauma." See J.A. 644
(testimony of medical examiner Dr. Sandra Conradi). Accord-
ing to the prosecutor, Elmore concealed Mrs. Edwards’s
body, clad only in a robe, in her nearby bedroom closet. He
then wiped the scene clean of fingerprints and other evidence,
leaving behind bloody paper tissues. Some of the scene was
left in disarray — for example, Mrs. Edwards’s bed was
5
Citations herein to "1984 Trial Tr. __" refer to portions of the transcript
of Elmore’s 1984 trial that were not included in the Joint Appendix.
ELMORE v. OZMINT 13
askew and several of her belongings were scattered on the
bedroom floor — though Elmore returned the tongs to a
drawer in the kitchen. Finally, the prosecutor theorized that
Elmore exited the Edwards home with Mrs. Edwards’s small
clutch bag of cash in hand, got into his waiting car, and drove
to the apartment of his former girlfriend.
1.
Jimmy Holloway testified for the State in the 1984 trial that
he and his wife had been friends and neighbors of Mrs.
Edwards (and her late husband) since the 1940s. The Hol-
loways sometimes "had meals" with Mrs. Edwards, provided
"most of her security," helped her with "minor repairs around
the house," and acted as "someone to talk to when she needed
someone to talk with." J.A. 661. According to Holloway, he
had last spoken with Mrs. Edwards during the afternoon of
Saturday, January 16, 1982, and she had planned to leave
town at 6:00 a.m. the following day. Holloway saw Mrs.
Edwards’s car parked outside her house later that Sunday, but
it did not cause him concern. After calling Mrs. Edwards
shortly after noon that Monday and not receiving an answer,
however, Holloway decided to walk to Mrs. Edwards’s house
to check on her. As he approached the back door (his usual
entrance point), Holloway noticed that both the Sunday morn-
ing and Monday morning editions of The Greenville News
were lying outside the house. Holloway knocked on the back
door, and the door came open. Just inside the residence, Hol-
loway noticed signs of a disturbance and saw a partial denture
plate on the floor, alongside a pair of needle-nose pliers. Hol-
loway proceeded through the house, looking for Mrs.
Edwards, and ended up at her bedroom.
According to Holloway, as he approached the bedroom, he
noticed that the bed had been turned down. Holloway testified
that, after entering the bedroom, "I turned to the left to see if
by chance [Mrs. Edwards] had fallen or hurt herself in the [en
suite] bathroom." J.A. 673. "The bathroom door was open,
14 ELMORE v. OZMINT
and as I looked down, I saw reddish stains on the lavatory and
on the commode which had been wiped." Id. After turning
around to face the west wall of the bedroom, Holloway "only
then . . . saw the large amount of blood, the knife on the floor,
and the empty bag to the left, with a penny laying on the
floor, and the disturbance. It looked like somebody had been
through something." Id. at 674.
At that point, Holloway did not open the adjacent closet
door. Rather, being "very excited," Holloway "wanted to go
and get a neighbor to come with [him], or better still, try and
call the hospital and see if something had happened to [Mrs.
Edwards] and she was in the hospital." J.A. 674. Holloway
went to the home of another neighbor, a Mrs. Clark, where he
called the hospital. Holloway and Mrs. Clark then returned
together to the Edwards home and went directly to the bed-
room. Once there, Mrs. Clark waited in the hallway while
Holloway "took a pair of gloves out of [his] back [pants]
pocket in order to open the closet door, which was standing
about two and a half to three inches open." Id. at 675. As Hol-
loway described it, "I took my glove and gently opened the
door, and I found the body of Mrs. Edwards." Id. Holloway
then "turned around and placed the door back in its position
for the law enforcement." Id. Holloway and Mrs. Clark left
the Edwards home, Mrs. Clark called the police, and Hol-
loway waited for the officers in Mrs. Edwards’s driveway.
The State relied on Holloway’s testimony to show that Mrs.
Edwards’s small clutch bag of cash was missing from the resi-
dence. See J.A. 675-76 (Holloway’s testimony that, "[a]s
[Mrs. Clark and I] came out of the house, it was concerning
me, ‘Now, what all did happen?’ and being of an inquisitive
mind, I looked over on the . . . drop-leaf table to see if robbery
had been, and I missed [Mrs. Edwards’s] clutch").6 The State
6
The trial evidence reflected that the missing clutch bag matched the
larger Aigner-brand bag found on Mrs. Edwards’s bedroom floor. The
clutch bag was never found, either in Elmore’s possession or anywhere
else. Furthermore, Elmore was not found with currency, between $50 and
$150, estimated to have been in the clutch bag, or with a firearm thought
to also be missing from the Edwards home.
ELMORE v. OZMINT 15
also relied on Holloway’s testimony to establish that the
crimes had occurred on Saturday night. In addition to testify-
ing that Mrs. Edwards had planned to leave town at 6:00 a.m.
Sunday and that the Sunday and Monday morning newspapers
were lying outside her house, Holloway stated the following:
[A]s I came back through the kitchen [after finding
Mrs. Edwards’s body], her coffeepot was on, this lit-
tle automatic coffeepot that you can set at night to
come on at [the] designated hour the next morning.
....
. . . This automatic coffeepot was one exactly like
the one I have. It’s a G.E., and I noticed that all the
moisture, or water, had evaporated out and only the
residue from the coffee was at the bottom of the
Pyrex pot.
Id. at 676. Holloway initially testified that the coffeepot was
set for "[s]ix o’clock a.m.," but then clarified that he
"shouldn’t have used the word ‘a.m.,’ because if you set it at
six o’clock before six o’clock in the afternoon, it’s going to
go off at six o’clock in the afternoon." Id. at 680. Neverthe-
less, Holloway agreed that it was his "judgment that [the cof-
feepot] was set for six a.m." Id. at 681. While testifying about
the coffeepot, Holloway also noted that Mrs. Edwards’s alarm
clock was sounding at the time he discovered her body. See
id. at 676 (Holloway’s testimony that "I would like to go back
and say that as I went into the bedroom the first time, as well
as the second time, the alarm clock was running"). Holloway
— who was not cross-examined by Elmore’s trial counsel —
testified on direct examination that he did not turn off the cof-
feepot or the alarm clock.7
7
Holloway had testified during Elmore’s 1982 trial that, when the police
first arrived at the Edwards home, he met the responding officers in the
driveway and told them that the coffeepot was on. The next day, the police
gave Holloway the key to the Edwards home, and he then hired cleaners
to remove fingerprinting dust and bloodstains from the premises.
16 ELMORE v. OZMINT
Other evidence that the crimes had occurred on Saturday
night was provided by Lieutenant Alvin Johnson of the
Greenwood City Police Department. Johnson corroborated
that, in the kitchen, "[t]he coffeepot was on" and "[t]he liquid
had evaporated." 1984 Trial Tr. 600. Johnson turned off the
coffeepot "for . . . safety purposes." Id. at 601. Johnson also
testified that the alarm clock in Mrs. Edwards’s bedroom was
sounding when he arrived at the residence, and that the clock
was set for 6:00 (though he did not specify a.m. or p.m.).
Additionally, Johnson testified that the television in the living
room was on, and a TV Guide magazine on the coffee table
was open to the listings for 8:00 and 9:00 on Saturday night.
2.
Also during Elmore’s 1984 trial, the State presented law
enforcement officers and forensic analysts to testify about the
murder investigation and their collection and testing of physi-
cal evidence.
a.
Medical examiner Dr. Sandra Conradi, the forensic pathol-
ogist who performed the autopsy at approximately 11:00 a.m.
on Tuesday, January 19, 1982, in Charleston, South Carolina,
testified in considerable detail about Mrs. Edwards’s horrific
injuries, including vaginal abrasions evidencing a sexual
assault, plus defensive wounds on her arms and hands. Dr.
Conradi opined that the time of death was between twelve
hours and three days before the autopsy — as late as 11:00
p.m. on Monday, January 18, and as early as 11:00 a.m. on
Saturday, January 16. When asked if she could be more spe-
cific, Dr. Conradi testified:
The only way I could do that is basing my findings
also on history as provided me by the coroner as to
when she was . . . last seen alive, when she was last
talked to, but as far as on a scientific basis, from the
ELMORE v. OZMINT 17
autopsy, I couldn’t be any more specific than the
twelve hours to three days.
J.A. 651. Based on the "history," Dr. Conradi "estimate[d] the
time of death to be the night of the 16th, Saturday night." Id.
On cross-examination, she acknowledged that the scientific
indicators of time of death "are very variable." Id. at 653. She
reiterated that, based on "the autopsy itself," Mrs. Edwards
had been dead "twelve hours to three days." Id. "From the his-
torical information," the time of death was "probably closer to
three days than twelve hours." Id. at 653-54.
b.
Lieutenant Frank Dan DeFreese of the South Carolina Law
Enforcement Division ("SLED"), a fingerprint analyst, testi-
fied that he arrived at the Edwards home shortly after 3:00
p.m. on Monday, January 18, 1982. According to DeFreese,
he noticed an area on the exterior frame of the back door with
"a certain shine to it that the surrounding paint did not have,"
and he "subsequently treated that area with contrasting finger-
print powder to make a fingerprint visible." J.A. 552. Because
"[t]he powder bonded readily," DeFreese concluded "[t]hat
the print was relatively moist" and, thus, "relatively fresh." Id.
at 554. DeFreese photographed and lifted the print from the
door frame and, the following day (Tuesday, January 19,
1982), matched that print to the left thumb impression on a
fingerprint card bearing Elmore’s name.
On cross-examination, Lieutenant DeFreese agreed that the
print "could have been there [on the exterior door frame] a
month." J.A. 579. He explained that "[i]t’s very difficult to
say with any degree of precision when it was placed there. We
can say for certain who it was put there by . . . , but telling
it like it is, I can’t say for sure it was put there two days
before." Id. Nonetheless, DeFreese restated the indicators that
the print was "fresh," i.e., "that there was moisture present,
and the powder did readily adhere to the print." Id.
18 ELMORE v. OZMINT
Four officers of the City of Greenwood Police Department
had earlier testified that the print on the door frame was visi-
ble to the naked eye and appeared (to the naked eye) to be "re-
cent" or "fresh," without explaining why this was so. See 1984
Trial Tr. 561, 567, 576, 590. Elmore’s defense counsel
objected to the testimony of the third and fourth witnesses.
See id. at 575 ("[W]e have allowed that once or twice. He is
drawing a conclusion as to the appearance of the prints. I
think he can testify as to what he saw and not what his con-
clusion is as to recent vintage or several days old."); id. at 590
("Same objection, same grounds."). Those objections were
overruled.
During his time on the witness stand, Lieutenant DeFreese
testified to finding and identifying only two other prints at the
crime scene. The first was a print lifted from the swinging
door between the kitchen and dining room. DeFreese
described "compar[ing] it with these post-mortem inked fin-
gerprints from Mrs. Edwards’ body," and concluding that the
print was made by her right thumb. J.A. 571. The second was
a palm print found on top of the toilet tank in Mrs. Edwards’s
en suite bathroom, which also was matched to Mrs. Edwards.
See id. at 580. DeFreese testified that "blood . . . was smeared,
noticeably smeared on the commode and on a portion of the
lavatory." Id. "There [was] both some unsmeared blood and
some smeared blood across the top of the toilet seat." Id. at
581.8
8
At the 1982 trial, Lieutenant DeFreese had explained why few finger-
prints were found at the crime scene:
Mrs. Edwards, or whoever kept her house, was a very meticulous
housekeeper. The place was extremely clean and extremely neat
. . . . [T]here was simply no other identifiable latent fingerprints
found that we could do anything with. There were a few other
partial latent fingerprints, which were not identifiable[,] some of
them consiste[nt] in their size with the size of fingers that women
generally have. But there were no other fingerprints that were
identifiable found in the areas of activity.
J.A. 83.
ELMORE v. OZMINT 19
c.
SLED Agent Ira Byrd Parnell, Jr., testified that he assisted
Lieutenant DeFreese in examining the crime scene and pre-
serving evidence. According to Parnell, he discovered "a
number of hairs" in the bed in Mrs. Edwards’s bedroom. J.A.
544. As Parnell described it, "[t]he bottom part of the bed had
been moved," "[t]he main covers, the spread, or quilt, were
folded down," and "the sheets underneath were rumpled and
in a wrinkled condition." Id. at 543. Parnell testified that, "in
an area just past the middle of the bed from top to bottom,"
he found the hairs arrayed in "almost a band, approximately
eighteen inches deep by approximately three feet wide." Id. at
544. Parnell, who was not cross-examined by the defense,
stated that he collected the hairs in DeFreese’s presence.
Lieutenant Earl Wells, the Assistant Chief Chemist of
SLED’s Forensic Chemistry Department, testified that he
received a collection of forty-nine hairs found on Mrs.
Edwards’s bed. Of those hairs, according to Wells, two were
consistent with Mrs. Edwards’s pubic hairs, two with her head
hairs, and the remaining forty-five with Elmore’s pubic hairs.
Of the latter forty-five hairs, four looked to be of the type that
would have normally fallen out, and forty-one appeared to
have been forcibly removed. Wells testified that "[t]he racial
origin of the [forty-five hairs] was Negroid," and that the hairs
had two "outstanding characteristics" that rendered them
"consistent with Mr. Elmore" and "somewhat inconsistent
with normal [N]egroid hair": a certain rare "banding effect"
and "a reddish cast to the color of the hair." Id. at 622-23.
Wells opined on direct examination that there was "a very
high degree of probability that the hairs found on the bed"
came from Elmore. Id. at 624. On cross-examination, the
defense elicited that it was "not a certainty," i.e., "[n]ot 100
percent," that the hairs matched Elmore. Id.
d.
The trial evidence reflected that the crime scene was a par-
ticularly bloody one. The bedroom carpet was saturated with
20 ELMORE v. OZMINT
blood in the area near the closet where Mrs. Edwards’s brutal-
ized body was stashed. Two bloody footprints were found:
one in the carpeted dining room just off the hallway leading
from Mrs. Edwards’s bedroom, and one in the carport leading
away from the house. There was also blood on several of the
weapons used against Mrs. Edwards, as well as on the kitchen
carpet, the bedroom wall, the toilet and sink in Mrs.
Edwards’s en suite bathroom, and tissues apparently used by
the murderer to wipe away fingerprints and other evidence.
Lieutenant Thomas W. Henderson, Jr., of SLED testified
that blood was found on several items of Elmore’s clothing
that he admittedly had been wearing on the night of Saturday,
January 16, 1982: a pair of shoes, a brown corduroy coat, and
a pair of blue denim pants. According to Henderson, he ques-
tioned Elmore about the blood on the shoes, which Elmore
was wearing at the time of his arrest. In that regard, Hender-
son testified:
I pointed out to [Elmore] there were stains on the
shoes which appeared to be blood, and I asked him
if he had any idea where the blood had come from.
He said no, he hadn’t. I went on to ask him, "Have
you been killing any animals in the recent past while
wearing the shoes, such as a cow or dog or hog or
any kind of animal?" He said no, he had not. I asked
him if he had been walking anyplace wearing those
shoes where blood might have been on the ground or
floor, or anyplace he had been walking and got it on
his shoes. He said no, he had no idea where the
blood came from.
J.A. 750. The coat and pants had been obtained during a
search of Elmore’s mother’s home in nearby Abbeville, South
Carolina, where Elmore resided. Elmore’s car also was "thor-
oughly" searched, "even vacuumed," but no blood or other
incriminating evidence was recovered. See 1984 Trial Tr. 726
ELMORE v. OZMINT 21
(testimony of Greenwood city police officer Gary Vanlerber-
ghe).
SLED’s John C. Barron, a forensic serologist, testified that
Elmore had Type B blood (in common with about 10% of the
population), and Mrs. Edwards had Type A blood (along with
approximately 40-45% of the population). Barron was able to
identify Type A blood on Elmore’s left shoe, but was unable
to ascertain the type of blood on his right shoe. Elmore’s coat
contained three areas of human blood, two identifiable (both
Type B). There were ten areas of human blood on his pants,
five identifiable (three Type A and two Type B). All of the
identifiable blood in Mrs. Edwards’s house was Type A.
Among the unidentifiable samples was blood scraped from
beneath Mrs. Edwards’s fingernails. Barron acknowledged on
direct examination that it took "a period of at least two
weeks" to complete his tests on the blood, and he conceded
on cross-examination that, because the blood on Elmore’s
shoes, coat, and pants was dry, it was "an impossibility" to
determine the blood’s age. See 1984 Trial Tr. 812-14.
3.
Greenwood resident James Gilliam testified for the State
that he was arrested around April 2, 1982, and held in the
Greenwood Law Enforcement Center, where fellow inmate
Elmore approached him two or three days later in a jail com-
mon area and spontaneously confessed to murdering Mrs.
Edwards. According to Gilliam, Elmore "said he went there
to rob the lady, and she started screaming, so he had to kill
her," and that "he knowed police couldn’t have no fingerprints
because he had cleaned up before he left." J.A. 793-94.
Elmore also asked Gilliam "if he had sex with anybody and
you washed up afterward, could you be able to tell that you
have had sex with that person." Id. Gilliam testified that he
had multiple convictions for writing bad checks and receiving
stolen goods, and that he had been arrested and incarcerated
with Elmore as the result of a probation violation. Gilliam
22 ELMORE v. OZMINT
"[k]new [Elmore] by sight," because they had both once
resided in the same Greenwood apartment complex, but had
not previously spoken to him. Id. at 792. "[W]ant[ing] to do
what was right," Gilliam wrote a letter on April 6, 1982, to
Lieutenant Johnson of the Greenwood City Police Department
concerning his conversation with Elmore. Id. at 796. Gilliam
further testified that no one had talked to him about Elmore’s
case — including any police or other government official —
before he wrote the letter to Johnson.
The defense’s cross-examination of Gilliam was aimed at
establishing that he fabricated Elmore’s confession in order to
obtain favorable treatment at sentencing on his probation vio-
lation. The defense had also made a motion to exclude Gil-
liam’s testimony in advance of his appearance before the jury.
After hearing from several witnesses outside the jury’s pres-
ence — including Gilliam and Captain Arlie Capps, the
Greenwood jail administrator — the state trial court denied
Elmore’s motion premised on findings that "any statement
that the Defendant made to the Witness Gilliam was not the
result of any plan on the part of any law enforcement agency,
and Mr. Gilliam was not put there for the purpose of interro-
gation or asking any questions." J.A. 788.
4.
Elmore testified on his own behalf that he "didn’t have
nothing to do with" the death of Mrs. Edwards. J.A. 851. He
also denied "hav[ing] any discussion with [James Gilliam]
such as [Gilliam] testified to here." Id. at 848. Rather, accord-
ing to Elmore, Gilliam approached him and asked
"[q]uestions about Mrs. Edwards[’s] death," and Elmore
responded that he "didn’t know nothing about it." Id. at 849.
On direct examination, Elmore testified that — hoping to get
back together with his former girlfriend, Mary Alice Dunlap
— he had met up with and talked to Dunlap several times on
Saturday, January 16, 1982. At about 9:30 p.m., Elmore saw
Dunlap leave work and get into her brother’s automobile. In
ELMORE v. OZMINT 23
his own car, Elmore stopped for gas at "the Pantry," and then
drove to Dunlap’s apartment, but no one was there. Id. at 836-
37. Elmore then drove back to the Pantry, where he stayed for
an unknown period of time before returning to Dunlap’s home
to look for her. See id. at 837 (Elmore’s testimony that he did
"not exactly" know how long he stayed at the Pantry, but "I
think it was around ten-thirty or eleven or somewhere in
there. I’m not sure what time").
On cross-examination, the State confronted Elmore with a
written statement — made on the day of his arrest (Wednes-
day, January 20, 1982) to Lieutenant Henderson of SLED —
asserting that Elmore had been with Dunlap and her family
members between 9:30 p.m. and midnight that Saturday.
Although Elmore acknowledged that he signed the statement,
he denied that he had actually read it. He also explained:
When I was down there at the law enforcement cen-
ter [during the morning of his arrest], they kept, you
know, asking me all kinds of questions and stuff. I
didn’t know what was going on. I just might have
said anything, but I know what happened. . . . When
I got there [to Dunlap’s apartment] first, wasn’t
nobody there, so I went up to the store.
J.A. 876-77. Anticipating rebuttal testimony of Dunlap and
her family members that Elmore did not arrive back at the
apartment until about 12:30 a.m. — and then with an unex-
plained lacerated lip — the State asked Elmore if it was not
"[t]he truth of the matter . . . that when you got finished with
your business there at [Mrs. Edwards’s house] on that night
a little bit after twelve-fifteen, you [only then] got down yon-
der to where those people [Dunlap and her family] were." Id.
at 890. Elmore responded, "No, sir," and stood by his testi-
mony that he had told Dunlap that night that he injured his lip
by slipping on ice on the outside stairs to her apartment. Id.
24 ELMORE v. OZMINT
5.
In their rebuttal testimony for the State, Dunlap and her
family members asserted that they had encountered Elmore
around 9:45 p.m. on Saturday, January 16, 1982, and then did
not see him again until he appeared at Dunlap’s home nearly
three hours later, at about 12:30 a.m. During its case-in-chief,
the State had also questioned Dunlap about Elmore’s attire
when he arrived at her apartment:
Q. Now, did he [Elmore] take off this coat?
A. Yes, sir.
Q. When he took off the coat, what if anything did
he do with his shirt?
A. Well, he took his coat off and asked me did he
have any clothes at my house, and I told him
no, so he unbuttoned on the button on his shirt.
Q. Unbuttoned on his shirt?
A. He unbuttoned on one button on his shirt and
then ripped it the rest of the way.
***
Q. Then what did he do with it?
A. Threw it on the floor.
***
Q. What did you do?
A. I picked it up and threw it in the trash.
ELMORE v. OZMINT 25
Q. Did he have on any undershirt?
A. Yes.
1984 Trial Tr. 867-68. Dunlap was not asked and did not
explain why she "threw [Elmore’s button-front shirt] in the
trash." Neither Dunlap nor her family members testified to
seeing (or not seeing) any blood on Elmore’s button-front
shirt, undershirt, coat, pants, or shoes, and not one of those
witnesses was specifically questioned as to whether blood was
visible on any of Elmore’s clothing.
6.
The State presented other evidence to undermine Elmore’s
credibility and to demonstrate that he had a guilty conscience,
including testimony establishing that Elmore broke his prom-
ise to return to Mrs. Edwards’s neighborhood the Monday
after the crimes (January 18, 1982) to finish cleaning another
customer’s windows — though he finished the job that Tues-
day. There was also testimony about statements Elmore made
on Wednesday, January 20, soon after his arrest. Late Tues-
day night or early Wednesday morning, during an argument
at her apartment, Dunlap had told Elmore that, if he did not
leave the premises, she was going to report him to the police.
Elmore accompanied Dunlap to a convenience store to make
the call, and then they returned to the apartment, where
Greenwood police officers arrived minutes later. After being
advised by the officers that they wanted to talk to him, Elmore
agreed to go with the officers to the Greenwood Law Enforce-
ment Center. There, around 2:45 a.m. on Wednesday, January
20, Perry A. Dickenson, a city police detective, informed
Elmore that he had been charged with murdering Mrs.
Edwards, advised him of his rights, and began questioning
him about the murder. As Dickenson described the interroga-
tion, "I . . . asked [Elmore] if he knew who Mrs. Dorothy
Edwards was. He said no, he did not. I explained she lived at
26 ELMORE v. OZMINT
209 Melrose Terrace. He then expressed that he did not know
where Melrose Terrace was at." 1984 Trial Tr. 924.
The trial evidence reflected that, a short time later, at
approximately 3:15 a.m., Major James T. Coursey and Lieu-
tenant Johnson of the Greenwood City Police Department
arrived at the law enforcement center with the warrant autho-
rizing Elmore’s arrest for Mrs. Edwards’s murder. Johnson
read Elmore the warrant, and Coursey again advised Elmore
of his rights. Thereafter, according to Coursey,
I asked [Elmore] if he knew Mrs. Dorothy Edwards
over at 209 Melrose Terrace. He stated he did not.
Then I asked him, "Do you mean to tell me that you
do not know Mrs. Edwards, the elderly lady who
lives at 209 Melrose Terrace? That’s the street
behind the First Baptist Church, which is off of
Grace Street." Again, he told me he did not know
her. I said, "You’re telling me that you did not do
any gutters or windows for Mrs. Edwards?" He said,
"I do windows and gutters, but I did not do any for
Mrs. Edwards." I said, "Well, I have a check from
her to you, made out to you and endorsed by you,
cashed by you, for forty-three dollars. I’ll go get the
check if you want to see it." He hesitated briefly, and
then told me that he did know Mrs. Edwards.
J.A. 746. Later that day, Elmore was transported to SLED
headquarters in Columbia, where he made the written state-
ment to Lieutenant Henderson. That afternoon, according to
Henderson, Elmore verbally stated that, "[i]f in fact he did kill
Mrs. Edwards, that he did not remember doing it." Id. at 757.
C.
The closing arguments proceeded as follows: lawyer Beas-
ley argued for Elmore, the prosecutor then argued for the
State, and, finally, lawyer Anderson spoke for Elmore. The
ELMORE v. OZMINT 27
State’s closing argument emphasized evidence that the crimes
had occurred on the night of Saturday, January 16, 1982. See,
e.g., J.A. 924-25 ("Was that house broken into that night?
What time does the paper get there? Between five-thirty and
six in the morning. . . . Did [Mrs. Edwards] get her paper?
Huh-uh."); id. at 946 (describing Mrs. Edwards as "a little
lady seventy-five years old, . . . in her home, with her alarm
clock set, with her coffee maker set, there watching T.V. with
just a housecoat on . . . ; and then for her not to take that trip
she was planning the next morning; and then for that neighbor
to come over there and to find her with her little body battered
as bad as you’ll ever hear tell of a body being battered, dead,
with her pocketbook on the floor, . . . the clutch bag gone and
no money left in the house"). The prosecutor also observed
that, although SLED Lieutenant DeFreese had acknowledged
that Elmore’s thumbprint on the exterior back door frame may
have been as much as a month old, "what he told you was that
his impression when he put on the fingerprint dust and his
impression when he looked at it was that it was of recent ori-
gin." Id. at 943-44.
The prosecutor addressed the hairs found on Mrs.
Edwards’s bed in the course of arguing that she had been the
victim of rape:
[L]et’s go in there to her bed. Turned down, little pil-
low, but down below, slightly diagonally towards the
bottom, was rumpled and crumpled; and over there
on that bed — and if you doubt anything that I’m
saying to you on this, as far as testimony, come out
and have it read back to you, because Mr. Parnell
[SLED Agent Parnell] — remember that name —
said that in an area eighteen inches wide by about
three feet long, he gathered up what? The hairs. How
many of them? Two or three? Oh, Lord, no. Oh,
Lord, no. How many? Forty-something. Forty-
something. Forty-nine. Forty-nine. Two of them
were her head hairs, two of them were her pubic
28 ELMORE v. OZMINT
hairs, and then forty-five of them were those red
hairs; and [forty]-one of the forty-five were what
shape? Forty-one of the forty-five had been pulled
out by their roots. . . . [Y]ou heard him [SLED Lieu-
tenant Wells] say something else about this red hair
that was there, and when we speak of the origin, be
it Oriental or Caucasian or Negroid, it is of necessity
that we do, and I beg none of you to feel as if that
we might be leaning one way or the other. Please
don’t. It’s just that we are pointing out to you what
this specialist said that it was. It was a Negroid hair,
of Negroid origin, it was red; and what else did he
say? He said that there was banding. . . . He said that
was a very rare thing. What else did he say about it?
He said he’d been down there for eight or nine years
examining hairs on top of hairs on top of hairs on top
of hairs, and that what? Had never seen this before.
Gosh, how coincidental. How singular it is for this
man and — listen — this Defendant to have identical
hairs. This specialist up on the stand said that his
conclusion was that there was a high degree of prob-
ability that those forty-one hairs — forty-five, forty-
one pulled out by their roots — came from this
Defendant.
J.A. 930-32. Tying the presence of the hairs to rape, the pros-
ecutor argued:
Could it have been that it was just plumb horrifying
to her whole psyche, to the gentleness of woman-
hood, that there on her bed she was being pene-
trated? The act alone, to say nothing of the actual
physical pain, would be so repulsive. Aren’t we quite
sure that maybe she could not help but reach and
grab a handful of anything she could grab? And it
turned out to be the pubic hairs, the red ones, with
banding . . . .
ELMORE v. OZMINT 29
Id. at 936.
Turning to the blood evidence, the prosecutor referred to
blood "[a]ll over those shoes; it had ridden up high. What
kind? Type A." J.A. 945. The prosecutor also alluded to "a
bloody shirt" in discussing the testimony of Elmore’s former
girlfriend, Mary Alice Dunlap, and her family members. Id.
at 935 ("They may go far enough to not want to get involved
with a bloody shirt. Only God knows how that shirt disap-
peared.").9
The prosecutor remarked that the case against Elmore was
not built entirely on circumstantial evidence, invoking direct
evidence such as Elmore’s jailhouse confession to James Gil-
liam. See J.A. 921 ("Is it circumstantial evidence when the
Defendant tells Mr. Gilliam what he did? Huh-uh. That’s
direct evidence. That’s coming from the horse’s mouth.").
The prosecutor lamented that Gilliam himself "was put on
trial here today because he came and told you" what Elmore
had confessed. Id. On the substance of that confession, the
prosecutor recounted: "What all did [Elmore] say to this Mr.
Gilliam over here? He said, ‘If you have sex with somebody
and then clean yourself up, can they tell it?’ Mr. Gilliam says
[Elmore] also told him that they wouldn’t find no fingerprints
there, because he rubbed down, cleaned off things." Id. at 942.
The prosecutor also discussed Gilliam’s testimony that
Elmore had told him Mrs. Edwards "started screaming and
9
Although Dunlap and her family members did not testify that Elmore’s
shirt was "bloody," and Dunlap explained how it "disappeared" (i.e., she
"threw it in the trash"), Elmore’s trial counsel did not object to the prose-
cutor’s closing argument. In the initial argument on behalf of Elmore,
however, lawyer Beasley had underscored that "there has been no testi-
mony by anyone as far as blood being seen on Edward when he went over
to [Dunlap’s] house, when they saw him there that night, after the State
says this horrible crime happened. No testimony whatsoever as to him
being splattered with blood or anything." J.A. 911. Lawyer Anderson re-
emphasized that point in the final argument, when he argued that neither
Dunlap nor her family members "said they saw any blood." Id. at 954.
30 ELMORE v. OZMINT
she wouldn’t stop, ‘so I had to kill her.’" Id. at 947 (arguing
that Mrs. Edwards "[d]one had part of her teeth knocked out
in the kitchen, done had blood brought and was dripping it on
the floor, and being taken to her bedroom, certainly against
her wishes, who wouldn’t scream, who wouldn’t cry out,
‘God Almighty, help me’").
Additionally, the prosecutor pointed out that Elmore’s alibi
for Saturday night had been refuted by Dunlap and her family
members, even though Dunlap must once have had, and likely
yet possessed, "emotions for [Elmore]." J.A. 934. And, the
prosecutor excoriated Elmore for initially denying to police
that he knew Mrs. Edwards. See id. at 933 ("There’s an old
Latin phrase [meaning] ‘False in one, false in all.’ What’s he
trying to hide there? Why is he denying that? . . . Why is he
telling a falsehood when he said, ‘I do not know her.’"). The
prosecutor also reminded the jury of Elmore’s statement that
"if he killed Mrs. Edwards, he couldn’t remember," suggest-
ing that such statement was inculpatory. Id. at 934.
In his initial argument on behalf of Elmore, lawyer Beasley
identified arguable areas of reasonable doubt, including Lieu-
tenant DeFreese’s acknowledgement that Elmore’s thumb-
print could have been on the back door frame "a month or
longer." J.A. 914 (adding that, "[o]f course, [Elmore] testified
to the fact that he’d been working around there back the latter
part of December, . . . [s]o his prints could have been any-
where"). Beasley also noted the lack of certainty that the hairs
found on Mrs. Edwards’s bed belonged to Elmore or that the
Type A blood found on Elmore’s clothing came from Mrs.
Edwards. See id. at 911 ("They can only say that [the hair is]
consistent with [Elmore’s], so that within itself would defi-
nitely not be sufficient."); id. at 912 ("I think forty-two, forty-
three percent or forty-five percent — I don’t recall exactly,
but I’m sure you will — have A type blood, so it’s a very
ELMORE v. OZMINT 31
common type blood. . . . So far as what length of time [the
blood was] there, we don’t know . . . .").10
Additionally, Beasley underscored that the extensive search
of Elmore’s car, which included a thorough vacuuming,
yielded no inculpatory evidence. Beasley also noted that, con-
trary to the State’s theory that Elmore had a guilty conscience,
he both worked in Mrs. Edwards’s neighborhood the day after
the body was discovered and willingly met up with the police
that night. As Beasley recounted the evidence,
when [Elmore] went down to his girlfriend’s house
on . . . the Tuesday night that he got arrested, he was
there and his girlfriend said, "I don’t want you here.
Leave. If you don’t leave, I’m going to call the
police." Rather than leaving, he even gets in the car
with her and rides down — she didn’t have a tele-
phone — and rides down to the Quick Way or what-
not while she uses the telephone and calls the police
department. He knows she’s called the police to
come to her house. He stays there, knowing the
police are coming. They come and arrest him. He
knows they’re coming.
J.A. 912-13. Beasley deemed it significant that, once arrested
for Mrs. Edwards’s murder, Elmore was subjected to dogged
interrogation by the city police and SLED agents, but "kept
denying he had anything to do with it." Id. at 913-14.
Although he identified those areas of arguable reasonable
doubt, Beasley also vouched for the investigators, proclaim-
10
In addressing "the footprint that the State kept talking about" — a ref-
erence to one of the two bloody footprints found at the scene — Beasley
argued that there was a notable absence of "any match up of the footprint
with the boots which [Elmore] has admitted that he was wearing," in that
"we all know that you can take footprints and match them . . . with the sole
of a shoe." J.A. 910.
32 ELMORE v. OZMINT
ing: "I think at SLED they are recognized as being one of the
best departments or probably as good as the F.B.I. They have
a very fine department, and they have very good personnel,
and they are experts at everything they do." J.A. 913. Further-
more, Beasley acknowledged that his presentation may not
have been comprehensive, advising the jury:
So if you take all of these that I’ve gone over, now
— and I’m sure there’s several more — but you can
see from all this that this isn’t enough to really con-
vict anybody on. Of course, that’s in your province.
Of course, I’m just reviewing these few with you.
There’s probably a lot more.
Id. at 915.
In the final argument on Elmore’s behalf, lawyer Anderson
alluded to the uncertainty surrounding the forensic evidence.
See J.A. 949 ("There was never any expert testimony from
individuals from SLED that pinpointed Edward Lee Elmore
as the wrongdoer in this case. . . . The most I heard was high
probability, a high degree of probability."). Anderson
expressed the view that "the most damaging thing about the
case" was not the forensic evidence, but rather James Gil-
liam’s testimony about Elmore’s jailhouse confession. Id.
("[C]ertainly it’s going to be hard to go back there and try to
deliberate in a reasonable fashion with Mr. Gilliam’s testi-
mony staring you in the face."). Anderson then outlined the
various reasons that Gilliam’s story "makes absolutely no
sense at all." Id. at 951.
Thereafter, Anderson attempted to poke a few more holes
in the State’s case, pointing out the inconsistency between
Elmore’s alleged eradication of evidence inside Mrs.
Edwards’s home, but failure to wipe away his thumbprint on
the exterior door frame or to destroy the clothes he had been
wearing that Saturday night. See J.A. 953 ("Of course, they
tried to imply that he wiped off all the inside prints. If he had
ELMORE v. OZMINT 33
that much sense, why wouldn’t he know where the prints
were on the outside? They want you to believe he was push-
ing up against there when he went in."); id. ("[W]hy in the
Lord’s name wouldn’t he get rid of his clothes, instead of tak-
ing them on home and leaving them down in the closet? Or
wherever they were found in his room in Abbeville with his
mother back there."). Anderson also provided an explanation
for the blood on Elmore’s clothing: "This fellow climbed
around houses all the time. It’s what he did for a living, been
doing it for years. . . . You’re going to have some nicks and
cuts working, if you ever work with your hands. You can’t
help it." Id. at 954.
Referring to the police investigators, Anderson conceded
that
I left them people alone. I don’t know anything
about that. I couldn’t come in here and cross-
examine that fellow [specifically referring to the
SLED blood examiner, Agent Barron]. He would
have tore me up, and tore me up anyway, I reckon.
All I did was talk about the [unknown age of the
blood]. You noticed that. I stayed away from him.
Man, they’re trained. They’re ready for me. They’ve
been here every day. They’re ready for me. Loaded
for bear. I stayed away from them. I can’t cross-
examine them. Nobody can. They do this every
week.
J.A. 955. Anderson nonetheless requested the jury to "think
long and hard about . . . the [Type A] blood on the shoe,"
warning that "[a]ll we have is that fellow’s [Barron’s] word,
and I certainly hope and pray for [Elmore’s] sake that [Barron
is] telling the truth." Id. at 956. Finally, Anderson implored
the jury to "[l]isten to the others, but if you feel like there is
reasonable doubt, stick by your convictions." Id. at 958.
Following the closing arguments, the twelve jurors received
their instructions and deliberated for approximately two hours
34 ELMORE v. OZMINT
before unanimously finding Elmore guilty of murder, criminal
sexual conduct, and burglary. Thereafter, in the sentencing
phase of the 1984 trial, and again in the 1987 sentencing-
phase-only trial, the jury recommended and the trial court
imposed the sentence of death.
III.
Significantly, in his state PCR proceedings, Elmore — rep-
resented by new lawyers — challenged each of the key pieces
of the State’s case against him in the 1984 trial. In pertinent
part, Elmore asserted the following:
• The illogical statements and bizarre conduct of
Mrs. Edwards’s neighbor, Greenwood County
Councilman Jimmy Holloway, rendered him the
probable murderer, and indeed he was an unpur-
sued and undisclosed early suspect;
• As a matter of science, there was less than a 1%
chance that Mrs. Edwards died on the night of
Saturday, January 16, 1982, contrary to the
State’s theory and the (evidently staged) circum-
stantial evidence that the murder occurred that
night. It was vastly more likely that Mrs.
Edwards died on Sunday afternoon, when Elmore
had a corroborated alibi;
• The forty-five pubic hairs matched to Elmore and
allegedly found on Mrs. Edwards’s bed were
never there, as demonstrated by irregularities
such as the investigators’ baffling failure to pho-
tograph the hairs while still on the bed, to collect
the bedcovers and sheets for further laboratory
analysis, or to package the hairs like other evi-
dence taken from the scene;
• The scant amount of blood on Elmore’s clothing
— no blood was observed on his white button-
ELMORE v. OZMINT 35
front shirt, and there were just a few areas of
blood on his coat, pants, and shoes — tended to
demonstrate both that Elmore was not the perpe-
trator of the gruesome murder and that the blood
was planted on his clothes (a possibility further
suggested by a dubious link in the chain of cus-
tody);
• A Caucasian hair recovered from Mrs. Edwards’s
bloody abdomen during her autopsy — a hair that
belonged neither to the victim nor Elmore, and
that had been wrongly suppressed by the State —
pointed away from Elmore and toward a white
perpetrator such as Holloway;
• A fingerprint lifted from the blood-smeared toilet
in Mrs. Edwards’s en suite bathroom was falsely
reported to be unidentifiable, and it had secretly
been determined that neither the victim nor
Elmore was the source of the print, further excul-
pating Elmore and incriminating someone else;
• Critical prosecution witness James Gilliam had
fabricated Elmore’s alleged jailhouse confession
— as Gilliam himself now admitted — after
being approached by the jail administrator and
asked for "help" on the "Elmore thing"; and
• Elmore’s low IQ and severe memory deficits not
only explained inconsistencies in his statements
to police and court testimony, but also made it
highly improbable that Elmore was responsible
for the state of the Edwards crime scene, includ-
ing the concealment of Mrs. Edwards’s body.
Elmore’s PCR application included claims — some of
which are encompassed in the Fourteenth Amendment due
process claim now before us — alleging that the State sup-
36 ELMORE v. OZMINT
pressed exculpatory evidence and knowingly presented false
testimony with respect to Holloway’s possible culpability for
the crimes, the hairs allegedly found on Mrs. Edwards’s bed,
the undisclosed hair recovered from her abdomen, the finger-
print left on Mrs. Edwards’s toilet, and Gilliam’s since-
repudiated account of Elmore’s confession. The PCR applica-
tion also included a multi-faceted claim of ineffective assis-
tance of counsel — a broader version of the Sixth
Amendment ineffective assistance claim in these proceedings
— asserting that "trial counsel failed to conduct an adequate
and independent investigation of [Elmore’s] case in order to
develop and present evidence to create a reasonable doubt as
to [Elmore’s] guilt or to effectively cross-examine the state’s
witnesses." J.A. 3122-23. The PCR application specified
numerous instances of ineffective assistance, including trial
counsel’s performance with respect to the testimony of Hol-
loway, Gilliam, and Elmore himself, as well as the time-of-
death, hair, blood, and fingerprint evidence. The state PCR
court rejected each of those claims by its orders of July 3,
1997 (the "First PCR Order"), and of February 21, 2001 (the
"Second PCR Order").11
IV.
A.
During the proceedings culminating in the First PCR Order,
the state PCR court conducted its evidentiary hearing from
February 27 to March 4, 1995, and the parties submitted addi-
tional evidence for the court’s consideration, including tran-
scripts of pre- and post-hearing depositions. Following is a
11
At the time of the First PCR Order and the Second PCR Order, the
named respondent in the PCR proceedings was Parker D. Evatt, then-
Commissioner of the South Carolina Department of Corrections, referred
to as the "State" in our discussion of the PCR proceedings. (The First PCR
Order is found at J.A. 3136-3319, and the Second PCR Order at J.A. 3679-
84.)
ELMORE v. OZMINT 37
review of the evidence adduced during those proceedings rel-
evant to Elmore’s Sixth Amendment claim of ineffective
assistance of his 1984 trial counsel, as well as his Fourteenth
Amendment claim of due process violations committed by the
State.12
1.
Elmore presented five expert witnesses to the state PCR
court who were profuse in their criticism of the Edwards mur-
der investigation. Indeed, Vincent J. Scalise — a self-
employed consultant and retired New York City police detec-
tive certified by the American Board of Forensic Examiners
as a forensic examiner and behavioral profiler — testified to
his impression that "there wasn’t much of an investigation
conducted at all." J.A. 2930. Rather, as Scalise described it,
"Mr. Holloway [Mrs. Edwards’s neighbor] arrived on the
scene at approximately 12:10, and within an hour or two . . .
there was a suspect in this case, namely Mr. Elmore, and . . .
from that point in time the whole case was built around Mr.
Elmore to the exclusion of anyone else." Id.
a.
According to Scalise, "[t]he most likely suspect that should
have been investigated would be the person who found the
body": Jimmy Holloway. J.A. 2931.13 Scalise deemed "some
12
This review excludes the undisclosed Caucasian hair that the authori-
ties recovered from Mrs. Edwards’s bloody abdomen during her autopsy,
which is discussed in conjunction with the Second PCR Order. See infra
Part V.
13
By all indications, Scalise’s opinions were principally drawn from his
review of transcripts and evidentiary records of Elmore’s three trials,
although he also was provided with an affidavit of one of Elmore’s PCR
lawyers, Diana Holt, detailing her interview of Holloway in July 1993,
while Holt was a law student interning with the South Carolina Death Pen-
alty Resource Center. According to Holt’s affidavit, Holloway told Holt
during their initial conversation, inter alia: that he was "‘the only one who
38 ELMORE v. OZMINT
of the statements that [Holloway] made" to be "rather incon-
sistent and strange," including that Holloway — Mrs.
Edwards’s self-described protector — did not check on Mrs.
Edwards until mid-day Monday despite observing signs that
she had not left town early Sunday morning as planned. See
id. at 2931-32. Scalise also noted Holloway’s "very, very
detailed observations" about the state of Mrs. Edwards’s
home as he walked through it looking for her, including his
emphasis on details suggesting a Saturday night murder, such
as the newspapers lying outside the house, the pre-set coffee-
pot, and the ringing alarm clock. See id. at 2933-36 (explain-
ing that "[i]t would seem to me that he’s trying to set up a
time frame"). Additionally, Scalise pointed out that — after
seeing signs of a disturbance in the kitchen area (including
Mrs. Edwards’s partial denture plate and the needle-nose pli-
ers on the floor), blood smears in the en suite bathroom, and
significant amounts of blood in the area near the bedroom
closet — Holloway simply "left the scene" without opening
the closet door. See id.
could kill [Mrs. Edwards] and get away with it, the way she trusted me,’"
J.A. 3059; that "he was ‘under suspicion at first,’" but told the police he
did not murder Mrs. Edwards and pointed them toward Elmore, id. at
3061; and that "SLED allowed him ‘to come in and watch while they did
the crime scene investigation,’" id. at 3062. During subsequent conversa-
tions, Holt’s affidavit reflects, Holloway noted that he had been chastised
by SLED’s Thomas W. Henderson, Jr., "‘for telling someone else they had
a suspect by 3:00 p.m.’" Id. at 3063. Holloway also revealed that "‘[o]ne
of the reasons the cops questioned me is the neighbors probably told them
me and Dorothy [Edwards] were having an affair.’" Id.
As a result of his death in the summer of 2004, Holloway could not be
called to testify during the PCR proceedings. See J.A. 2942-43. Accord-
ingly, the State objected to Holt’s affidavit as hearsay and moved to strike
Scalise’s testimony for being premised thereon. It does not appear from
the record that the state PCR court ever ruled on the State’s motion to
strike. See, e.g., First PCR Order 75 n.1 (referring to motion as "still pend-
ing"). Moreover, the First PCR Order takes into account Scalise’s evi-
dence.
ELMORE v. OZMINT 39
Scalise characterized it as "very, very strange" that, rather
than immediately calling police, Holloway went to Mrs.
Clark’s house "and started to call hospitals." J.A. 2935. Sca-
lise also referred to Holloway "more or less conveniently [get-
ting] a witness" before returning to Mrs. Edwards’s house. Id.
at 2934. And, Scalise used the word "bizarre" to describe Hol-
loway’s act of putting on a pair of gloves before finally open-
ing the closet door. Id. at 2935. Scalise further testified on
direct examination as follows:
Q: What is the significance to you of the fact that
Mr. Holloway before discovering the body in
the presence of a witness put on gloves?
A: It is extremely suspicious. Why would Mr. Hol-
loway put on gloves to open the closet door? It
was obvious, first of all, when he donned the
glove[s], he knew what was behind the door.
Why else would you open the door with gloves
on so as not to leave his prints on the closet
door?
Q: To your knowledge, was any effort made to
investigate whether or not Mr. Holloway had
articles of clothes, shoes or other articles of
clothes, that had evidence of blood on them?
A: I saw no indication of that whatsoever. Neither
the shoes nor the clothes nor the gloves.
Q: So that even the gloves that he donned before
discovering the body, those were not taken or
examined.
A: Nothing.
Q: In your opinion, would it have been customary
for those articles to have been located and
investigated?
40 ELMORE v. OZMINT
A: Surely they should have been examined.
Id. at 2947-48.
On cross-examination, the State sought to establish that
Holloway’s conduct was consistent with that of an innocent
and concerned — but self-protective — neighbor. The follow-
ing exchange is representative:
Q: It’s not unusual for people when they come
upon such things will seek out witnesses who
will also be involved in that situation to protect
themselves? That’s not unusual, is it?
A: If you are looking to protect yourself, it’s not
unusual, but I feel if you didn’t have any motive
to protect yourself, I don’t think that would be
the first thing that would come to mind, that I
would need a witness.
Q: It’s not unusual; that’s why people have some-
body else frequently go through crime scenes or
potential crime scenes or unusual situations
with them?
A: If we go along with that line of thinking, I
would be expecting Mr. Holloway as soon as he
saw the dentures and [needle-nose pliers]14 on
the [kitchen] floor . . . to leave and not go all
the way through the house until he gets to one
place where he’s most likely to find the body.
14
In this portion of his testimony, Scalise mistakenly referred to the bot-
tle tongs — rather than the needle-nose pliers — as being found on Mrs.
Edwards’s kitchen floor. Elsewhere, however, Scalise correctly noted that
the tongs were found protruding from a kitchen drawer. See J.A. 3014-15
(testifying that it was "obvious" that the tongs were "deliberately" left in
that position "so that they would be discovered").
ELMORE v. OZMINT 41
Q: That’s not all he did. He also called the hospital
to see if Mrs. Edwards was there.
A: Yes.
Q: Resolving that Mrs. Edwards wasn’t in the hos-
pital, then he resolved to look in the location.
A: I sort of feel he did things backwards.
Q: You do?
A: Yes.
Q: You think he should have immediately gone to
the closet and open[ed] the closet door expect-
ing to find a dead body there?
A: Why would he expect to find a dead body? . . .
Mrs. Edwards may have been injured behind
the closet door, and by the time he called the
hospital and [came] back, Mrs. Edwards could
have been dead. If I was concerned about Mrs.
Edwards’ security and was a friend of the fam-
ily, my first thought would have been to render
first aid to Mrs. Edwards if she could possibly
have been injured before I go and call the hos-
pital and get another witness and come back.
J.A. 2992-94. Scalise acknowledged that he was "not saying"
that Holloway murdered Mrs. Edwards; nonetheless, he found
Holloway’s statements and conduct "[s]uspect" and "worthy
of inquiry." Id. at 2997. Indeed, on redirect examination, Sca-
lise deemed it "inconceivable" that Holloway did not immedi-
ately open the closet door. Id. at 3017.
Also during his testimony, Scalise underscored that "it was
Mr. Holloway who actually . . . pointed the finger at Mr.
42 ELMORE v. OZMINT
Elmore. Mr. Holloway stated that he felt Mr. Elmore was a
suspect in this case, and Mr. Elmore became not only the sus-
pect but the defendant in very, very short order on the basis
of information supplied by Mr. Holloway." J.A. 2938.
According to Scalise, however, it was "highly unlikely that
Mr. Elmore was the perpetrator of this crime." Id. at 2944.
Scalise explained:
I would have suspected if someone like Mr. Elmore
had committed the crime, number one, I would see
no reason why he would have secreted the body in
the closet. The body would have stayed where it fell.
And certainly if he was bent on larceny, I am sure he
would have taken more than a clutch bag when jew-
elry was visible and silverware was visible and many
other things were visible. There weren’t that many
drawers open and not that many things disturbed. It
just didn’t fit, as far as I am concerned, a crime that
would have been committed by Elmore in any man-
ner, shape or form.
Id. at 2939. Elaborating on that testimony, Scalise further
explained that he could not "conceive of Mr. Elmore . . . ,
with an IQ of apparently 70, picking up the body and secret-
ing it. I would see no reason. If Elmore had been the perpetra-
tor . . . , I would expect that he would just leave the body
where it fell and flee the scene." Id. at 2945; see also id. at
3001 ("Normally when you get a break-in, particularly a
break-in with somebody with a very, very low IQ, they are in
there for one purpose, to do damage and to take money, and
they don’t take time to stop and start to conceal bodies.").
Rather than suggesting Elmore as the culprit, Scalise
opined, the evidence signified "an organized crime that was
made to look like a disorganized crime." J.A. 2945 (adding
that "some planning went into this, let’s put it that way. I
don’t think it was a random act"). On cross-examination, Sca-
lise explained that, "[b]asically, the fact that the body was
ELMORE v. OZMINT 43
secreted in the closet leads me to believe someone felt they
had to hide this body in preparation for finding it as opposed
to someone who would just go in, beat an elderly woman to
death and then leave the premises." Id. at 2998-99. He further
testified:
A: . . . . Where you do find evidence of conceal-
ment is . . . in cases of serial murders or cases
of people who have a reason for not having a
body found, so it would not be traced back to
them. People who are likely possible to become
under suspicion. It i[s] extremely rare to find a
scene of a rape or a scene of some sort of homi-
cide where the victim is unknown to the perpe-
trator for the perpetrator to secret a body. There
is no reason for it.
Q: But the victim was not unknown to the perpe-
trator here, was it, under the state’s theory of
the case? Mr. Elmore knew Mrs. Edwards?
A: Right. I really don’t know, but I take for
granted that Mr. Elmore did not frequent Mrs.
Edwards’ house. He had been there once, I was
informed, to do chores. It’s not like he was
going to come back the next day.
Id. at 3001-02.
In his testimony during the PCR proceedings, SLED’s
Thomas W. Henderson, Jr., a lieutenant and general investiga-
tor at the time of the Edwards murder investigation, con-
firmed that Holloway had been an early suspect. See J.A.
1709, 1722-23. Henderson had set off alone from Columbia
on Monday, January 18, 1982, shortly after the reported dis-
covery of Mrs. Edwards’s body, to assist the Greenwood City
Police Department, and met up with SLED forensic special-
ists already on the scene. See id. at 1711-12, 1715. According
44 ELMORE v. OZMINT
to Henderson, "we [referring to himself and the city police]
did consider the man who had found [Mrs. Edwards’s] body,"
but "had no evidence to say he was [the perpetrator] except
he’s the one who found the body." Id. at 1722. Henderson
ruled out that man (Holloway) as a suspect "at some point,"
id. at 1723, and quickly became convinced that Elmore was
the guilty party.
Henderson conceded that, at least by Friday, January 22,
1982, "we had firmly reached the conclusion that [Elmore]
was the person who had murdered Dorothy Edwards." J.A.
1743. On that date, Henderson had completed a written
request for SLED laboratory analysis of evidence, including
"‘[v]acuum bag samples from floor of car driven by Edward
Elmore on day he murdered Dorothy Edwards.’" See id. at
1787. Thirteen years later, Henderson acknowledged that
"[i]t’s probably a bad choice of words I put on there." Id. at
1743. And he explained that, although "[m]y conclusion at
that point was that, yes, [Elmore] had murdered Dorothy
Edwards," "the investigation was not over [a]nd I’m always
open to new evidence or conclusions to change my mind." Id.
at 1744. Pressed to specify when he concluded that Elmore
was the murderer, Henderson responded that he "probably"
reached that conclusion by Wednesday, January 20, 1982, the
day that he interrogated Elmore first at the Greenwood Law
Enforcement Center and then at SLED headquarters in
Columbia. Id.
Henderson revealed in his PCR testimony that he was
"[n]ot necessarily assigned" to the Edwards murder investiga-
tion, but rather went to Greenwood within hours of the dis-
covery of Mrs. Edwards’s body "[b]ased upon my own
initiative." J.A. 1709. Asked "[h]ow did this homicide come
to your attention," Henderson responded that, while he was at
home in Columbia that day, he received a telephone call from
his mother reporting the murder. Id. at 1710. "Dorothy
Edwards," Henderson explained, "was my mother’s neigh-
bor." Id. Henderson’s parents had built a house across the
ELMORE v. OZMINT 45
street from the Edwards home when Henderson was in the
eighth grade, and he had known Mrs. Edwards, a friend of his
mother as well as a neighbor, since then. See id. at 1761.
Asked whether Holloway was "also an acquaintance of your
mother[ ]," Henderson responded simply, "Yes." Id. at 1723.
During the questioning by Elmore’s PCR counsel about how
he came to be involved in the Edwards murder investigation,
Henderson acknowledged that "I know where you’re headed,"
and sought to explain that "I’m a state police officer and I
have jurisdiction statewide. It’s policy at SLED that agents
that achieve a certain rank, which I had, could assume cases
on their own initiative." Id. at 1711.15
b.
Dr. Jonathan Arden, the Acting First Deputy Chief Medical
Examiner for the City of New York, identified various defi-
ciencies in the autopsy performed by Dr. Sandra Conradi and
her reporting thereof. Dr. Arden’s most significant testimony,
however, related to his opinion that it was "extraordinarily
unlikely and improbable really in the extreme" that Mrs.
Edwards had died on the night of Saturday, January 16, 1982.
See J.A. 2252. Rather, Dr. Arden’s "best estimate" was that
Mrs. Edward’s death occurred between 11 a.m. and 3 p.m. —
or even "a little later" — on Sunday, January 17. Id. at 2251.
Dr. Arden acknowledged that "[i]t would be unfair and unrea-
sonable for me to say that [a Saturday night death] is physi-
cally impossible," but he emphasized that "it is so incredibly
unlikely that I cannot believe that that was the case." Id. at
2252 (adding that "I strongly hold the opinion that Mrs.
15
Henderson testified in a deposition conducted prior to the state PCR
court’s evidentiary hearing and noticed by Elmore’s counsel, who also
took pre-hearing depositions of SLED’s Ira Byrd Parnell, Jr., Frank Dan
DeFreese, Earl Wells, and John C. Barron. The State called Parnell,
DeFreese, Wells, and Barron — but not Henderson — as hearing wit-
nesses. Other forensic witnesses discussed herein (both for Elmore and for
the State) testified during the hearing, except Scalise, who was unavailable
and instead gave a post-hearing deposition.
46 ELMORE v. OZMINT
Edwards was not killed Saturday night as claimed"). He also
testified on direct examination as follows:
Q: If you are not comfortable doing this I under-
stand, but could you give us at least an approxi-
mate range of possibility? Is there a twenty
percent change that she was killed on Saturday
night, a ten percent chance? What would you
assign if I forced you to assign a percentage?
A: If you forced me to assign a number to some-
thing that is really not numerical, I cannot
imagine going as far or any farther than one
percent possibility. I think one percent may be
overestimating.
Q: So it would be less than a one percent chance
that that body could have remained all that time
and still have the rigor and the other signs, no
decomposition and the other things that you
observed on the autopsy findings?
A: Yes, sir.
Id. at 2252-53.
On cross-examination, the State established that Dr. Arden
was aware of the "historical information" concerning Mrs.
Edwards’s time of death, including the Sunday and Monday
newspapers lying in the driveway, the burning coffeepot, the
ringing alarm clock, the TV Guide left open to the listings for
Saturday night, and Mrs. Edwards’s unfulfilled plan to leave
town Sunday morning. See J.A. 2288-89. On redirect exami-
nation, however, Dr. Arden questioned the value and interpre-
tation of that circumstantial evidence, explaining:
I am aware of the newspaper. I am aware of the other
factors, of the coffeepot. I vaguely remember being
ELMORE v. OZMINT 47
aware of the alarm. I was made aware of the T.V.
Guide open to the telltale date. All of those are inter-
esting. All of those may turn out to be valuable. I
don’t discard any information lightly or without rea-
son. But most of those conflict, seriously conflict,
with the information provided by the body. I cannot
explain away her rigor mortis. I cannot explain away
her postmortem condition. I cannot explain away
what the body is telling me because the T.V. Guide
was open to a certain page.
Id. at 2291-92.
In her testimony for the State, Dr. Conradi stood by her ear-
lier finding that "the absolute outer limits of the time of death
. . . was twelve hours prior to the time of autopsy to three
days." J.A. 2675-76. She further testified that, "[f]rom the
autopsy itself, I think the most likely range in that time frame
is two to three days. From the historical information — in
other words, all the information that was given to me [by the
police] — three days seems more likely than two days." Id.
at 2676. According to Dr. Conradi, because time of death was
a "very controversial area in forensic pathology" and "very
fraught with hazards," she "tend[ed] to give a wide range to
just make it all-inclusive and make sure that [she was] includ-
ing the probable area of the time of death." Id. She also
explained: "I prefer to give a broader range. And let the police
work out where in that range the actual time of death was."
Id. at 2677.
On cross-examination, Elmore’s counsel pointed out to Dr.
Conradi that, based on her testimony as to "the usual case,"
Mrs. Edwards "would have died sometime on Sunday after-
noon." J.A. 2720. Dr. Conradi explained that "there are too
many unusual cases to fall into that category each and every
time." Id. She also reiterated that, "I think, based on the
autopsy findings, two to three days is probably a good esti-
mate, but within that two to three days, I [scientifically] can’t
48 ELMORE v. OZMINT
be more specific. I put the sixty-five hours down [estimating
that Mrs. Edwards died on Saturday night] purely from what
the police and the coroner thought was the most probable time
of death." Id. Dr. Conradi’s testimony prompted the following
exchange:
Q: Dr. Conradi, if the police give you their guess
or their estimate as to when the time of death
occurred and you have evidence, direct evi-
dence, from looking at the body, based on your
expertise and your knowledge of these things,
like the rigor and the lividity, and it tells you
that this murder could not have occurred as long
ago as sixty-five hours, which is well outside
what you said is the usual range, wouldn’t you
report that? Wouldn’t that be significant to you,
that the police are telling you a time that seems
to you to be beyond what normally would occur
here?
A: Not if it was within my range. It was compati-
ble with my findings.
Q: But it was the absolute outside extreme of this
range?
A: Close to it. Within six, eight hours of the out-
side limit, but within possibility or probability
of my range.
Id. at 2721.
c.
Elmore’s forensic experts gave testimony tending to cast
doubt on the SLED agents’ assertion that they had recovered
the forty-five damning pubic hairs from Mrs. Edwards’s bed.16
16
Significantly, Elmore has conceded that the hairs are his. Neverthe-
less, he maintains that, rather than being recovered from the bed during the
ELMORE v. OZMINT 49
The expert testimony focused on, inter alia, the agents’
account of simply picking up the hairs and placing them in an
evidence bag, without first taking a single photograph of the
hairs and without discerning any need to collect the bedcovers
and sheets to examine them for further evidence. For exam-
ple, Hayward R. Starling, a self-employed forensic scientist
with nearly thirty-eight years of experience working for the
North Carolina State Bureau of Investigation, testified that "if
[he] had found hair on that bed," he "would have followed the
rule that is standard procedure in criminal investigation,
which would call for photographing of [the] bed in its original
state as it was found." J.A. 1949; see also id. at 2138 (testi-
mony of Rodger Morrison, head of the serology section of the
Huntsville regional laboratory of the Alabama Department of
Forensic Sciences, that "the general procedure" involved pho-
tographing the hair before it was collected); id. at 2930 (Vin-
cent Scalise’s testimony that the hair "should have been
photographed before [it] was collected showing [it] in the
exact location where it was noted or first observed").
crime scene investigation, the hairs were probably among those obtained
from him shortly after his arrest. See, e.g., J.A. 532-33 (1984 trial testi-
mony of Elmore that hairs were "yanked" from his head and pubic area
while he was being detained at the Greenwood Law Enforcement Center);
1984 Trial Tr. 644-45 (testimony of James T. Coursey of the Greenwood
City Police Department that he combed and plucked Elmore’s pubic
hairs); id. at 646-47 (testimony of SLED’s Thomas W. Henderson, Jr., that
he was present when Coursey obtained the hairs from Elmore). That the-
ory is consistent with the conspicuous omission of any reference to the
hairs in Coursey’s affidavit in support of the arrest warrant. According to
the SLED investigators, by the time the warrant was secured, they had
recovered the hairs from Mrs. Edwards’s bed, determined that the hairs
were of Negroid origin with an unusual reddish cast, and reported their
findings to the local police. Moreover, the record indicates that the local
police were aware prior to Elmore’s arrest that he had red hair. Even so,
the hairs appear nowhere in Coursey’s affidavit outlining the evidence
against Elmore; rather, the affidavit relies solely on the existence of
Elmore’s thumbprint on the exterior frame of the back door into the
Edwards home.
50 ELMORE v. OZMINT
Those expert witnesses also emphatically agreed that, to
conform with standard procedures, the SLED agents should
have collected the bedcovers and sheets. See, e.g., J.A. 1949
(Starling’s testimony that "I would have recovered the bed-
sheets, the bed covers upon which the hairs were found, in the
original state and delivered it to the lab, where it could have
been appropriately examined"); id. at 2137 (Morrison’s testi-
mony that "[y]ou always collect the bed linens"); id. at 2925
(Scalise’s testimony that "you most definitely would have col-
lected and safeguarded the sheets and any other coverlets that
were on the bed"). As Morrison explained, "[i]f you thought
the hairs which you found . . . were of importance, then you
would also want to collect the bed linens as well and look for
additional hairs, look for additional fibers, semen stains,
bloodstains, all these kinds of things, things which aren’t
obvious on the crime scene itself." Id. at 2137-38; see also id.
at 1950 (Starling’s testimony that "the hairs would have
drawn my attention to the fact that there might be some other
type of evidence on the sheets, such as seminal stains or other
body fluids"); id. at 2925 (Scalise’s testimony that "[a]nything
on the bed should have been collected . . . and brought back
for analysis," including testing for "traces of blood" and "pos-
sible sperm, saliva or any evidence, physical evidence, of that
nature").
Additionally, Elmore’s experts related that — if, as the
State alleged, Elmore first inflicted bloody injuries on Mrs.
Edwards in the kitchen before raping her on the bed — they
would "have expected to find some blood evidence on that
bed." J.A. 2014 (testimony of Starling); see also id. at 2136-
37 (Morrison’s testimony that "[a]ssuming that . . . the assault
. . . originated in the kitchen and the victim is bleeding at that
point, which all evidence indicates that, if an assault took
place on the bed, you would expect to find bloodstains there
as well"); id. at 2927 (Scalise’s testimony that, "[i]f the
assault had occurred on the bed," he "of course" would have
expected to find blood there).17 Starling also identified another
17
Dr. Jonathan Arden provided further testimony undermining the
State’s theory that Elmore had raped Mrs. Edwards on the bed. According
ELMORE v. OZMINT 51
incongruity between the evidence and the State’s theory of the
case. Asked "[i]f the victim had reached out and grabbed fifty
hairs of the assailant, yanked those hairs out physically by
force, would you expect to find some evidence of those hairs
under the fingernails or on the hands of the victim," Starling
responded that "[y]es, I would." Id. at 2019. According to the
SLED investigation report, however, "the only hairs that were
found on the hands of the victim was head hair from the vic-
tim herself." Id. at 2020.
Like Elmore’s expert witnesses, the SLED agent who alleg-
edly discovered the pubic hairs — Ira Byrd Parnell, Jr. —
deemed the large number of hairs found on the bed (a total of
forty-nine) to be "a highly unusual circumstance" and "a
vastly greater number of hairs than is usually present at most
crime scenes." J.A. 2745 (testimony of Parnell); see also id.
at 2014-15 (Starling’s testimony that "[y]ou don’t find fifty
hairs on a bed, or at least I have never found fifty. I have
never heard of anyone who’s found fifty, and I consider it
most unlikely that you would find fifty hairs, even if you’re
combining the hairs of a victim and a perpetrator"); id. at
to Dr. Arden, the autopsy evidence indicated "that no sexual assault was
perpetrated upon [Mrs. Edwards’s] live body." J.A. 2220-21. As Dr.
Arden explained, the only evidence of sexual assault were two abrasions
found in Mrs. Edwards’s vagina; there was no indication, for example, of
any semen in the body. See id. 2218-19. Dr. Arden reviewed a photograph
of the larger abrasion and found it to be not only "a postmortem injury,"
but also "very consistent with the bottle tongs." Id. at 2219 (explaining
that, although he could not "say with certainty that the bottle tongs caused
[the abrasion]," it was "entirely consistent with and suggestive of bottle
tongs, especially given the other injuries on the body which are also con-
sistent with that instrument"). There was no clear photograph of the smal-
ler abrasion, but other relevant autopsy findings were consistent with Dr.
Arden’s opinion that there was no sexual assault on Mrs. Edwards while
she was still alive. See id. at 2220-21. In her testimony, by contrast, Dr.
Sandra Conradi reiterated her conclusion that the abrasions were antemor-
tem injuries that "[c]ould have been caused by an erect penis," though she
acknowledged that "the tongs may have been used." Id. at 2672.
52 ELMORE v. OZMINT
2926 (Scalise’s testimony that "I have investigated many,
many homicides, but I have never heard of 45 to 50 hairs
being recovered particularly in one location, no, absolutely
not"); id. at 2088 (testimony of Skip Palenik, a self-employed
analytical microscopist with a laboratory in Illinois, "that the
finding of this many hairs was quite unusual, in my experi-
ence. In fact, I [have] never encountered a situation like that,
with that many pulled hairs").
Parnell nevertheless insisted that the hairs were in fact
recovered from Mrs. Edwards’s bed. He could not recall pre-
cisely when in the crime scene investigation that he first spot-
ted the hairs, but surmised that it was "[p]robably later on
during the investigation." J.A. 1469. Parnell elaborated that
"[i]t’s also possible too that the sheet being in the crumpled
condition, they had that particular view of the surface of the
bed somewhat obscured. I mean, I could see the bed, I could
see the sheet, but without getting in the proper position, it’s
possible that I didn’t see the hairs interspersed among the cov-
ers on the top without closer examination." Id. Parnell could
not recall whether further photographs were taken in the bed-
room after he found the hairs, but he acknowledged that it was
"very possible" that "most of the photographs had [already]
been taken," given that, "probably, this examination of the
surface of the bed would have been later in the investigation,"
with analysis of "the area around Ms. Edwards’s body" taking
precedence. Id. at 1470.
With regard to his failure to take a single photograph of the
hairs on the bed, Parnell explained on direct examination by
the State that "it was an oversight on my part." J.A. 2740. The
nonexistent photograph was, unsurprisingly, the subject of
cross-examination by Elmore’s counsel:
Q: Now, when you saw this indentation and the
hair, did it occur that maybe something had
happened on that bed related to the crime
scene?
ELMORE v. OZMINT 53
A: Yes, sir, that was my thinking at the time.
Q: And that would be a fairly significant thing,
would it not?
A: Yes, sir.
Q: And can you think of any reason why you
wouldn’t have photographed that indentation?
A: I’ve thought about it many times, and the only
thin[g] I can think is, as I said, I shot picture[s]
of everywhere coming in and to the side and
everywhere else. I simply just did not get one
of the top of the bed.
Q: Wouldn’t it be fair to say that every other piece
of evidence that was collected from that crime
scene was photographed?
A: That’s correct.
Q: It was the only thing that wasn’t photographed?
A: Yes, sir.
Q: And there were even photographs taken in other
rooms where there was no evidence of a strug-
gle at all?
A: That’s correct.
Q: Photographs of the bed in the other room?
A: Yes, sir.
Q: There was no struggle in there?
54 ELMORE v. OZMINT
A: whatsoever that I could tell.
Id. at 2747-48.
According to Parnell, he pointed out the hairs to his SLED
colleague, Frank Dan DeFreese; Parnell could not recall
whether he shared his discovery with any of the other police
officers on the scene, and no other officer is on record as hav-
ing seen the hairs. See J.A. 2740 (testimony of Parnell); see
also id. at 2766 (DeFreese’s testimony that "I saw [Parnell]
recover at least some of [the hairs]. I may not have been in
the bedroom the entire time he was removing the hairs, but I
saw the hairs present there"). Asked on direct examination
"[w]hy did you not [seize the bedcovers and sheets], if you
know," Parnell responded:
After recovering all the hairs that were on the top
sheet or visible on the top sheet, we further inspected
the bedding. There were no more hairs present on the
top cover at all. At that point we visually examined
the sheet and bedding. There were no obvious blood
or other stains present, so at that time we apparently
made the decision not to recover these since there
was apparently nothing of evidentiary value to them.
Id. at 2744. That testimony prompted the following line of
questioning from Elmore’s counsel:
Q: Is it conceivable that a microscopic or chemical
examination might have revealed something on
the sheets that you didn’t see?
A: I saw nothing else that could have been exam-
ined.
Q: And you felt comfortable making that decision
on your own at the crime scene?
ELMORE v. OZMINT 55
A: Sure did.
Q: And was it your practice at the time, when you
saw something like this, to just leave it at the
crime scene and not take it in?
A: If I saw nothing of evidential value on it to col-
lect, then I would leave it.
Q: Even if you thought that there had been a sexual
assault that occurred on top of these sheets and
even if you thought that there was this hair that
had some value, you still wouldn’t collect the
sheets?
A: I saw the hair. I got the hair. I got all the hairs
that were on it.
Q: I’m asking you about the sheets?
A: I understand. We examined the sheets visually.
. . . It’s very possible we might have examined
it under the ultraviolet light at the crime scene.
At any rate, we determined at that time, Lieu-
tenant DeFreese and myself, there was nothing
further of evidential value to be gained from
these covers, so we left them there.
Id. at 2757-58; see also id. at 2766 (testimony of DeFreese,
when asked "[w]ould you have recommended, based on what
you saw at that crime scene, that that sheet be carried back to
SLED [headquarters] for further analysis," that "[i]n 1982 I
may not have recommended it").
Once the hairs were removed from the bed, according to
Parnell’s account, they were placed in a plastic zip-lock bag
and delivered to Earl Wells at SLED headquarters for analy-
sis. See J.A. 2748-49. On cross-examination of Parnell,
56 ELMORE v. OZMINT
Elmore’s counsel pointed out that the hairs were packaged
differently than other evidence — that is, Parnell wrote
directly on the plastic bag containing the hair, while other
items of evidence were consistently affixed with distinctive
SLED labels initialed by the agents. See id. at 2753 (noting,
after drawing Parnell’s attention to various items, that "they
all have a SLED label on them initialed by either you or Mr.
DeFreese, or more often than not it’s initialed by both of
you"). Parnell testified in that regard as follows:
Q: But you can’t recall why it was that this one
particular exhibit, the zip-lock bag of hair,
didn’t have one of those labels on it?
A: Are you talking about the physical label itself?
Q: Yes. It didn’t have a label like the other exhib-
its. It just had some handwriting on the outside
of a plastic bag?
A: It was something I could write on, as opposed
to writing on something else that would possi-
bly mess up a fingerprint or whatever might
have been on it.
Q: Well, all these exhibits were in plastic bags, so
they all could have been written on, but the oth-
ers see[m] to be labeled. . . . .
***
So is there any particular reason why this
exhibit wasn’t treated the same way, that you
can recall?
A: None that I recall. I recovered it and wrote
everything else on it and initialed it myself.
ELMORE v. OZMINT 57
Id. at 2754-55.18
In his PCR testimony, SLED hair analyst Wells recalled
that the hair "was presented to me in a clear bag, a plastic
baggie container." J.A. 2799-2800. When asked whether the
bag "had any of this writing [Parnell’s initials] on it when it
came to you," Wells responded that, "[w]hen it was first sub-
mitted to me, it would not have had any writing on it. It would
have been in a clear bag, to my knowledge." Id. at 2800.
Wells also acknowledged that, although he had testified at the
1984 trial that forty-five of the hairs allegedly recovered from
Mrs. Edwards’s bed were Negroid pubic hairs consistent with
Elmore, he had actually mounted only "a representative sam-
ple" of those hairs on slides for microscopic comparison with
Elmore’s known hairs. Id. at 2789. Wells could not remember
how many of the forty-five hairs were mounted on slides or
how many slides were used; he estimated that "[t]here could
have been two, three, four, five [slides]," each mounted with
"multiple hairs [or] single hairs." Id. at 2801. Wells insisted
that those "slides existed at one time," and that he had turned
them over to the court for Elmore’s 1982 trial, but neither the
slides nor any written record of them could be located during
the PCR proceedings. See id. at 2789, 2801.
d.
With respect to the blood evidence, Elmore presented not
only expert witnesses, but also his former girlfriend, Mary
Alice Dunlap (now Harris). See J.A. 1896. During the state
PCR proceedings, Dunlap was asked — for the first time on
the record — whether she had noticed blood on Elmore’s
18
Elmore’s appellate brief mentions a second item of evidence, in addi-
tion to the hairs allegedly found on Mrs. Edwards’s bed, packaged differ-
ently than other evidence: "a piece of bloody carpet." Br. of Appellant 9
(citing J.A. 2755). Notably, however, while the cited portion of Parnell’s
testimony includes discussion of "bloody carpet," it does not include any
reference to the carpet being uniquely packaged. See J.A. 2755.
58 ELMORE v. OZMINT
button-front shirt when he came to her apartment after alleg-
edly murdering Mrs. Edwards on the night of Saturday, Janu-
ary 16, 1982. As Dunlap described the scene, she and Elmore
were inside her apartment, with the lights on, and "[h]e was
like maybe three feet[ ] away from me. I saw him real good."
Id. at 1897. Elmore "was wearing a white shirt that night,"
and Dunlap "didn’t notice anything on his shirt." Id. at 1898.
When asked if she was confident that she would have noticed
blood on the shirt, Dunlap responded, "Yes," in that Elmore
"was only three feet away from me at all times," and she cer-
tainly would have seen "red blood" on "a white shirt." Id.
Dunlap also recalled, consistent with her 1984 trial testimony,
that Elmore had "started unbuttoning his shirt and then he just
ripped it off," after which Dunlap "threw [the shirt] away." Id.
at 1903. Dunlap explained why she did so (something she had
not been asked during the trial): "I didn’t want his clothes in
my apartment." Id.19
Elmore’s forensic experts agreed that the lack of visible
blood on the shirt was significant, especially given other evi-
dence that Mrs. Edwards’s murderer carried her body to the
closet. Serology specialist Rodger Morrison described crime
scene photographs taken in an area of the bedroom near the
closet showing a "large puddle or pool of blood" on the floor
and bloodstains on the adjacent wall, as well as photographs
of Mrs. Edwards’s body reflecting that her clothing and hair
were "saturated with blood." J.A. 2133-34. According to Mor-
rison, it was "obvious from these photographs" that Mrs.
Edwards had "void[ed a] volume of blood" while positioned
against the wall on the bedroom floor, yet there was "no trail"
between the pool of blood and the closet, indicating that she
was subsequently "picked up and placed in the closet." Id. at
2134; see also id. at 1958-59 (similar testimony of Hayward
Starling).
19
Dunlap was not asked during the state PCR proceedings whether she
saw blood on Elmore’s other clothing, including his undershirt, coat,
pants, or shoes. She did not otherwise testify to noticing blood anywhere
on Elmore.
ELMORE v. OZMINT 59
Explaining the significance of the blood evidence, Morri-
son testified that — because Mrs. Edwards (at approximately
130 pounds) and Elmore (about 145 pounds) were "nearly
equal in size in terms of weight" — Elmore would have been
required to cradle Mrs. Edwards’s "thoroughly blood soaked
and slippery" body against his own in order to carry it to the
closet. J.A. 2135. "[I]n so doing," Morrison explained, Elmore
would have gotten "blood all over [him]" from Mrs.
Edwards’s body, "if [he had not] already gotten blood all over
[him] from [causing her] injuries." Id.; see also id. at 1961
(testimony of Starling acknowledging that it was possible, but
improbable, that Elmore could have carried the bloody body
to the closet without getting any blood on his white shirt and
without picking up more blood than that found on his pants).
In its cross-examinations of Starling and Morrison, the State
suggested a reason for the lack of more blood on Elmore’s
clothing: that the pants were pulled down or off at the time
Elmore brutalized Mrs. Edwards and carried her to the closet,
and that he was not wearing the white shirt at the crime scene.
See, e.g., id. at 2000 (seeking for Starling to agree that, "as-
sum[ing] based on the facts of this case that pubic hair was
pulled[, c]an we not also assume that the individual from
whom the hair [was] pulled possibly did not have his pants
on"); id. at 2154-55 (eliciting from Morrison that, if Elmore
was the murderer, the lack of blood on his shirt may have
indicated that "he didn’t have the shirt on at the time of the
bloody assault").
In any event, Elmore’s experts identified other aspects of
the blood evidence casting doubt on the State’s theory of the
case. For example, Morrison testified that — if it were
assumed that the Type A blood found on Elmore’s pants and
left shoe belonged to Mrs. Edwards and had been transferred
to Elmore during the crimes — it should also be assumed that
the Type B blood on Elmore’s coat and pants was his own
blood and had "been placed there at the same time." J.A.
2139. Indeed, Morrison observed that it was "a very common
occurrence" for the perpetrator of a violent assault to bleed at
60 ELMORE v. OZMINT
the crime scene, "particularly in situations [like Mrs.
Edwards’s murder] where you have multiple stab wounds."
Id. Notably, however, no Type B blood was found in the
Edwards home. See id. at 2140.
Additionally, there were no traces of blood of any type in
the car that Elmore was driving on the night the crimes alleg-
edly occurred. Vincent Scalise testified that, if Elmore was
the perpetrator and thus had left the bloody footprints found
at the scene, Scalise "would have definitely expected to find
some traces of blood" in Elmore’s car. J.A. 2922-23.20 For his
part, Morrison noted that the small amount of blood on
Elmore’s clothing was likely insufficient to result in a
clothing-to-car transfer of blood. See id. at 2158. Of course,
Morrison was also of the opinion that, if Elmore had perpe-
trated the crimes against Mrs. Edwards, he would have been
covered in blood. In those circumstances, Morrison explained,
"there would be quite a bit of blood on [Elmore] that could be
transferred to the automobile." Id.
Written records reflect that blood evidence recovered from
the crime scene was delivered to the SLED laboratory on Jan-
uary 19, 1982, the day after Mrs. Edwards’s body was found.
See J.A. 1780. Elmore’s shoes — which he had been wearing
at the time of his arrest on January 20, 1982, and which had
been the subject of questioning that morning by SLED’s
Thomas W. Henderson, Jr. — were among additional evi-
dence received in the laboratory later that day. See id. at 1781.
Also on January 20, 1982, the laboratory separately received
Elmore’s coat and pants from Gary Vanlerberghe of the
Greenwood City Police Department, whose officers had
20
With regard to the bloody footprints, Scalise further testified that nei-
ther of those prints was identifiable. See J.A. 2915 (footprint in carport);
id. at 2921 (footprint in carpeted dining room); cf. supra note 10 (relaying
defense lawyer John F. Beasley’s suggestion in closing argument that
footprints were identifiable and, thus, lack of match to Elmore was signifi-
cant).
ELMORE v. OZMINT 61
seized those items during that day’s search of the home of
Elmore’s mother. See id. at 1785, 2615. Finally, on January
22, 1982, Henderson submitted the vacuum bag samples col-
lected from Elmore’s car. See id. at 1787.
The SLED laboratory record of Elmore’s coat and pants
indicates that the blood analysis of those items was completed
on February 19, 1982, by serologist John C. Barron. See J.A.
1785-86. That record also contains an ambiguous notation
that, on February 3, 1982, there had been a "return[ ]" of the
coat and pants between Henderson and another SLED agent,
Patsy Habben, who worked in the laboratory. Id. at 1786.
Elmore’s PCR counsel interpreted the notation to mean that
Henderson had removed the coat and pants from the labora-
tory sometime prior to February 3, 1982, exposing those items
to tampering; Henderson then returned the coat and pants to
the laboratory on February 3, two weeks prior to Barron’s
blood analysis. See id. at 2629. Barron testified, however, that
he "would interpret [the notation] as saying Agent Patsy Hab-
ben . . . returned [the coat and pants] to Tom Henderson on
that date." Id. Additionally, Barron explained that, before the
coat and pants were handed over to Henderson, "[t]he stains
would have been removed" from them for the later blood
analysis. Id. at 2631. Barron qualified his testimony as fol-
lows: "I can interpret what I believe [the notation] means, but
either Mr. Henderson or Ms. Habben would have to say
exactly what it means." Id. at 2633. It does not appear from
the record, however, that Henderson or Habben gave chain-
of-custody evidence about the coat and pants.
e.
Elmore’s expert witnesses also criticized numerous aspects
of the handling of fingerprint evidence by the SLED team,
such as the investigators’ failure to compare prints found in
the Edwards home with the known prints of anyone other than
Mrs. Edwards and Elmore. In seeking relief from his convic-
tions, Elmore has principally relied on the existence of the
62 ELMORE v. OZMINT
identifiable print lifted from the blood-smeared toilet in Mrs.
Edwards’s en suite bathroom — a print that has been matched
to neither Mrs. Edwards nor Elmore. The print, consisting of
two fingertips, was found on the underside of the toilet seat
and designated "E-5" on the written report of SLED finger-
print analyst Frank Dan DeFreese.
According to his report, DeFreese lifted eight prints from
the Edwards home. See J.A. 1772; see also supra note 8
(relaying DeFreese’s 1982 trial testimony that few finger-
prints were found because "‘Mrs. Edwards, or whoever kept
her house, was a very meticulous housekeeper’" (quoting J.A.
83)). DeFreese’s report indicates that only three of the eight
prints were identifiable, i.e., Elmore’s thumbprint on the exte-
rior frame of the back door, Mrs. Edwards’s thumbprint on
the swinging door between the kitchen and dining room, and
Mrs. Edwards’s palm print on top of the toilet tank in her en
suite bathroom. See J.A. 1772 (reflecting that five prints,
including E-5, "were found to contain insufficient ridge detail
for comparison"). DeFreese required a minimum of ten points
of comparison to identify a print. See id. at 2773.
During Elmore’s PCR proceedings, however, Hayward
Starling testified that one of the two E-5 fingertips was identi-
fiable, with an estimated fifteen points of comparison. See
J.A. 1977 (explaining that there were "probably fifteen"
points of comparison, but "I did not count"). Starling
excluded Elmore as the source of the E-5 print, but was not
able to compare it to Mrs. Edwards because he did not have
access to prints of her fingertips. See id. at 1980 (observing
that Mrs. Edwards’s postmortem "prints were taken obviously
under difficult circumstances and did not include the tips of
the fingers, which the [E-5] print represented"). Vincent Sca-
lise indicated that both of the E-5 fingertips were identifiable,
but he was not asked to duplicate Starling’s work comparing
the E-5 print to Elmore and obviously could not compare the
print to Mrs. Edwards. See id. at 2904, 2966.
ELMORE v. OZMINT 63
When shown the E-5 print during the state PCR court’s evi-
dentiary hearing and asked by Elmore’s counsel whether he
saw "ten points of possible comparison," SLED’s DeFreese
responded:
Only by using the greatest amount of imagination. I
don’t see in either one of these [fingertips] ten really
good points. If you wanted to imagine some things
being there, I suppose you could get ten.
J.A. 2777. Immediately thereafter, the following exchange
ensued between DeFreese and the lawyer for Elmore:
Q: Now, with respect to . . . the prints taken at the
toilet that we just looked at, did you perform
any comparison of those prints with the prints
of Mr. Elmore?
A: Yes, sir.
Q: How do you know that?
A: Because a set of known fingerprint[s] are sub-
mitted for comparison. That set of known fin-
gerprints is compared with all of the evidence
specimens . . . submitted in a particular case.
Q: Well, if you had compared these prints with Mr.
Elmore’s prints and found that they matched,
would you have recorded that in your report?
A: I would have.
Q: Well, then if you compared these prints and
found that they didn’t match, why wasn’t that
recorded in your report?
A: Either it was improperly recorded by me or
someone else, or . . . I could not absolutely
64 ELMORE v. OZMINT
eliminate the possibility that Mr. Elmore con-
tributed to it.
Q: I would ask the same question with respect to
the victim. Would you have examined these
prints to determine whether or not they matched
the known prints of the victim?
A: I would have.
Q: And if you had found they matched the known
prints of the victim, would you have recorded
that in your report?
A: I would have.
Q: And again, the same question. If you didn’t find
that they matched the known prints of the vic-
tim, was that something that you would have
considered significant?
A: Yes, sir, it would be significant.
Q: And following proper procedure, then, that
should have been recorded in your report as
well?
A: Yes, sir, it should have been. If that were the
case, it should have been.
Id. at 2777-79. On redirect examination, the State elicited the
following testimony from DeFreese:
Q: Mr. DeFreese, you didn’t find that these prints
matched?
A: I’m sorry, sir?
ELMORE v. OZMINT 65
Q: You didn’t find that the prints matched the vic-
tim or the defendant that you have been discuss-
ing, is that correct?
A: I’m not sure I follow your question. I didn’t
find —
Q: These particular exhibits that you have not
identified previously as being favorably com-
pared to the defendant or the victim?
A: Right, I did not find that they matched the
defendant or the victim, no sir.
Q: Okay. And would you state that finding
matches with a defendant — are you conserva-
tive in making those determinations?
A: I am, sir.
Q: All right, sir. And that there are sometimes
matches that other folks can make to a particu-
lar suspect in a criminal case that you may not
be willing to make, is that correct?
A: That’s true.
Id. at 2779-80. Elmore’s lawyer then resumed his cross-
examination of DeFreese:
Q: I’m not sure I understood your last answer. Is
there any doubt in your mind at all that these
are not Mr. Elmore’s prints?
A: If I had found Mr. Elmore’s prints there, I
would have said so.
Id. at 2780-81. Counsel for Elmore interpreted DeFreese’s
testimony to be that, despite his claim that the E-5 print was
66 ELMORE v. OZMINT
unidentifiable, he compared E-5 to Mrs. Edwards and Elmore,
excluded both of them as the print’s source, and improperly
failed to report those findings (though he most certainly
would have reported any match, particularly to Elmore).
In addition to seeking relief premised on the E-5 print,
Elmore also developed evidence concerning three prints lifted
from the exterior frame of the back door into the Edwards
home: the thumbprint matched to Elmore ("E-2"), plus two
prints that appeared to have been made by palms ("E-1" and
"E-3"). Although DeFreese had reported the E-1 and E-3 palm
prints to be unidentifiable in 1982, he agreed with the assess-
ments of Starling and Scalise during the PCR proceedings that
at least one of those prints contained more than ten points of
comparison. See J.A. 1974 (Starling’s testimony that both
prints were identifiable and that neither matched Elmore); id.
at 2895-96 (Scalise’s testimony that E-1 and E-3 contained
"[m]ore than sufficient" ridge detail and were "very clear
prints"); id. at 2774-75 (DeFreese’s testimony that one of the
prints was identifiable). DeFreese acknowledged that "evi-
dently I was incorrect" in previously reporting that both E-1
and E-3 were unidentifiable. Id. at 2775.
As for the E-2 thumbprint, Starling and Scalise confirmed
that the print was made by Elmore. Nonetheless, Scalise
rejected the notion — advanced by DeFreese and four Green-
wood city police officers during Elmore’s 1984 trial — that
the "freshness" of the print could be ascertained. See J.A.
2880 (Scalise’s testimony that "it is well documented there is
absolutely no way to determine the age of the latent finger-
print and when it was placed on the given subject"). More-
over, addressing the 1984 testimony of the four city officers
that the print was visible to the naked eye, Scalise observed
that the print’s visibility indicated "that it was a permanent
print" and, thus, "could have been there for an indefinite
period of time." Id. at 2889.
Scalise also revealed information about Elmore’s thumb-
print not shared with the 1984 jury: The print was upside-
ELMORE v. OZMINT 67
down and wrapped around the door frame. See J.A. 2885-86,
2960-62. As such, Scalise testified, the print was consistent
with someone washing windows and the door. See id. at 2887
(explaining that a turned hand was "consistent with someone
who was supporting their weight with that hand" while per-
forming chores); id. at 2962 (observing that, while working
around the door, Elmore’s "finger would have been on that
particular spot for an extended period of time, and the pres-
sure may have brought it around" the frame). By contrast, the
print’s position was "not really consistent with someone walk-
ing up to the door and placing a lone solitary print there." Id.
at 2886. Scalise elaborated that "[i]t would be sort of difficult
to turn the hand around to walk through the doorway. It
wouldn’t be the normal way that you would enter the door."
Id. at 2887. Similarly, with respect to the print being wrapped
around the door frame, "[i]t would not be consistent with just
the touching [of the door frame. I]f the area was just touched,
I see no reason that the finger would wrap around." Id. at
2962.
2.
During the state PCR court’s evidentiary hearing, James
Gilliam recanted his prior testimony — given at Elmore’s
1982, 1984, and 1987 trials — that Elmore had approached
him in a common area of the Greenwood jail in early April
1982 and spontaneously confessed to murdering Mrs.
Edwards. Gilliam made his recantation after the state PCR
court advised him of the South Carolina statute criminalizing
the act of perjury. See J.A. 1904-05. According to Gilliam’s
recantation, he had falsely testified to the confession in
response to a proposition from jail administrator Arlie Capps
— that proposition being to the effect of, "‘You help me out
on the Elmore thing, we’ll look after you.’" Id. at 1910. Gil-
liam understood Capps to be asking for "[i]nformation," i.e.,
"to get [Elmore] to talk." Id. at 1907, 1911. On direct exami-
nation by Elmore’s PCR counsel, Gilliam averred as follows:
68 ELMORE v. OZMINT
Q: Did Mr. Elmore tell you anything?
A: No. Mr. Elmore — only thing Mr. Elmore told
me was he didn’t do it.
Q: Did Mr. Elmore say, "If you have sex with a
woman and wash it off, can they tell"?
A: No, he didn’t.
Q: Did Mr. Elmore say, "They won’t find any fin-
gerprints, because I wiped them down"?
A: No, he didn’t.
Q: Did Mr. Elmore say, "I didn’t mean to kill her,
but she started screaming, so I had to"?
A: No, he didn’t.
Q: Did you testify in 1982 and 1984 and 1987 that
he did?
A: Yes, I did.
Q: But today you’re telling this court that’s not
true?
A: I’m telling this court the whole truth.
Q: In fact, the only thing that Mr. Elmore ever told
you was what?
A: That he didn’t do it.
Id. at 1908-09. Gilliam explained that his trial testimony
"started worrying [him] in 1988," so he told a pastor (a Pastor
Spearman) and then a trusted local lawyer (Rauch Wise) that
ELMORE v. OZMINT 69
he had lied about Elmore’s confession. Id. at 1909. Gilliam
also confided in his wife. See id. at 1920.
Gilliam’s recantation was corroborated by lawyer Wise,
who had represented Gilliam in 1981 on a state charge of
receiving stolen goods. Wise also had advised one of
Elmore’s court-appointed lawyers, Billy Garrett, during the
February 1987 sentencing-phase-only trial "about some trial
techniques and so forth." J.A. 2178-79 (explaining that Gar-
rett "had never tried a death penalty case, and I had tried two
at that time"). Wise had unsuccessfully sought to locate Gil-
liam on Garrett’s behalf for an interview prior to Elmore’s
1987 trial. See id. at 2181. According to Wise, in May 1987
(rather than 1988), following Elmore’s trial, Gilliam told
Wise "that he had lied in the Elmore trial" and "felt it was
time to come clean." Id. at 2173, 2174. Wise shared that infor-
mation with Elmore’s state appeals lawyer, David Bruck, and
also was involved in taking a June 1987 videotaped statement
from Gilliam again admitting "that he had lied about what
Elmore had said to him and he did it to get himself out of
some trouble." Id. at 2176.21
On cross-examination by the State during the PCR proceed-
ings, Gilliam testified that he had lied "to try to benefit
[him]self." J.A. 1911. Gilliam elaborated that, at the time of
each of Elmore’s three trials, he was either incarcerated or
residing in Greenwood, and "you’re dealing with pretty pow-
erful people in Greenwood County. They can help you out
with things." Id.; see also id. at 1920 (explaining on redirect
examination that he did not come forward after the first trial
because he "was still living in Greenwood County," and
"that’s a reason to be afraid"). Four other men who had been
incarcerated with Elmore in April 1982 testified that they also
had been approached by law enforcement officials and asked
21
As best as Bruck could later recall, Gilliam’s recantation was not
raised on direct appeal from the 1987 death sentence because it was an
issue better suited to a PCR application. See J.A. 3072I.
70 ELMORE v. OZMINT
for information on Elmore. Capps, however, firmly denied
that he ever communicated with Gilliam or any other jail
inmate "concerning developing information about" Elmore.
Id. at 2382.
3.
Dr. Jonathan Venn, a clinical psychologist employed by the
South Carolina Department of Juvenile Justice, testified at the
state PCR court’s evidentiary hearing with regard to his eval-
uation of Elmore for the purpose of "arriv[ing] at an opinion
. . . about his mental abilities for his defense." J.A. 2357. Dr.
Venn opined, inter alia, that Elmore is "an individual who
operates at a very low level of intelligence. He has a lot of dif-
ficulty solving problems, remembering, and figuring things
out." Id. at 2362.22 Dr. Venn also acknowledged that he had
been requested by Elmore’s PCR counsel to focus on the trial
testimony of SLED’s Thomas W. Henderson, Jr., recounting
Elmore’s statement on the day of his arrest to the effect of "‘If
I killed her, I don’t remember it.’" Id. at 2363-64. According
to Dr. Venn, because Elmore was "probably accustomed to
making excuses about his memory," and because "he’s not
good at using words to express himself," that statement "does
not imply anything about his guilt or innocence." Id. at 2364-
65.
Dr. Venn further opined that Elmore’s initial statements to
the police that he did not know Mrs. Edwards were "typical
of a person of Mr. Elmore’s memory problems." J.A. 2377.
Pressed by the State to address Elmore’s subsequent acknowl-
edgment that he did know Mrs. Edwards, Dr. Venn testified:
22
Notably, Dr. Venn disclaimed the notion that Elmore is mentally
retarded, but had not been requested to evaluate Elmore for mental retar-
dation. See J.A. 2362 (testimony of Dr. Venn that "Mr. Elmore is not men-
tally retarded, but he’s just a notch above being mentally retarded"). Of
course, the state PCR court has since recognized that Elmore is mentally
retarded and, thus, ineligible for execution.
ELMORE v. OZMINT 71
I believe the way the [trial] testimony reads is that
once it was explained to [Elmore] who [Mrs.
Edwards] was, that he did identify her. She was one
of perhaps a hundred clients of his, someone he had
not been working for very long, only in November
and December, and he has a lot of memory prob-
lems. He’s not good at remembering names.
Id. The State established, however, that Dr. Venn had never
before encountered such a circumstance in his regular work
with juveniles, which did not involve memory deficit evalua-
tions. Id. at 2368, 2377.
4.
Finally, the state PCR court received testimony from vari-
ous lawyers who had represented Elmore in his trials and
direct appeals — most significantly, Geddes D. Anderson, the
part-time Greenwood County Public Defender who had led
the defense in the 1982 and 1984 trials (and also represented
Elmore in the sentencing-phase-only trial in 1987). In describ-
ing his preparation of the case, Anderson testified:
Unlike so many other defendants, the hundreds that
I have represented, Edward Lee Elmore — it’s just
so peculiar. He is so courteous and polite and [at] the
same time reticent. He never — Edward Lee Elmore
never really gave to me a lot to work with. I just
can’t keep but telling you that. He’s not a stereotyp[-
ical] kind of defendant that you normally — that is
yelling and screaming, "I didn’t do it, I didn’t do it,
I didn’t do it, here’s what happened," and going
through all of the histrionics that so many defendants
will go through. This man was not like that, and it
was very difficult to represent him. He was not the
kind of person who would step forward and state his
position. . . . [T]hat’s one reason I never believed, to
be perfectly honest, never believed James Gilliam
72 ELMORE v. OZMINT
[that Elmore had approached Gilliam in the Green-
wood jail and spontaneously confessed to murdering
Mrs. Edwards]. [Elmore] wouldn’t say it to anybody,
even the lawyers, in terms of articulating what spe-
cifically happened that night . . . .
J.A. 2415. Anderson acknowledged that, rather than convinc-
ing him of Elmore’s innocence, Elmore’s quiet demeanor "led
[Anderson] to believe . . . that perhaps [Elmore] might have
been present [in the Edwards home at the time of Mrs.
Edwards’s murder]." Id. at 2415-16.
Anderson further intimated that he believed Elmore to be
guilty when questioned about whether Elmore’s race might
have been a factor in the prosecution:
A: . . . I never did perceive it, that they had singled
out Mr. Elmore. I think legitimately they
focused in on a suspect and had, in my judg-
ment, ample evidence at the time. I perceived
that.
***
Q: And at the penalty phase were you concerned
that again race might be a factor in the case
against Mr. Elmore?
A: I would probably answer that question simi-
larly, as I did in the guilt phase. . . . [H]ad the
evidence been against — in the guilt phase —
been against a white gentleman, same age and
same characteristics as Mr. Elmore, whatever, I
don’t think the jury would have held back
because he was white in the penalty phase. I
can’t conceive of that. This case, to me, my
own personal opinion, never had the character-
istics of racial rancor. It was just a situation in
ELMORE v. OZMINT 73
my mind, that some person, some perpetrator
saw an opportunity to break in and commit
homicide.
J.A. 2480-81.
Consistent with his acceptance of the "ample evidence"
against Elmore of a plain "break in and . . . homicide," it did
not occur to Anderson that the perpetrator actually may have
been Mrs. Edwards’s neighbor, Greenwood County Council-
man Jimmy Holloway. On direct examination by the State,
Anderson testified:
Q: Did you know a Mr. Holloway?
A: I knew him. Being a resident of Greenwood, I
knew Jimmy Holloway. I knew that he lived
over in that area.
Q: Were you aware that Mr. Holloway was the
individual that discovered Mrs. Edwards’ body?
A: Yes.
Q: And were you aware of the circumstances con-
cerning his discovery that morning?
A: You know, I had forgotten that he had gone
over there and come back. I had forgotten that,
but I knew he was the first person on the scene,
yes.
Q: All right, sir. Did you consider investigating
Mr. Holloway as a possible suspect?
A: Never had it in my mind.
Q: Why would that be?
74 ELMORE v. OZMINT
A: Well, it’s just human nature on my part, know-
ing the man that — that never entered my mind.
Q: Did you have any indication that he was some-
how involved in this?
A: It never entered my mind. To be perfectly hon-
est, I think it’s ludicrous to think he was
involved in any way. Just knowing him.
Q: All right, sir. Did you speak with him other than
through his trial testimony?
A: Just — in fact, I never — to answer your ques-
tion, I never interviewed him about anything
about the case. I was confident in my own mind
that he had certainly no involvement whatso-
ever. I might have spoken to him in and around
the courthouse, but no formal interview or no
effort on my part to specifically direct an effort
to find out any information in terms of investi-
gating Mr. Holloway as a possible suspect. That
never entered my mind.
J.A. 2412-13.
Anderson barely contemplated that the crimes may have
occurred sometime other than the night of Saturday, January
16, 1982. See J.A. 2417 (Anderson’s testimony that "I think
basically in my approach to the case I more or less zeroed in
or condescended [sic], or ever what you want to say, that per-
haps [the murder] did occur during [the] time frame [alleged
by the State]"). Although Anderson knew that Elmore had
corroborated alibis for that Sunday and Monday, Anderson
said he focused his efforts — unsuccessfully — on establish-
ing an alibi for Saturday night, rather than developing evi-
dence that the crimes happened later. See id. at 2416-17. On
cross-examination, Anderson acknowledged listening to part
ELMORE v. OZMINT 75
of Dr. Jonathan Arden’s hearing testimony that Mrs. Edwards
almost certainly died no earlier than Sunday afternoon. See id.
at 2464. Anderson then admitted that, "[i]n retrospect, we
should have had an expert testify that perhaps [the murder]
could have occurred on Sunday afternoon" — a point that
Anderson recognized was "very" important to Elmore’s
defense. Id. at 2465. Instead of doing so, Anderson recalled,
his co-counsel merely "got [the State’s witness, Dr. Sandra
Conradi,] to admit that the time of the death could have varied
greatly." Id. at 2421.
Although he recognized that the Elmore case involved "a
who-done-it scenario," Anderson conducted no independent
analyses of the State’s forensic evidence. See J.A. 2417-18
("Q: Did you do any . . . independent investigation of any of
the forensic evidence, the fingerprints, the hair, match-up on
the hair?" "A: None."). Moreover, Anderson admitted that he
never thought to suspect irregularities in the chain of custody
of physical evidence, but he demonstrated no willingness to
second-guess that approach, as reflected in the following
exchange on direct examination by the State:
Q: . . . [D]uring the ’82 trial, you stipulated to the
chain of custody of the forensic evidence that
was introduced into evidence, including the fin-
gerprints, the hair that was recovered at Mrs.
Edwards’ home, the photographs generally, and
other matters which the SLED agents were tes-
tifying about. Why did you agree to the chain
of custody or stipulate to the chain of custody
at that first trial, if you recall?
A: It was not like a lot of cases where there are
going to be gaps in the transfer of evidence
from one police officer or one agency to
another agency and various sources might put
their hands on the evidence. In this case, SLED
was called in immediately. I don’t think but
76 ELMORE v. OZMINT
maybe one or two officers were in the home.
Maybe there were more, but as I understand it,
nothing particularly was disturbed, at least from
what they said. The SLED team arrived, it was
sealed off, and all the evidence gathered at the
scene was gathered by SLED personnel and
taken directly to Columbia, so there was no
transfer or exchange of evidence interagency or
from officer to officer.
Q: Did you inquire of the chain at any time, either
with the solicitor or with the agents who came
to the home?
A: I’m sure I inquired, but I think I probably just
stood by my opinion that I have respect for the
SLED team, and they’re the best we have in
South Carolina, and I assumed they were not
going to contaminate the evidence.
Id. at 2423-24. Anderson reiterated on cross-examination that,
"because of [his] feeling about SLED" — "that the SLED
team was the best in South Carolina and that they would not
contaminate the evidence" — he "chose not to make any
objection . . . about the chain of custody on any of [the] evi-
dence." Id. at 2480.
Anderson also expressed confidence that the prosecution
maintained an open file. See J.A. 2411-12. When asked on
cross-examination whether he "ever [got] a look at the State’s
exhibits prior to . . . the first day or so of the [1982] trial,"
Anderson recalled "examining the evidence," likely "a day or
two before the trial or something like that." Id. at 2466.
Anderson was certain that he received a two-page chart pre-
pared by SLED outlining all of the forensic evidence in the
case, but he conceded that he had been "remiss" in ascertain-
ing whether all of the evidence was actually available. Id. at
2467. Furthermore, Anderson requested to see only the evi-
ELMORE v. OZMINT 77
dence that the State intended to introduce at the 1982 trial. See
id. at 2468. Thereafter, during the 1984 trial, the State intro-
duced the same evidence offered at the 1982 trial, again with
the stipulation of defense counsel. See id. at 2479. When
asked whether it would "be fair to say that you didn’t do any-
thing more in looking at that forensic evidence at the [1984]
trial," Anderson responded, "Exactly." Id.
As an excuse for his failure to conduct any independent
analyses of the forensic evidence, Anderson repeatedly
emphasized the scarce state funding available for defense
experts. For example, Anderson recalled at one point in his
testimony that "I think we had a grand total of two thousand
dollars to spend on expert witnesses, and so it goes without
saying that those resources were limited." J.A. 2405. Accord-
ing to Anderson, any of the available funds that his defense
team sought were used to pay for a mental competency evalu-
ation of Elmore prior to the 1982 trial. See id. at 2456-57.
Having listened earlier in the state PCR court’s evidentiary
hearing to testimony of Elmore’s expert witnesses, Anderson
conceded that "certainly there are areas that I did not cover [at
trial], some of which obviously existed back in those days."
J.A. 2407. Nevertheless, Anderson asserted that "I certainly
aim toward being competent to cross-examine expert wit-
nesses. . . . I consider myself a lawyer of average intelligence,
and the bottom line simply is I did the best I could [for
Elmore] with the resources I had." Id. While defending his
own performance, Anderson also denigrated the integrity of
Elmore’s PCR witnesses, remarking that "I’m sure they are
fine experts, but those of us who are experienced in criminal
law know that experts can be paid and you can get the song
you want sung if you got the right quarter." Id. at 2441.
Elmore’s mother was the only person, other than Elmore
himself, who Anderson was certain he interviewed prior to the
1982 trial; he thought he also interviewed other witnesses,
perhaps including Elmore’s girlfriend, Mary Alice Dunlap.
78 ELMORE v. OZMINT
See J.A. 2458-60. According to Anderson, in preparing for the
second trial in 1984, the sole subject of any new investigation
was Elmore’s "adaptability to prison life." Id. at 2426. "[T]o
be perfectly candid," Anderson admitted, "I was probably
aiming toward the penalty phase," since at least one of the
1982 jurors apparently had "held out a lengthy period of time"
in voting for the death penalty. Id. at 2429. Additionally,
Anderson conceded that, based on the results of the first trial,
he believed Elmore was likely to be found guilty again. See
id. at 2478.
Anderson indicated on direct examination by the State that
much of his preparation for Elmore’s 1982 and 1984 trials
occurred during the ten-day period prior to each of those tri-
als. See J.A. 2440 ("[A]s the public defender, in the first two
trials, [I was] clear of any court appearances ten days prior to
the trial [under South Carolina law]. I’m thinking that I uti-
lized that."). Even for each of those ten-day periods, however,
Anderson could "not say[ ] that I spent every hour of every
day preparing for [Elmore’s] case. The record might reflect
that I may have made a court appearance [in another matter],
but I think I utilized that legal time allowance to my best abil-
ity." Id. at 2442. Anderson’s testimony prompted the follow-
ing exchange on cross-examination by counsel for Elmore:
Q: . . . [I]f I understand your testimony correctly,
in the short interval, two months, between Mr.
Elmore’s arrest and the [first] trial, the predomi-
nant amount of your preparation would have
been done within that ten-day period just prior
to the start of the trial?
A: Probably so.
Q: And that’s because you had too many other dis-
tractions you testified to during that earlier
time?
ELMORE v. OZMINT 79
A: I would say that, and I agree with that, but I
don’t want to — I want to make it clear that I
felt confident — now, in retrospect, maybe
some things were not done, but I felt that
[Elmore] got adequate representation from me.
Id. at 2455-56. Anderson estimated that, around the time of
his representation of Elmore, he carried a caseload of sixty to
eighty cases between his private practice and his role as the
part-time public defender. See id. at 2448. His public defender
duties consumed about 60% of his time but earned him only
about one-third of his total income. See id. at 2447. Anderson
admitted that he was a "heavy drinker" in the early 1980s, but
he insisted that he "was perfectly sober during the course of
each of [Elmore’s] trials." Id. at 2485, 2487.
Anderson’s court-appointed co-counsel for the 1982 and
1984 trials, John F. Beasley, testified during the state PCR
court’s evidentiary hearing that he could not recall Anderson
"drinking or being under the influence" during preparation for
the trials or the trials themselves. J.A. 2581. Beasley acknowl-
edged that he had little memory of the trials at all, remarking
that, "[a]s a matter of fact, I didn’t realize we tried it twice
until earlier this week when I found out." Id. at 2591. Beasley
observed that "I always tried to be prepared, and I’m sure I
was prepared as much as I could, but as to specifics of what
I might have done, I just don’t recall." Id. at 2592. Asked
whether he had communicated with Elmore, Beasley did "re-
member talking with him, because he’s one of the few that I
ever represented that did not admit doing it." Id. at 2593.
Beasley also recalled that, because Elmore had not confessed
to Anderson and Beasley, they did not believe Gilliam’s
account of Elmore’s spontaneous jailhouse confession. See id.
at 2582. In any event, Beasley expressed having "full confi-
dence in the law enforcement officers." Id. at 2581 (explain-
ing that "I knew them all. I had never had any occasion where
80 ELMORE v. OZMINT
any law official ever tried to pull anything over on me, and
I had no reason to suspect anything being wrong").23
Beasley was replaced on Elmore’s defense team for the
1987 sentencing-phase-only trial by Billy Garrett. Despite
Anderson’s continued assignment to the case, Garrett wanted
to argue that Elmore was entitled to a life sentence premised
on the ineffective assistance of counsel in the 1982 and 1984
trials, but understood South Carolina precedent to preclude
that theory. See J.A. 2495-98. Garrett was disturbed by
Anderson’s and Beasley’s apparent failure to attempt to locate
two witnesses who could corroborate Elmore’s alibi for the
night of Saturday, January 16, 1982 — specifically two store
employees who could have testified that they saw Elmore on
their store premises at the time he was allegedly murdering
Mrs. Edwards. See id. at 2496-97. According to Garrett, "[i]n
1987 I took steps to try to locate these alibi witnesses, and of
course by that time, unfortunately, the record was gone and
we didn’t find those people." Id. at 2497. Garrett also testified
that, although his proposed ineffective assistance theory was
initially "a real problem" between Anderson and him, Ander-
son came to understand "it was nothing personal" and they
"were able to work well together on the case." Id. at 2498.
Garrett said that he befriended Elmore and, unlike Ander-
son, easily communicated with him. See J.A. 2498-99, 2502.
Describing the development of the defense strategy for the
1987 trial, Garrett explained:
23
According to Elmore’s state appeals lawyer, David Bruck, during a
discussion with Beasley about the hair evidence in preparation of the
appeal from the 1982 or 1984 verdict, Beasley made a racist remark about
Elmore. See J.A. 3072D-E. Bruck testified that, "[a]s best [he could] recall
it," Beasley remarked, "‘If that don’t take the cake, a red headed nigger,’
and chuckled, laughing." Id. at 3072E. Bruck explained that he remem-
bered the remark because "it struck [him] as unusual that a lawyer would
refer to his own client by a racial epit[het]." Id. Beasley has denied making
the remark. See id. at 2596. The state PCR court rejected Elmore’s claim
that the alleged remark entitled him to relief from his convictions, see First
PCR Order 120-24, and Elmore has since abandoned that claim.
ELMORE v. OZMINT 81
It was my general reaction to the case — it had
already been tried twice. [Elmore] had been found
guilty and sentenced to death twice. It was my gen-
eral reaction that that crime, if the jury believed he
did it, was a very horrendous and horrible crime, and
they would probably sentence him to death. We had
to make a strategic decision to try to either go and
argue a full mitigation case where we’re arguing that
"ladies and gentlemen of the jury, you should really
feel sorry for him, he’s had a bad upbringing, a bad
situation at home with his girlfriend, he just snapped,
and this horrible thing happened." But we felt like if
we made that type of argument, that the result would
have been the same anyway. And with our client tell-
ing us that’s not the case, he basically said, "I didn’t
do this, I didn’t commit this crime," I didn’t feel real
comfortable going up in front of a jury even in the
sentencing phase and trying to mitigate something
that he told me he didn’t do. And I believed him.
That’s what he said, and, you know, I backed him up
all the way on it.
Id. at 2502-03. According to Garrett, Elmore’s innocence
defense was constrained by the 1987 trial court’s ruling —
which Garrett recognized to be inviolable under South Caro-
lina law — "that any evidence that came in in the guilt phase
would come in in the sentencing phase." Id. at 2506. Knowing
that it would be admitted, Garrett studied that evidence and
interviewed the investigating officers. See id. at 2507-08. His
plan was to show the jury that the evidence "didn’t necessar-
ily mean that it was Edward that committed this crime. There
were doubts, and they needed to give him the benefit of those
doubts." Id. at 2510.
In the course of his investigation, Garrett became particu-
larly concerned "about the hair on the bed." J.A. 2509. He
explained:
82 ELMORE v. OZMINT
[I]t appeared that [the SLED team] had done a good
job of taking photographs of everything else on the
scene, including the bed [in a second bedroom] that
had not been utilized in the [rape], if any, and they
had pictures of the top of that bed, yet on the bed
that the act allegedly occurred . . . they didn’t have
the first picture, and that seemed to me to be incon-
sistent with everything else. They had pictures of
minute pieces of dental work in the record, and it
just concerned me that I couldn’t find a picture of the
bed.
Id. at 2509. The circumstances led to "speculation[ ] that there
really wasn’t any hair from Edward on the bed." Id. at 2512.
Garrett elaborated:
We didn’t know the State would do something like
that. Our feeling was that it wouldn’t, but . . . with
all these hairs being found on the bed, no pictures of
the hair being found on the bed, I asked the officers
themselves personally, off the record and on the
record, "Did you find these hairs on the bed," and
they said yes, they did. Short of calling them a liar
in front of the jury or something like that, it was not
something that we really could . . . contradict at trial.
Id. at 2512-13. Garrett’s trial strategy boiled down to being
"very critical of [the] investigation [for] not tak[ing] a picture
of the hair on the bed" for presentation to the defense and the
jury. Id. at 2557. According to Garrett, the lack of a photo-
graph of the hairs on the bed "really concerned me, and it’s
always concerned me, and until the day I die that will concern
me." Id.
Garrett also questioned James T. Coursey of the Green-
wood City Police Department, who had collected pubic hairs
from Elmore at the time of his January 20, 1982 arrest, about
why Coursey had not photographed Elmore’s groin area. See
ELMORE v. OZMINT 83
J.A. 1160-62 (Garrett’s 1987 recross-examination of Cour-
sey). When Garrett asked "wouldn’t it have been better to take
a picture of the area . . . to determine whether or not there was
any injury, any type of bruising in this area before pulling
pubic hairs," Coursey responded that he did not "recall seeing
any bruise" nor "any injuries," and thus had no reason to take
a photograph. Id. at 1161-62.
With respect to other forensic evidence, Garrett sought to
demonstrate during the 1987 trial, inter alia, that there was an
insignificant amount of blood on Elmore’s clothing. See J.A.
2518 (recalling that the SLED agents "cut out large swatches
on the coat to make it look like this thing was just gouged in
blood, and on examination I got them to admit that although
they cut a big spot out, the spot of blood may have been this
small, so to let the jury know that . . . it looked more sensa-
tional than it was"). Garrett also underscored that Elmore’s
thumbprint on the exterior frame of the back door into the
Edwards home was consistent with the fact that "Edward had
worked there." Id. at 2520. Garrett did not think to challenge
other aspects of the State’s theory of the case, including the
assumption that Mrs. Edwards had died on the night of Satur-
day, January 16, 1982. See id. at 2522.
On cross-examination by Elmore’s PCR counsel, Garrett
testified that he was "three years out of law school" when he
represented Elmore, with "two or three General Sessions tri-
als" under his belt, and little or no experience with forensic
evidence. J.A. 2541-42. Additionally, Garrett acknowledged
that, because he could not contest the admissibility of the evi-
dence, "it would have been a waste of time" to investigate the
chain of custody. Id. at 2543. Garrett also recognized the
weaknesses of the innocence theory that he had employed on
Elmore’s behalf:
Q: . . . [I]sn’t it true that in the context of this third
trial, where guilt had already been established at
84 ELMORE v. OZMINT
a prior trial, you were limited in being able to
develop that theory?
A: Absolutely.
Q: And wasn’t the jury instructed, in fact, that
there had been a prior finding of guilt and that
it was not really within their province to over-
turn that finding?
A: That’s true.
Q: So it was a very difficult theory to advance in
the context of this third trial, is that a fair state-
ment?
A: Very difficult. And it took a lot of time to try
to cope with having to try to do that method. It
was a very difficult method, not only for a
young practitioner. I think it would have been
difficult for any practitioner to try to advance
that theory.
Id. at 2562-63. Nevertheless, the innocence theory was con-
sistent with what Elmore was telling Garrett: "‘I’m not guilty
of this crime.’" Id. at 2564.
B.
After receiving the aforementioned evidence, the state PCR
court issued the First PCR Order of July 3, 1997, which was
an amended version of an earlier order dated November 29,
1996. See First PCR Order 2 (explaining that such order made
"certain clerical changes" and "a few alterations and dele-
tions" to the November 1996 order). Notably, the original
order was sent to Elmore’s lawyers with a cover letter dated
December 2, 1996, in which the presiding PCR judge stated
as follows:
ELMORE v. OZMINT 85
Edward Lee Elmore may well not be guilty and I
appreciate the effort put forth by defense counsel and
perhaps an appellate court may agree with one of
your positions and grant relief.
J.A. 3135. The judge’s statement is somewhat difficult to har-
monize with his orders denying relief, which demonstrate no
doubt in Elmore’s guilt and at times openly disparage his
claims. That discordance may be explained by the fact —
which Elmore is quick to point out — that the orders are
almost identical to the proposed order submitted by the State
and adapted from its own brief. Even the amended First PCR
Order occasionally refers to itself as a "Brief." See, e.g., First
PCR Order 24, 75 n.1.24
1.
As a threshold matter, the First PCR Order identified the
Supreme Court precedents relevant to Elmore’s claims that
his constitutional rights were contravened by the deficient
performance of his trial counsel, as well as by the State’s sup-
pression of exculpatory evidence and knowing presentation of
false testimony. For purposes of Elmore’s multi-faceted inef-
fective assistance claim, the state PCR court recognized that
its analysis was controlled by the two-prong inquiry outlined
in Strickland v. Washington, which requires the defendant to
show (1) "that counsel’s performance was deficient" (the
"performance prong"), and (2) "that the deficient performance
prejudiced the defense" (the "prejudice prong"). See 466 U.S.
668, 687 (1984). The court further acknowledged that, to sat-
isfy Strickland’s prejudice prong, "[t]he defendant must show
24
In any event, the First PCR Order "is unquestionably an ‘adjudication’
by the state court" entitled to the deferential review mandated by 28
U.S.C. § 2254(d). Young v. Catoe, 205 F.3d 750, 755 n.2 (4th Cir. 2000)
(applying § 2254(d) standard even though "the PCR Court’s Order of Dis-
missal adopted almost verbatim the state’s legal memorandum in opposi-
tion to [Young’s] Application for Post-Conviction Relief").
86 ELMORE v. OZMINT
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different." Id. at 694 (adding that "[a] reasonable proba-
bility is a probability sufficient to undermine confidence in
the outcome").25
With respect to the allegedly suppressed exculpatory evi-
dence, the state PCR court invoked Brady v. Maryland, 373
U.S. 83, 87 (1963) (holding "that the suppression by the pros-
ecution of evidence favorable to an accused upon request vio-
lates due process where the evidence is material either to guilt
or punishment, irrespective of the good faith or bad faith of
the prosecution"), as well as Kyles v. Whitley, 514 U.S. 419,
433-34 (1995) (recognizing that, "regardless of request, favor-
able evidence is material, and constitutional error results from
its suppression by the government, ‘if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been differ-
ent’" (quoting United States v. Bagley, 473 U.S. 667, 682
(1985))). The court also noted the commonality between the
tests for Strickland prejudice and Brady materiality. See
Strickland, 466 U.S. at 694 (explaining that "the appropriate
test for prejudice finds its roots in the test for materiality").
Finally, relevant to the State’s alleged presentation of false
testimony, the state PCR court mentioned Giglio v. United
States, 405 U.S. 150 (1972), which counts among its fore-
bears Napue v. Illinois, 360 U.S. 264 (1959). In Napue, the
Supreme Court reiterated the principle "that a conviction
obtained through use of false evidence, known to be such by
representatives of the State, must fall under the Fourteenth
Amendment." 360 U.S. at 269. The Napue Court also recog-
nized that "[t]he same result obtains when the State, although
25
Additionally, as discussed infra Part VIII.C.2.b.i, the state PCR court
erroneously perceived that Lockhart v. Fretwell, 506 U.S. 364 (1993), ren-
dered Strickland’s prejudice-prong test more demanding by requiring a
showing that the result of the trial was fundamentally unfair or unreliable.
ELMORE v. OZMINT 87
not soliciting false evidence, allows it to go uncorrected when
it appears." Id. Under Giglio and Napue, "[a] new trial is
required if ‘the false testimony could . . . in any reasonable
likelihood have affected the judgment of the jury.’" Giglio,
405 U.S. at 154 (quoting Napue, 360 U.S. at 271) (second
alteration in original); see Bagley, 473 U.S. at 680 (describing
such rule "as a materiality standard under which the fact that
testimony is perjured is considered material unless failure to
disclose it would be harmless beyond a reasonable doubt").
2.
a.
Turning to the First PCR Order’s analysis of the merits of
Elmore’s claims, the state PCR court entertained two conten-
tions involving Mrs. Edwards’s neighbor, Jimmy Holloway:
that the State committed a Brady violation by failing to dis-
close Holloway as a suspect in the Edwards murder, see First
PCR Order 104, and that the defense team rendered constitu-
tionally ineffective assistance under Strickland in failing to
"more fully investigate[ ] the role of Mr. Holloway concern-
ing the victim’s death," id. at 43. In rejecting Elmore’s Brady
claim, the court observed:
[Elmore] asserts that the behavior of the neighbor
was "bizarre under any standard." Clearly, rather
than bizarre, it revealed a legitimately concerned
neighbor who feared that something had happened to
his close neighbor by some obvious circumstances.
His actions to assure that he may need a witness if
the body was found was both legitimate and reason-
able under society’s questioning standards revealed
by [Elmore’s] own claim herein.
As revealed by the Deposition of Thomas Hender-
son, the only assertion of law enforcement to suggest
that Holloway was a suspect was the obvious fact
88 ELMORE v. OZMINT
that he found the body. This was known and
revealed.
***
The only information apparently not disclosed was
SLED Agent Henderson’s mental impression that the
person who finds a murder victim may be a suspect.
The circumstances suggesting that Holloway acted
unusual were known at the time of the 1984 and
1987 trials, having been disclosed in the first trial.
Further, [expert Vincent] Scalise, who speculated
about the nature of Mr. Holloway’s activities, con-
ceded on cross-examination that [Holloway] was act-
ing as a "concerned neighbor" would act at all times
in his activities on Monday, except[, inter alia,]
when he failed to call [Mrs. Edwards’s] home on
Sunday . . . and stopped looking in the house when
he got to the bedroom to contact hospitals and have
someone join him in the search. Mr. Scalise recog-
nized that it was not usual [sic] for a person who
comes upon a crime scene to seek assistance. But
most importantly, Mr. Scalise recognized what all
involved in criminal justice recognize: [that the first
suspect in many murder cases is the person who
finds the body]. He recognized, however, that he did
not have any indication that Mrs. Edwards’ murder
was committed by Mr. Holloway, just that he
thought the actions deserved inquiry. Mr. Scalise
ignored the existence of the Negroid hair identified
with [Elmore] on the scene and questioned the exis-
tence of the motive, although he did acknowledge
that Mr. Elmore was known by Mrs. Edwards.
There is nothing shown that the prosecution had in
its possession that was not disclosed related to Mr.
Holloway’s actions. In a shocking assertion underly-
ing the allegation, [Elmore] asserts directly to "Mr.
ELMORE v. OZMINT 89
Holloway’s possible culpability for this horrendous
crime." A review of the speculative assertions as to
why the crime was not likely done by Mr. Elmore
does not point to Mr. Holloway or anyone else. His
speculative assertions are whether the "scene" sug-
gests a random break-in or burglary. The problem is
that it was not a random murder. Elmore knew and
had done work for the victim. His speculation is not
more than that.
Id. at 105-08 (citations omitted). The court determined that
the State was not obliged to identify "known witness" Hol-
loway as a "suspect." See id. at 105-06, 108. Furthermore, the
court concluded that the State’s failure to disclose Holloway
as a suspect did "not undermine confidence in the outcome of
the case," in that Elmore’s "unfounded characterization of
[Holloway] as the ‘more likely suspect’ [was] gross specula-
tion." Id. at 108; see also id. at 109 (describing Elmore as
"boldly point[ing] the speculative finger towards the victim’s
concerned neighbor, James Holloway").
The state PCR court invoked similar grounds to reject
Elmore’s assertion of ineffective assistance of counsel. On
that issue, the court observed:
In his testimony before this Court [in the PCR pro-
ceedings], counsel Anderson testified that he person-
ally knew Mr. Holloway and was aware that he had
been the first person on the scene and discovered the
victim’s body. Counsel Anderson stated that making
Mr. Holloway a suspect never had entered his mind
and that "I think it’s ludicrous to think he was
involved in any way, just knowing him." Further,
while Anderson did not interview him concerning
the facts of the case, in 1984, he was obviously
aware of the entirety of Mr. Holloway’s role as well
as the forensic evidence of Negroid hairs on the vic-
tim’s bed based upon the earlier trial.
90 ELMORE v. OZMINT
First PCR Order 43-44 (citations omitted). The court also
stated that — although, according to general investigator Hen-
derson, "Mr. Holloway was an initial suspect because he had
found the body and reported it to the police" — there was
"‘no evidence’" against Holloway and the police thus had
"ruled him out." Id. at 44 (citation omitted). In those circum-
stances, the court concluded, there was "no showing of either
deficient performance or prejudice." Id.
b.
The state PCR court also considered Elmore’s Strickland
claim with respect to Dr. Sandra Conradi’s time-of-death
opinion, i.e., that the defense team was constitutionally defi-
cient "in failing to hire an independent pathologist . . . to chal-
lenge Dr. Conradi’s conclusions about the time of death."
First PCR Order 11. After outlining Dr. Conradi’s trial testi-
mony, as well as the PCR evidence of both Dr. Conradi and
Dr. Jonathan Arden, the court concluded — on the perfor-
mance prong of Strickland — that Elmore had "not shown
deficient performance in failing to hire a pathologist to review
Dr. Conradi’s findings." Id. at 22. The court explained that
Dr. Conradi "gave a broad range of death from 12 to 65 [sic]
hours from the time of autopsy," and that, although Dr.
Arden’s "opinion was different, he conceded that there was a
possibility that the time of death could have been on the Sat-
urday night." Id. Additionally, the court observed that "the
historical evidence reveals that Mrs. Edwards’ activities sup-
port death on Saturday night" — that "historical evidence"
being Mrs. Edwards’s unexecuted "plan to leave for North
Carolina on Sunday morning," the "Sunday and Monday
papers in the driveway," "the TV set [being] left on . . . with
the TV Guide open to Saturday," "the automatic coffee pot
being on and the alarm still ringing from a 6:30 A.M., auto-
matic wake-up," and "the fact that [Jimmy] Holloway testified
that he last spoke with Mrs. Edwards at 3:00 o’clock Satur-
day, and on Sunday her car was parked at the house." Id.
ELMORE v. OZMINT 91
On Strickland’s prejudice prong, the state PCR court ruled
that Elmore had "failed to show a reasonable probability that
had a pathologist be [sic] retained in 1984, the result of the
proceeding would have been not guilty." First PCR Order 23.
The court observed that, even without a defense pathologist,
"counsel Beasley was able to clarify that the ‘time of death’
opinion in the 1984 trial was inexact and the range of death
was broad, from 12 hours to 3 days." Id. at 22. Moreover, "Dr.
Arden’s newly developed range [was] within Dr. Conradi’s
range," and Dr. Conradi was able in the PCR proceedings to
"credibly support[ ] her analysis and [provide] reasonable
clarification over matters Dr. Arden assumed she missed." Id.
at 22-23.
c.
Concerning Elmore’s assertion that the pubic hairs alleg-
edly recovered from Mrs. Edwards’s bed were never actually
there, the state PCR court assessed claims under Giglio/Napue
and Strickland. On the Giglio/Napue claim, the court
described Elmore’s assertion as being "that forty-nine hairs
were not recovered from the victim’s bed in January, 1982."
First PCR Order 93. According to the court, Elmore "ques-
tion[ed] the receipt of [the hair] evidence because neither the
bed nor its coverings had blood on them, no photographs were
taken of the bed or of the hair on the bed, and the sheets were
not taken as evidence." Id. There was no mention by the court
of other evidence relied on by Elmore, e.g., that the hairs were
packaged differently than other crime scene evidence; that the
number of hairs found was unusually large; that Elmore
exhibited no apparent groin injury or bruising; and that no
matching hairs were found on Mrs. Edwards’s body, includ-
ing her hands and fingernails, nor anywhere else in her house.
The state PCR court found "that, based upon the credible
testimony of [SLED’s Ira Byrd Parnell, Jr., and Frank Dan
DeFreese], [Elmore] failed in his burden of proof." First PCR
Order 93. Additionally, the court concluded that Elmore had
92 ELMORE v. OZMINT
not demonstrated a due process violation premised on "he
[sic] lack of photographs and the failure to collect the bed-
covers." Id. at 95-96 (recognizing "that the failure of the state
to preserve potentially exculpatory evidence does not consti-
tute a denial of due process unless the defendant can show
bad faith on the part of the police" (citing Arizona v. Young-
blood, 488 U.S. 51 (1988)). On that issue, the court explained
that "[t]here has been no assertion of ‘bad faith’ on the part
of Agents Parnell or DeFreese concerning their crime scene
investigation, just a complaint that they should have done
more." Id. at 96.
On the Strickland claim, with respect to Elmore’s general
contention that his "defense counsel performed incompetently
in stipulating to the chain of custody," the state PCR court
observed that "there was no objection to the exhibits or more
specifically as to the chain of custody of any exhibits pre-
sented in the guilt phase of the 1984 trial." First PCR Order
27. The court further recited:
Counsel Anderson testified [in the PCR proceedings]
that [the prosecutor] had an "open file" and made all
reports available to him. Counsel had also partici-
pated in the earlier trial. Counsel Anderson testified
that in 1982 he had stipulated to the chain of custody
of the forensic evidence that was introduced. . . . He
testified that he was sure that he inquired about the
chain of custody, "but I think I probably stood by my
opinion that I have respect for the SLED team, . . .
they’re the best we have in South Carolina, and I
assumed they were not going to contaminate the evi-
dence."
Id. at 27-28 (citations omitted) (final alteration in original).
Specific to the chain of custody of the hairs allegedly found
on Mrs. Edwards’s bed, the state PCR court determined that
Elmore "failed to show where there was a break in the chain
ELMORE v. OZMINT 93
that counsel failed to show." Id. at 31. The court premised
such determination on its findings that
Agent Parnell discovered and seized the hair from
the victim’s bed, secured the items in a zip-lock bag
and along with Agent DeFreese delivered the item to
Earl Wells at SLED. Lt. Wells then maintained cus-
tody of the hair that was introduced at trial in 1982
until the time of trial.
Id. (citations omitted). Elmore’s "bare assertions to the con-
trary," according to the court, were "without merit." Id.Additionally, the state PCR court ruled that trial counsel
was not constitutionally ineffective for failing to present evi-
dence that the SLED agents neglected to secure the bedcovers
and sheets from Mrs. Edwards’s bed or to photograph the
hairs allegedly found there. The court explained that, "[s]ince
Agent Parnell, who was clearly seeking evidentiary matter
saw no value in the [bedding] not seized — no stains or other
matters to be gained from the covers or sheets [—] it cannot
be said there was deficient performance or prejudice under
Strickland shown." First PCR Order 27 (also observing that
"the speculative presentation of the other witnesses that they
normally seize such items does not create a Sixth Amendment
violation").
With respect to the absence of photographic proof of the
hairs on the bed, the state PCR court characterized Elmore’s
claim as being "that counsel failed to put up experts concern-
ing a failure to photograph the bed where the pubic hairs were
located." First PCR Order 27. Such failure did not constitute
ineffective assistance, the court explained, because "a reveiw
[sic] of the photographs of the scene that were admitted in
1984 show that there were no photographs of the hairs on the
bed. The defense did not need to hire an expert to point that
out." Id. Moreover, according to the court, "[a]s in this PCR
proceeding, Agents Parnell and DeFreese credibly testified
94 ELMORE v. OZMINT
[during the 1984 trial] about the existence and discovery of
the hair." Id.26
d.
Regarding the blood evidence, the state PCR court rejected
Elmore’s contention that the defense team was constitution-
ally ineffective by stipulating to the chain of custody for
Elmore’s coat and pants. See First PCR Order 28-30. In so
ruling, the court discounted Elmore’s interpretation of the
SLED laboratory record as showing that general investigator
Thomas W. Henderson, Jr., had removed the coat and pants
from the laboratory — exposing those items to tampering —
before returning them on February 3, 1982, two weeks prior
to serologist John C. Barron’s blood analysis. The court did
not confront the alleged incongruity between the vast amount
of blood at the crime scene and the comparatively small
amount of blood on Elmore’s clothing. Moreover, the court
did not address Henderson’s alleged motive for planting blood
on Elmore, arising from the fact that Henderson’s mother was
(and Henderson himself had been) a longtime neighbor of
Mrs. Edwards. Instead, the court simply accepted Barron’s
interpretation of the laboratory record, i.e., that the coat and
pants had been handed over to Henderson that February 3,
with the stains already removed. Accordingly, the court found
26
Elsewhere in its decision, in the course of analyzing whether Elmore’s
trial lawyers were deficient for failing to challenge Dr. Sandra Conradi’s
finding of a sexual assault, the state PCR court rejected additional evi-
dence offered by Elmore to undermine the State’s theory that Mrs.
Edwards pulled the pubic hairs from Elmore while he was raping her on
the bed: that is, Dr. Jonathan Arden’s opinion that there was no sexual
assault on Mrs. Edwards while she was still alive. See supra note 17.
According to the court, "Dr. Conradi’s testimony in 1984 as corroborated
in [the] PCR hearing reveals support that Mrs. Edwards was alive when
there was penetration of her vagina." First PCR Order 23. Although the
court acknowledged that it was unclear whether Mrs. Edwards was vio-
lated with an erect penis or an object like the bottle tongs, the court
deemed there to be "strong circumstantial evidence" that it was a penis —
that evidence being the "pulled pubic hairs on the victim’s bed." Id. at 24.
ELMORE v. OZMINT 95
that "John Barron received the evidence and cut out the speci-
mens prior to the return of the coat and jeans to Tom Hender-
son." Id. at 30. And, the court concluded that neither deficient
performance nor prejudice had been shown. See id.27
e.
The state PCR court considered the evidence of the "E-5"
print lifted from the blood-smeared toilet in Mrs. Edwards’s
en suite bathroom in the course of analyzing claims under
Brady, Giglio/Napue, and Strickland. With respect to the
Brady and Giglio/Napue claims, the court observed that
Elmore contended he was deprived of due process in that the
State "falsified evidence, testified falsely, and withheld mate-
rial, exculpatory evidence" — that evidence being the "latent
print found on Mrs. Edwards’ toilet identified as E-5 which
[Elmore’s] experts suggest are fingertips." First PCR Order
61-62. In so contending, Elmore interpreted the PCR testi-
mony of SLED fingerprint analyst Frank Dan DeFreese as
being that, despite his written report deeming the E-5 print to
be unidentifiable, DeFreese had actually compared E-5 to
Mrs. Edwards and Elmore, excluded both of them as the
print’s source, and improperly failed to report those findings.
The state PCR court criticized Elmore for "strain[ing] his
own credibility by the assertions present," and concluded that
there was "no Brady violation or due process violation which
mandated a new trial." First PCR Order 75. The court
explained that DeFreese "did not revise his earlier opinion
27
The state PCR court also concluded that Elmore’s trial lawyers were
not deficient in failing to adduce evidence that there was no blood on
Elmore’s shirt when he arrived at the apartment of his former girlfriend,
Mary Alice Dunlap, after allegedly murdering Mrs. Edwards. According
to the court, defense counsel’s assertion during closing argument — "that
the lack of any evidence of a bloody shirt created a reasonable doubt," see
supra note 9 — accomplished "exactly" the same result that would have
been achieved by questioning Dunlap under oath as to whether Elmore’s
shirt was bloody. See First PCR Order 48.
96 ELMORE v. OZMINT
that E-5 found on the toilet lacked sufficient ridge detail" to
be identifiable, and that Elmore’s "own experts disagreed in
their opinion whether both of the alleged ‘tip’ prints found on
E-5 on the toilet have sufficient detail for comparison." Id. at
76 (noting that "[Hayward] Starling opined only one; [Vin-
cent] Scalise opined that both were sufficient"). According to
the court, "since Agent DeFreese was of the opinion that the
ridge detail was insufficient for comparison, it is a natural
flow that no comparison (or elimination) could be accurately
made, although he testified that he could not find that they
matched either the defendant or the victim." Id.
The state PCR court concluded that, even "[a]ssuming that
the new defense experts would have testified as they did in
the state PCR proceeding, . . . there was no constitutional vio-
lation because the original verdicts [were] worthy of confi-
dence." First PCR Order 76 (internal quotation marks
omitted). The court elaborated:
Now, and before, the jury would be told the same
thing — the defendant’s print was located outside
the home and there are no prints of the defendant
located inside the home. Further, the alleged latent
print on the toilet, if identifiable, is of little value. As
each defense witness conceded, they could not elimi-
nate Mrs. Edwards from being the maker because
her finger tip prints were not available for identifica-
tion. Further, her palm print was already located near
the same area.
The situation with E-5 would be much different if
it was a bloody print suggesting a post-crime place-
ment. However, it was an unidentified latent print or
an unidentifiable latent print. Even the possibility
that it did not belong to [Elmore] or the victim would
not mandate a new trial. The evidence is not exoner-
ating. The mere fact that an unidentified print is
found at the scene does not mean the owner of that
ELMORE v. OZMINT 97
print was Mrs. Edwards’ assailant or [that the print
was] impressed contemporaneous with the crime.
Here, the jury was told (or could have been told
based upon the SLED report) that the latent print on
the toilet was not identified with Edward Elmore.
Nothing has changed since the trial that would have
affected what the jury heard. If it was error in the
expert opinion of Agent DeFreese with respect to E-
5 on the toilet, it was not constitutional error.
[Elmore’s] claims to the contrary are without sup-
port.
Id. at 76-77 (internal quotation marks omitted); see also id. at
109 ("[T]he fingerprint evidence claim does not ‘support’ Mr.
Elmore’s innocence, it merely reveals a print left by an
unidentified person at some time in the past. It is not the exis-
tence of other prints in the home, it is the fact that Elmore’s
print was found that is significant."). Finally, the court
remarked that "[t]he problem with [Elmore’s] argument is that
it fails to recognize that expert opinion in the forensic area
can often not be consistent" — that is, "experts may disagree
as to results." Id. at 78.
Assessing the fingerprint evidence as part of Elmore’s inef-
fective assistance claim, the state PCR court did not squarely
address the performance prong of Strickland. See First PCR
Order 24-25. Elsewhere in its decision, however, the court
observed that Elmore could not obtain a new trial premised on
the fingerprint being "after-discovered evidence," because
"the evidence of the print was as available in 1982 through
1987 as it is today and could have been analyzed [by the
defense] with ‘due diligence.’" Id. at 78 n.2. In any event, the
court rejected the fingerprint evidence aspect of Elmore’s
ineffective assistance claim under Strickland’s prejudice
prong, for the same reason it deemed the print to be immate-
rial under Brady: the existence of an additional identifiable
print in the Edwards home, and the exclusion of Elmore as the
98 ELMORE v. OZMINT
print’s source, "did not undermine confidence in the outcome
of this case." Id. at 25.
The state PCR court further concluded that Elmore failed
to substantiate a Brady, Giglio/Napue, or Strickland claim
premised on the "E-1" and "E-3" prints that were lifted, along
with Elmore’s "E-2" thumbprint, from the exterior frame of
the back door into the Edwards home. See First PCR Order
25, 77-78. Although DeFreese had reported in 1982 that nei-
ther E-1 nor E-3 was identifiable, he conceded during the
PCR proceedings that he had been incorrect with respect to
one of those prints; meanwhile, Elmore’s experts Starling and
Scalise opined that both E-1 and E-3 were identifiable, and
Starling excluded Elmore as their source. In considering the
import of that evidence, the court highlighted three points:
First, it was conceded that Mr. Elmore’s [E-2 thumb-
print was] located in the same area of the door frame
[as the E-1 and E-3 prints]. Second, the mere fact of
an unidentified print outside the house does not con-
nect it necessarily with Mrs. Edwards’ death, absent
other circumstantial evidence, such as Mr. Elmore’s
hair being consistent with the numerous hairs found
on the victim’s bed. Third, the jury was told of the
other prints28 and knew they had not been identified
with Elmore.
Id. at 77-78. The court concluded that the new information
about the E-1 and E-3 prints did "not mandate a new trial,"
because it did "not undermine confidence in the [1984 ver-
dict]." Id.; see also id. at 25 (explaining same).
As for Elmore’s E-2 thumbprint, the state PCR court did
not mention Scalise’s evidence challenging the 1984 testi-
The "other prints" referred to by the state PCR court are apparently the
28
two identifiable prints found inside the Edwards home and matched to
Mrs. Edwards.
ELMORE v. OZMINT 99
mony of DeFreese and four Greenwood city police officers
that the print appeared to be "fresh." Notably, however, the
court has not referred to the thumbprint as being fresh when
summarizing the evidence against Elmore. Additionally, the
First PCR Order contains no discussion of Scalise’s revela-
tions that the E-2 print was upside-down and wrapped around
the door frame, nor Scalise’s opinion that such placement was
consistent with someone performing chores, but inconsistent
with someone knocking on the door and waiting for Mrs.
Edwards to answer.
f.
With respect to James Gilliam’s recantation of his 1982,
1984, and 1987 trial accounts of Elmore’s spontaneous jail-
house confession, the state PCR court assessed, inter alia,
claims under Giglio/Napue and Strickland. The court recog-
nized that the premise of the Giglio/Napue claim was that Gil-
liam’s "recantation of his earlier trial testimony was true," and
that "the state should have known the earlier testimony was
false" and "revealed the falsity of the confession previously."
First PCR Order 49. The court rejected the proposition, how-
ever, that Gilliam’s PCR testimony was reliable and his trial
testimony unreliable. In so doing, the court observed:
Why Gilliam chose to recant his [trial] testimony is
not evident, but that does not mean that his new ver-
sion has credibility and I hold that it does not.
[Elmore’s claim] must be dismissed for the lack of
credibility in the recantation.
Id. at 60; see also id. at 109 ("[T]his Court finds that James
Gilliam did not testify falsely at the three trials — the post
conviction relief recantations are the matters not worthy of
belief."). The court also ruled that Elmore’s trial counsel —
having moved in 1984 to exclude Gilliam’s testimony and
then having "vigorously cross-examine[d]" him in an "at-
tempt[ ] to suggest that [he] was getting favorable treatment"
100 ELMORE v. OZMINT
for his account of Elmore’s confession — was not constitu-
tionally ineffective in dealing with Gilliam as a witness. Id. at
10-11. Simply put, according to the court, "[t]here was noth-
ing more counsel could have done which would have proba-
bly changed the result." Id. at 11.
g.
The state PCR court considered the testimony of Dr. Jona-
than Venn in the context of assessing Elmore’s Strickland
contention that his trial lawyers were deficient in failing to
present expert psychological evidence that his statement to
investigators — that if he killed Mrs. Edwards, he did not
remember doing so — was not inculpatory. The court con-
cluded, inter alia, that because Elmore had testified during the
1982 trial that he had not made any such statement, counsel
could not "be deemed deficient for failing to present specula-
tive testimony [during the 1984 trial] that the comment was
the product of a memory deficit or low intelligence." First
PCR Order 47. Additionally, the court observed that such tes-
timony, "if presented, would not have undermined confidence
in the outcome where it was in support of the fact that [the
statement] was made and could be truthful!" Id.
h.
As a general matter, the state PCR court underscored that
Elmore had "been convicted two times of the murder of Doro-
thy Edwards in Greenwood and sentenced to death three
times." First PCR Order 4. The court also referred to Elmore’s
"attempts to undermine confidence in those sound verdicts"
— though the 1982 convictions and death sentence were over-
turned by the Supreme Court of South Carolina because of
reversible error by the trial judge, and the 1984 death sentence
was vacated by the Supreme Court of the United States for
improper exclusion of mitigation evidence. See id. In any
event, the state PCR court determined that — during the guilt
phase of the 1984 trial, as well as the 1987 sentencing-phase-
ELMORE v. OZMINT 101
only trial — "counsel for [Elmore], the investigating law
enforcement officers, and the prosecution performed within
the mandates required by the United States Constitution." Id.
at 4-5.
Specific to Elmore’s multi-faceted claim that his 1984
defense team rendered constitutionally deficient assistance,
the state PCR court recognized that Elmore’s prior testimony,
"etched into the record in 1982, had an effect on how counsel
would prepare and present the case in the retrial in 1984."
First PCR Order 9. The court cited Elmore’s 1982 testimony
concerning
his location on Saturday and Sunday, his denial of
any involvement in the death of Mrs. Edwards, his
admission of knowing Mrs. Edwards and having
been both inside and outside her house, his denial
that he made any comments to [the police] concern-
ing if he killed him [sic] he did not remember, his
denial of any communication about the crime at all
with James Gilliam, his concession that he wore the
jeans, coat, and shoes on the same night Mrs.
Edwards was killed, and his removal and loss of the
white shirt he was wearing.
Id. at 8-9. Without explaining why that testimony (with one
exception) interfered with trial counsel’s ability to engage in
the tactics that Elmore asserted were necessary for a fair trial
— particularly a pretrial investigation of the State’s forensic
evidence — the court concluded that "[c]ounsel was neither
‘deficient’ or [sic] has Sixth Amendment prejudice been
shown with respect to the second trial." Id. at 9.29
29
The one exception to the state PCR court’s failure to explain why
Elmore’s 1982 testimony interfered with a proposed tactic for the 1984
trial was this: As discussed above, the court ruled that the defense team
was not deficient in 1984 by failing to present expert testimony on
Elmore’s memory deficits to explain his "if he killed Mrs. Edwards, he did
not remember doing so" statement to the police, because, at the 1982 trial,
Elmore had denied making any such statement. See First PCR Order 47.
102 ELMORE v. OZMINT
Finally, the state PCR court declared that there was "over-
whelming evidence . . . that solely pointed to the guilt of
Edward Elmore." First PCR Order 119. According to the
court, "[v]iewed from the juror’s perspective in the 1984 trial,
the only choice based upon the evidence was to convict." Id.
at 120.30
V.
A.
Elmore pursued an appeal from the First PCR Order in the
Supreme Court of South Carolina. In late October 1998, while
that appeal was pending, the State revealed that it had located
a box containing physical evidence — previously claimed to
be missing — that Elmore had persistently sought in the PCR
proceedings. The most significant piece of once-missing evi-
dence was "Item T," which included the unmatched Cauca-
sian hair recovered from Mrs. Edwards’s bloody abdomen
during her autopsy. Item T was found, along with other
Edwards murder evidence, in hair analyst Earl Wells’s private
office at SLED headquarters in Columbia, where it apparently
had been stored away for nearly seventeen years.
1.
As early as the proceedings culminating in the First PCR
Order of July 3, 1997, Elmore had underscored discrepancies
between the written reports of Dr. Sandra Conradi and Earl
Wells concerning the contents of Item T. According to Dr.
Conradi’s autopsy report, "[e]xamination of [Mrs. Edwards’s]
30
The state PCR court’s observations about the "overwhelming evi-
dence" against Elmore were made in the course of assessing his Sixth
Amendment claim that the 1984 trial was not conducted before an impar-
tial jury. See supra note 1. That claim is premised on PCR evidence that
a 1984 juror, after being selected for the jury and while preparing to be
sequestered for the duration of the proceedings, had improper and prejudi-
cial contact with a juror from the 1982 trial.
ELMORE v. OZMINT 103
chest and abdomen reveal[ed] occasional dark colored tightly
curled apparent pubic hair." J.A. 3617. Dr. Conradi signed a
subsequent log of "Evidence Transferred" to the police,
reflecting the transfer of "fibers, hairs from chest & abdo-
men." Id. at 3628. After receiving and analyzing that evidence
(by then designated as Item T), Wells reported that it con-
sisted of "[b]lue fibers." Id. at 3630. An additional record
indicates that, at the time of Elmore’s first trial in 1982, Wells
transferred custody of Item T to the Greenwood City Police
Department. See id. at 1777.
Item T was neither referenced nor introduced during any of
Elmore’s three trials, and the conflicting reports of Dr. Con-
radi and Wells went unnoticed and unquestioned by Elmore’s
defense team. Contrastingly, Elmore’s PCR counsel discerned
the discrepancies and repeatedly sought access to Item T to
resolve them, but was foreclosed in those efforts by the
State’s claim that Item T was missing. See, e.g., J.A. 2301-02
(representation to state PCR court by Assistant Deputy Attor-
ney General Donald J. Zelenka in 1995 that "[w]e’ve been
doing diligent searches" for the missing evidence, "but I have
it pretty much upon firm information that those matters are no
longer in existence"); id. at 1616-19 (1995 PCR deposition
testimony of Wells that Item T was among evidence turned
over to city police in 1982 and, to his knowledge, had never
been returned to him or anyone else at SLED).
Dr. Conradi testified during the state PCR court’s 1995 evi-
dentiary hearing that, although she reported both fibers and
hairs in Item T, it was "just a quick designation of what" the
Item T materials might be. J.A. 2704. Furthermore, Dr. Con-
radi cautioned that it was "not unusual" to mistake hairs for
fibers or fibers for hairs. Id. at 2684. She explained: "What we
attempt to do is collect the evidence . . . and transfer it to
somebody who can see what it is. We have called hairs fibers
and fibers hairs before." Id. at 2704.
For his part, Wells testified at the hearing on direct exami-
nation by the State that his "microscopic examination
104 ELMORE v. OZMINT
revealed that the only thing present in [Item T] was blue
fibers; no hair." J.A. 2792. On cross-examination, Elmore’s
PCR counsel asked Wells whether he had "independent
knowledge" that Item T contained blue fibers only, or whether
he was "simply making an assumption" based on his written
report. Id. at 2820. Wells insisted that it was "not an assump-
tion" that the Item T materials were limited to blue fibers. Id.
He proclaimed: "I have examined the items that were con-
tained in that exhibit. Those items proved to be blue fibers.
No hairs. Just blue fibers." Id. According to Wells, "it was
wrong for [Dr. Conradi] to identify fibers and hair." Id.
Relying on that 1995 testimony, the state PCR court
rejected Elmore’s Sixth Amendment Strickland contention
that his trial lawyers rendered ineffective assistance by failing
to investigate the discrepancies between Dr. Conradi’s and
Wells’s descriptions of Item T. See First PCR Order 32. In so
ruling, the court found that Item T consisted solely of blue
fibers, and explained that "[d]efense counsel cannot be
deemed ineffective for failing to develop that blue fibers were
found on the victim’s body rather than hair." Id. Indeed,
according to the court, Elmore "failed to show either deficient
performance or prejudice." Id. Elmore thereafter filed his
appeal from the First PCR Order in the state supreme court.
2.
On October 29, 1998, Assistant Deputy Attorney General
Zelenka advised Elmore’s PCR counsel that Edwards murder
evidence had been discovered in Wells’s private office at
SLED headquarters, where the parties met on November 19,
1998, to discern what had been found. As it turned out, the
evidence included four microscopic slides mounted with the
Item T materials — four human hairs, three animal hair frag-
ments, and a single blue fiber. Consequently, on December 4,
1998, the parties filed a joint motion in the state supreme
court to dismiss without prejudice Elmore’s pending appeal
from the First PCR Order, and to remand to the state PCR
ELMORE v. OZMINT 105
court for further proceedings, including a reopening of the
evidentiary record. The state supreme court granted the par-
ties’ motion by its order of January 8, 1999.31
In a subsequent deposition, Zelenka testified concerning the
discovery of the Item T slides and other evidence in Wells’s
office. Zelenka explained that, in mid-October 1998, follow-
ing an inquiry from the state supreme court about missing
exhibits from the state PCR court’s 1995 evidentiary hearing,
he contacted Wells "to see if somehow he may have had
[those exhibits] in his possession for some reason." J.A. 3510.
Wells responded to the inquiry on October 28 or 29, saying
that he did not possess the sought-after exhibits, but that he
had "located a box of [other] Elmore materials" during a
move from one private office to another within SLED head-
quarters. Id. Wells also said "he had been meaning to call
[Zelenka] about that"; Wells did not specify (and Zelenka did
not inquire) when the evidence had been discovered. Id. at
3510-11. Zelenka was not sure where in Wells’s office the
Item T slides had been located, but recalled it might have
been in a filing cabinet. See id. at 3517.
The State offered to have Wells testify during the state PCR
court’s initial remand hearing of April 9, 1999, but Elmore’s
PCR counsel objected on the ground that such testimony
should await further analysis of Item T. See J.A. 3363-64. The
court sustained Elmore’s objection, marked for identification
the four Item T slides and other evidence that had been dis-
covered in Wells’s possession, and released that evidence to
Elmore’s lawyers for testing. See id. at 3364-71.
That June, Elmore’s hair expert, analytical microscopist
Skip Palenik, determined that the first Item T slide contained
a Caucasian pubic hair inconsistent with Mrs. Edwards. See
J.A. 3564-65. Additionally, Palenik reported that the second
31
The state supreme court’s January 8, 1999 remand order is found at
J.A. 3354.
106 ELMORE v. OZMINT
slide included a Caucasian hair fragment unsuitable for micro-
scopic comparison, three animal hair fragments, plus the sin-
gle blue fiber; that the third slide contained a Caucasian head
hair that might be suitable for comparison if properly
mounted; and that the fourth slide contained a Caucasian head
hair that was consistent with Mrs. Edwards. See id. at 3565-
66.
At a status conference of July 1, 1999, Elmore requested
the state PCR court to grant immediate relief — a new trial
— on the basis of Palenik’s finding of the unmatched Cauca-
sian pubic hair. See J.A. 3403-04. The State opposed
Elmore’s new trial request as "a little premature," and sought
to have the Item T slides analyzed by an independent expert
of its choosing, plus re-examined by Wells. See id. at 3407-
09. Counsel for Elmore indicated opposition to Wells’s fur-
ther hair analysis, explaining that it would be
absolutely of no value to this Court to have Mr.
Wells look at the hair again. . . . Mr. Wells has had
the hair in his possession for 17 years[, and] is the
person who received this hair evidence from Sandra
Conradi[,] who mounted it on slides, who examined
it under a microscope and then wrote down the result
of his analysis as blue fiber. Mr. Wells at this point
has maybe more interest in the outcome of this anal-
ysis of that hair evidence than Mr. Elmore does.
Id. at 3410-11. The court deferred ruling on Elmore’s new
trial request, authorized independent testing by the State, and
denied permission for re-examination by Wells or any other
SLED agent. Id. at 3412.
Thereafter, the State submitted the four Item T slides to
Myron T. Scholberg, a retired FBI forensic scientist, for
microscopic examination. According to Scholberg’s affidavit,
"the presence of hair was immediately apparent and clearly
visible, that is to say that hair was visible on these slides to
ELMORE v. OZMINT 107
the naked eye." J.A. 3638. Scholberg averred that "I do not
know or see how Mr. Wells could have looked at the four
microscopic slides and honestly reported that the four Item T
slides only contained blue fiber." Id. Scholberg disagreed,
however, with Palenik’s conclusion that the Caucasian pubic
hair on the first slide was inconsistent with Mrs. Edwards.
Rather, Scholberg found that the hair on the first slide was
consistent with Mrs. Edwards, as were the hairs on the third
and fourth slides. See id. at 3566-67. Like Palenik, Scholberg
found that the second slide contained a Caucasian hair frag-
ment unsuitable for microscopic comparison, three animal
hair fragments, and the lone fiber. See id.
In the face of the diverging opinions of Palenik and Schol-
berg, the parties agreed to subject the Item T materials to
mitochondrial DNA testing, which had then only recently
been deemed admissible by the state supreme court. The final
results of the DNA testing, performed by LabCorp in North
Carolina, were reported on November 26, 2000. See J.A.
3635-37. In line with Scholberg’s analysis, the DNA testing
indicated that the hairs on the first, third, and fourth slides
belonged to Mrs. Edwards or her maternal relative. See id. at
3637. Significantly, however, the DNA testing also revealed
that the second slide’s previously uncompared Caucasian hair
fragment "could not have originated from Dorothy Edwards."
Id.32
3.
Relying on the DNA test results excluding Mrs. Edwards
as the source of one of the Item T Caucasian hairs, Elmore
filed a motion for summary judgment, by which he again
requested immediate relief in the form of a new trial. In his
32
It is not clear from the record whether the unmatched Caucasian hair
contained on the second Item T slide is a head hair or a pubic hair, or
whether any effort was made to determine the source of the second slide’s
three animal hair fragments and single blue fiber.
108 ELMORE v. OZMINT
supporting memorandum, Elmore explained that, although he
had "raised many grounds for relief," he sought summary
judgment on "a straightforward claim of state misconduct,
including concealment of material exculpatory evidence and
perjured testimony by law enforcement officers." J.A. 3540.
As part of its opposition to Elmore’s motion, the State prof-
fered an affidavit executed by Wells, who stated that, as of his
1995 PCR testimony, he was "of the belief that [he] did not
possess any evidentiary material" concerning the Edwards
murder. Id. at 3573. Wells also averred, arguably contrary to
his 1995 testimony, that he had fully "relied upon [his 1982
written] report in responding to questions concerning the test-
ing." Id. ("During my testimony at the state post-conviction
relief hearing in March 1995 I testified concerning my analy-
sis of item ‘T’ and relied solely upon my April 2, 1982 report
and my standard practice upon review of my case documenta-
tion."). According to Wells, he found Item T and the other
once-missing evidence in his office "[d]uring late October
1998," and he did not inspect that evidence until November
19, 1998, when counsel for the parties met with him at SLED
headquarters. Id. at 3574. At that time, Wells made "a visual
inspection of some of the material and determined it included
hair in addition to fibers through the use of a stereo micro-
scope." Id.
During a hearing conducted on December 21, 2000, the
state PCR court, without objection, converted Elmore’s sum-
mary judgment motion to a motion to alter or amend the First
PCR Order. See J.A. 3585 ("Right or wrong, I treat it as a
motion to alter or amend, you get the same result if I alter it
or amend it so as to grant the relief, you get the same results
if I deny it."). Elmore’s PCR lawyers focused their arguments
on the Fourteenth Amendment Brady claim and alleged per-
jury concerning Item T, and also reminded the court of previ-
ously raised issues, including irregularities in the blood,
fingerprint, and other hair evidence, the recantation of James
Gilliam, and Elmore’s low level of intelligence and memory
problems. One of those lawyers summarized:
ELMORE v. OZMINT 109
Item-T is, in and of itself, is enough to grant a new
trial. The results are exculpatory, they are clearly
exculpatory. Caucasian hair . . . found on the dead
abdomen of the victim, [not belonging] to the victim
or to Mr. Elmore. That, you know, in and of itself is
a reason you should alter or amend the judgment in
this case and grant a new trial to Mr. Elmore. But
Item-T does not stand alone[,] as powerful as it is, as
exculpatory as the results are, it doesn’t stand alone.
And the suspicious nature of how it was found [—]
I guess sometimes the cover up is always worse than
the lie, but the continuing to have lies about what it
was, who had it when, again casts essentially a pale
of suspicion over everything in this case.
Id. at 3594. Focusing on the forty-five pubic hairs allegedly
recovered from Mrs. Edwards’s bed, the lawyer asserted that
"the hair evidence was always suspicious to begin with, [and]
I think now in light of [the Item T] evidence and what this
Court has seen[,] it’s much beyond merely suspicious." Id. In
the lawyer’s words, "the whole thing really stinks." Id. at
3594-95.
In response, the State conceded that Item T had been misre-
ported as encompassing solely blue fibers, but maintained that
the unmatched Caucasian hair discovered therein was not
material under Brady (nor prejudicial under Strickland)
because Mrs. Edwards "could easily have picked up stray
hairs" during the violent assault in her home that were "com-
pletely unrelated to this crime." J.A. 3602. Moreover, accord-
ing to the State, other evidence — such as Elmore’s
thumbprint outside the house, the Type A blood on his cloth-
ing, the microscopically consistent pubic hairs on Mrs.
Edwards’s bed, and Gilliam’s account of Elmore’s jailhouse
confession — "point[ed] to Mr. Elmore as being . . . the
appropriate Defendant in this case." Id.
At the close of the hearing, the state PCR court orally ruled
that, although it would amend the First PCR Order to address
110 ELMORE v. OZMINT
the subsequent developments with respect to Item T, it would
not award Elmore a new trial. See J.A. 3614. In so ruling, the
court accepted the State’s position, explaining: "Obviously
[Item T] should have been disclosed to counsel at the time,
but as far as impacting on the [1984 verdict], I don’t think that
it would have." Id. The court also indicated that the First PCR
Order’s disposition of all other grounds for relief would stand.
Id. In closing, the court remarked, "Good luck to everybody,
I’m out of here." Id.
On January 4, 2001, prior to the state PCR court’s issuance
of a written order memorializing its December 21, 2000 oral
ruling, Elmore filed a motion for reconsideration and addi-
tional fact development. Elmore maintained therein that his
lawyers "were caught off guard by the ‘conversion’ of" his
summary judgment motion to a motion to alter or amend, and
had expected "there would be opportunities for further fact
development" if the motion were denied. J.A. 3641
("[C]ounsel for Mr. Elmore did not make sufficiently clear at
the hearing that if the court believed the present record was
not sufficient to grant post-conviction relief, [Elmore] was
entitled to take advantage of the opportunity provided by the
South Carolina Rules of Civil Procedure to seek the court’s
assistance in additional fact development."). Elmore asserted
that he should yet be entitled to pursue motions for authoriza-
tion to do the following:
*Exhume the body of Mr. James Holloway in order
to obtain a DNA sample (to determine if the [unmat-
ched Item T] hair belongs to him) and to see if it is
possible to still obtain finger prints (to check against
the unidentified prints found on the toilet seat in the
victim’s private bathroom);
*Obtain a court order for the release of any other fin-
gerprint cards, etc., which may exist for Mr. Hol-
loway;
ELMORE v. OZMINT 111
*Review the personnel records of SLED Agent Earl
Wells and other officers involved in this case;
*Review SLED records to determine when Mr.
Wells, in fact, moved offices; . . .
*Conduct DNA testing of the shoe and blue jean
pants introduced at trial, but without waiving
[Elmore’s] objection to the tainted chain of custody
of the shoes and pants and noting that [Elmore] fully
believes that the few small areas of Type A blood
. . . identified on the shoe and pants were either
placed their [sic] when the items were inexplicably
removed from SLED by former neighbor to James
Holloway[,] SLED agent Tom Henderson, . . . prior
to the items being tested — or that testing of the
items would further exonerate [Elmore]; and
*Conduct DNA testing of the scrapings taken from
under the victim’s fingernails.
Id.
The State opposed Elmore’s motion for reconsideration and
additional fact development, contending that his lawyers had
demonstrated consent to the conversion of the summary judg-
ment motion and had never before indicated a need for further
discovery despite ample opportunities to do so. See J.A. 3644-
47. The State also asserted that "further discovery is simply
not supported by reason," and that the specific request "to
exhume the body of Mr. James Holloway is made without any
legal or factual showing." Id. at 3647-48. In reply, Elmore
maintained that his summary judgment motion served the
interests of judicial economy and efficient use of financial
resources. See id. at 3651. Elmore further contended that
"[j]ustice requires that [the requested additional] testing occur
before the state executes [him], and the appropriate time and
place to do this crucial testing is now and in the state court’s
112 ELMORE v. OZMINT
jurisdiction." Id. Nonetheless, Elmore indicated that he was
amenable to "less intrusive methods of obtaining" Holloway’s
DNA than the exhumation of his body. Id. at 3652.
4.
By its Second PCR Order of February 26, 2001, the state
PCR court memorialized its December 21, 2000 oral ruling,
and denied Elmore’s motion for reconsideration and addi-
tional fact development. At the outset of its decision, the court
observed that it was disallowing Elmore a new trial premised
on the unmatched Item T hair; nevertheless, the court recog-
nized that such "hair evidence is new evidence not available
at the earlier hearings which" required amendment of the First
PCR Order’s discussion of Elmore’s previously raised Item T
Strickland contention. See Second PCR Order 3-4.
In addressing the merits of Elmore’s more recent Item T
Brady claim, the state PCR court recognized: "That the hair
evidence taken from the victim’s body should have been dis-
closed during discovery cannot be denied." Second PCR
Order 4. The court noted, however, that Elmore’s "position
that Agent Wells knowingly withheld this evidence is refuted
by both his Affidavit and the fact that it was he, not another
source, who discovered the missing evidence and reported the
discovery in October of 1998 to Mr. Zelenka." Id. It is not
clear whether the court ruled that the State improperly sup-
pressed Item T despite Wells’s mere negligence, or that
Wells’s mere negligence excused the suppression. Mean-
while, the court plainly dismissed the notion that Wells had
committed perjury in his 1995 PCR testimony. See id.
(accepting Wells’s "sworn statement that his previous testi-
mony was incorrect but was based upon his then recollec-
tion"). And, the court did not confront the issue of why
Wells’s 1982 written report reflected that Item T consisted
solely of "[b]lue fibers." J.A. 3630.
Relevant to the issue of Brady materiality, the state PCR
court underscored that only one unmatched Caucasian hair
ELMORE v. OZMINT 113
was found among the Item T materials, and indicated that the
Item T evidence would be more compelling if "numerous
hairs removed from the body were Caucasian and inconsistent
with the victim’s hair as established by the latest DNA test-
ing." Second PCR Order 4. The court concluded:
One hair from the victim’s body from the bedroom
floor that could have come from various sources
does not mandate a new trial[,] especially where
even if the state of the art DNA testing existed in
[the 1980s], the test results would be the same, i.e.
one Caucasian hair from the body not consistent with
the victim’s hair.
Id. at 5. The court also alluded to the forty-five pubic hairs
that were microscopically consistent with Elmore and alleg-
edly found on Mrs. Edwards’s bed, noting Elmore’s failure to
request DNA testing of those hairs. See id.
Revisiting Elmore’s previously raised Item T Strickland
contention, the state PCR court "decline[d] to find [Elmore’s]
counsel ineffective for not further pursuing the fiber evi-
dence." Second PCR Order 4. The court seemed to rely on the
prejudice prong of Strickland, rather than the performance
prong. That is, in the course of its discussion relevant to
Brady materiality, the court remarked that Elmore "failed to
prove a Sixth Amendment violation due to attorney defi-
ciency" — thereby indicating that Elmore’s Strickland con-
tention failed for absence of prejudice, just as his Brady claim
fell short for lack of materiality. Id. at 5.
Finally, on its denial of Elmore’s request for additional fact
development, the state PCR court observed that "[t]he argu-
ment that counsel was misled by the [conversion of the sum-
mary judgment motion] is not compelling," and the court
criticized Elmore’s lawyers for "apparently assum[ing] I
would order a new trial based on argument not proof." Second
PCR Order 6. The court also noted that "[t]his case has been
114 ELMORE v. OZMINT
on remand since 1999, the final hearing held and extensive
investigation performed. I will not now authorize further test-
ing. The case was remanded by consent to examine the miss-
ing hair evidence, not to reopen the evidentiary hearing." Id.
As to specific items sought by Elmore, the court denied his
"request to inspect SLED Agent Wells’ file," because Elmore
had disregarded prior opportunities to obtain that evidence. Id.
The court also withheld permission to exhume the body of
Jimmy Holloway, explaining: "Holloway himself testified he
was in the victim’s home when the body was found. Even if
DNA testing showed the single [unmatched Item T] hair to be
Holloway’s, the prior jury verdicts would not have been
undermined." Id. at 5.33
33
At a subsequent hearing of May 7, 2001, the state PCR court advised
the parties that it would correct an erroneous reference in the Second PCR
Order to the unmatched Item T hair as being "non-Caucasian" (rather than
"Caucasian"), which the court did by order of May 18, 2001. Also during
the May hearing, Elmore’s lawyers returned evidence that had been
entrusted to them for review and testing, including that reported in Octo-
ber 1998 as having been found in Wells’s private office at SLED head-
quarters. The items being resubmitted to the court also included two boxes
of evidence — some not previously disclosed to Elmore — that had been
discovered in the possession of the Greenwood City Police Department
and transferred to the custody of Elmore’s lawyers in late April 1999, fol-
lowing the January 1999 remand by the Supreme Court of South Carolina.
Those boxes contained physical evidence (such as Mrs. Edwards’s bloody
robe, scrapings from beneath her fingernails, and an unknown material
removed from behind her left ear), plus police reports and diagrams, notes
of witness interviews, and three strips of negatives of photographs taken
at the crime scene. One of those photographs showed the bed in Mrs.
Edwards’s bedroom where forty-five of Elmore’s pubic hairs were alleg-
edly discovered. According to Elmore, the photograph specifically showed
"crime scene equipment — cameras, cases, and other processing materials
— all over the top of the bed on which the hair was allegedly found. No
hair was visible in the photograph." Br. of Appellant 7-8. In returning the
photograph and other evidence to the state PCR court, Elmore’s lawyers
indicated that they were doing so as a result of the court’s ruling that there
would be no testing or consideration of evidence that was not the subject
of the remand order — including the evidence discovered post-remand in
the hands of the city police. See J.A. 3689-90.
ELMORE v. OZMINT 115
B.
Following the state PCR court’s issuance of the Second
PCR Order, Elmore revived his appeal in the Supreme Court
of South Carolina, now challenging both the First PCR Order
and the Second PCR Order. On June 10, 2003, the state
supreme court granted a writ of certiorari on every question
presented, including the Sixth and Fourteenth Amendment
claims at issue herein. After briefing and oral argument, how-
ever, the court dismissed the writ as improvidently granted by
order of July 12, 2004. Elmore filed a petition for rehearing
from the denial of certiorari, in which he notified the court
that the State had agreed to conduct additional DNA testing
that could prove exonerating. On September 20, 2004,
Elmore’s rehearing petition was denied.
VI.
A.
On September 22, 2004, having exhausted his Sixth and
Fourteenth Amendment claims in the South Carolina courts
and facing an imminent October 15, 2004 execution date,
Elmore initiated these federal habeas corpus proceedings in
the District of South Carolina. On October 5, 2004, the dis-
trict court granted a stay of Elmore’s execution, and, during
a status conference of December 7, 2004, the parties
requested court supervision over the further DNA testing that
they had agreed to conduct by consent. Thereafter, the court
directed delivery of evidence to SLED Agents Ira Jeffcoat and
Kenneth L. Bogan, whom the parties agreed would conduct
the DNA tests (unless more complicated mitochondrial DNA
testing proved necessary). The evidence designated for testing
included the hairs allegedly recovered from Mrs. Edwards’s
bed, scrapings from beneath her fingernails, and blood found
on Elmore’s pants and shoes.
On July 5, 2005, Elmore filed his 28 U.S.C. § 2254 peti-
tion, in which he asserted not only exhausted claims, but also
116 ELMORE v. OZMINT
the unexhausted claim that, because he is mentally retarded,
his execution would contravene the Eighth Amendment under
Atkins v. Virginia, 536 U.S. 304 (2002). The Supreme Court
of the United States had decided Atkins on June 20, 2002,
while Elmore’s petition for certiorari was pending in the
Supreme Court of South Carolina as part of the state PCR
proceedings; the state supreme court subsequently granted
Elmore the writ of certiorari on June 10, 2003, ten days shy
of the one-year anniversary of the Atkins decision. Notably,
Atkins abrogated South Carolina precedent deeming the exe-
cution of mentally retarded prisoners to be constitutional. See
State v. Jones, 378 S.E.2d 594, 597 (S.C. 1989). Moreover, a
South Carolina statute imposes a one-year limitations period
for filing a PCR claim premised on a newly recognized con-
stitutional standard or right. See S.C. Code Ann. § 17-27-
45(B).
The respondents in these federal habeas proceedings — Jon
Ozmint, Director of the South Carolina Department of Cor-
rections, and Henry McMaster, the State’s Attorney General
(collectively, the "Respondents") — answered Elmore’s
§ 2254 petition and moved for summary judgment on Septem-
ber 6, 2005. The Respondents contended, inter alia, that the
Atkins claim (unlike Elmore’s other claims) was barred for
failure to exhaust state remedies. See 28 U.S.C. § 2254(b)(1)
(providing that a state prisoner’s petition for a writ of habeas
corpus "shall not be granted unless it appears that" the peti-
tioner "has exhausted the remedies available in the courts of
the State"). In his response of September 26, 2005, Elmore
requested the district court, pursuant to Rhines v. Weber, 544
U.S. 269 (2005), to stay his petition and hold the federal pro-
ceedings in abeyance while he returned to state court to
exhaust his Atkins claim. The following day, September 27,
2005, Elmore indeed initiated parallel Atkins litigation in the
state PCR court with the filing of his second PCR application.34
34
The respondents in the parallel state Atkins litigation were the State of
South Carolina and Ozmint, collectively referred to as the "State" in our
discussion of those PCR proceedings.
ELMORE v. OZMINT 117
In subsequent memoranda requested by the district court on
the stay issue, the parties outlined their competing positions
on the applicability of Rhines, which instructs that a stay is
appropriate "if the petitioner had good cause for his failure to
exhaust, his unexhausted claims are potentially meritorious,
and there is no indication that the petitioner engaged in inten-
tionally dilatory litigation tactics." 544 U.S. at 278. Naturally,
Elmore claimed eligibility for the Rhines stay and abeyance
procedure. By contrast, the Respondents contended both that
Elmore lacked good cause for his failure to exhaust and that
his Atkins claim was not potentially meritorious, because
Elmore had failed to comply with South Carolina’s statute of
limitations by asserting the claim in state court within one
year of Atkins being decided, and, alternatively, because
Elmore is not in fact mentally retarded. With their Rhines
memorandum, the Respondents filed copies of the State’s
pleadings in the parallel state Atkins litigation, making the
same timeliness and merits contentions.35
The district court denied Elmore’s stay request by its order
and opinion of April 25, 2006, and refused to alter or amend
that ruling by order and opinion of August 11, 2006.36 In the
latter decision, the court explained that Elmore could not jus-
tify his failure to initiate the state Atkins litigation within
South Carolina’s one-year limitations period and, thus, failed
to satisfy Rhines’s requirement of good cause for the failure
to exhaust.
In the meantime, on October 27, 2005, the magistrate judge
had issued his report and recommendation, stating that the
35
In asserting that Elmore is not mentally retarded, the Respondents
maintained that — under principles of res judicata, issue preclusion, and
collateral estoppel — Elmore was stuck with the 1995 PCR testimony of
his expert, Dr. Jonathan Venn. See supra note 22 (relaying Dr. Venn’s
opinion that "‘Mr. Elmore is not mentally retarded, but he’s just a notch
above being mentally retarded’" (quoting J.A. 2362)).
36
The district court’s April 25, 2006 order and opinion is found at J.A.
4671-77, and its August 11, 2006 order and opinion at J.A. 4689-91.
118 ELMORE v. OZMINT
district court should grant the Respondents’ summary judg-
ment motion and deny Elmore relief on all of his pending
§ 2254 claims — a disposition that the district court imple-
mented by its order and opinion of May 17, 2007, denying
Elmore a writ of habeas corpus, and its order and opinion of
August 3, 2007, refusing to alter or amend the judgment.37
The claims pursued by Elmore in his § 2254 petition, in addi-
tion to the Atkins claim, included the following: the Strickland
and Brady claims premised on the suppression of the unmat-
ched "Item T" Caucasian hair removed from Mrs. Edwards’s
bloody abdomen during her autopsy; the Strickland and
Giglio/Napue claims involving the forty-five pubic hairs
allegedly found on Mrs. Edwards’s bed; the Strickland claim
concerning the medical examiner’s time-of-death opinion; the
Strickland, Brady, and Giglio/Napue claims related to the fin-
gerprint evidence; and the Giglio/Napue claim based on
James Gilliam’s since-recanted account of Elmore’s spontane-
ous jailhouse confession. Those claims comprise the Sixth
Amendment ineffective assistance claim and the Fourteenth
Amendment due process claim now before us.38
The magistrate judge demonstrated no hesitation in con-
cluding that the state PCR court’s adjudication of Elmore’s
claims passed muster under § 2254, and the district court
largely did the same in its initial order denying the writ, but
for one exception: The district court recognized that the state
PCR court’s finding that Earl Wells did not knowingly sup-
37
The magistrate judge’s October 27, 2005 report and recommendation
is found at J.A. 4397-4537, the district court’s May 17, 2007 order and
opinion at J.A. 4692-4762, and its August 3, 2007 order and opinion at
J.A. 4964A-Q.
38
Elmore also pursued in the district court, as he does in this appeal, the
Sixth Amendment claim that his 1984 trial was not conducted before an
impartial jury. See supra note 1. Elmore elected to abandon other claims
exhausted and rejected in the South Carolina courts, i.e., the Strickland
and Brady claims concerning the possible culpability of Mrs. Edwards’s
neighbor, Jimmy Holloway, plus the Strickland claims premised on the
blood evidence and the testimony of Gilliam and Dr. Venn.
ELMORE v. OZMINT 119
press Item T was irrelevant under Brady. See Brady v. Mary-
land, 373 U.S. 83, 87 (1963) ("[T]he suppression by the
prosecution of evidence favorable to an accused . . . violates
due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of
the prosecution." (emphasis added)). Nevertheless, the district
court agreed with the state PCR court’s conclusion that the
suppression of Item T was immaterial to the 1984 verdict.
In seeking to alter or amend the judgment, Elmore pointed
out that the parties were awaiting the results of the DNA test-
ing being overseen by the district court, and he provided
notice of a June 13, 2007 decision of the state PCR court
denying without prejudice the State’s motion to dismiss his
parallel state Atkins litigation as time-barred. The district
court was not swayed to disturb its judgment, however,
explaining that Elmore could present any exonerating DNA
test results in a second § 2254 petition, and that the state PCR
court might yet enforce a statute of limitations bar on his
Atkins claim. Thereafter, on October 9, 2007, the district court
granted Elmore the certificate of appealability necessary for
this appeal on issues involving all of his live § 2254 claims.
See 28 U.S.C. § 2253(c)(1) (providing that, "[u]nless a circuit
justice or judge issues a certificate of appealability, an appeal
may not be taken to the court of appeals from" "the final order
in a habeas corpus proceeding in which the detention com-
plained of arises out of process issued by a State court").39
B.
As earlier explained, the first oral argument in this appeal,
conducted on March 21, 2008, primarily focused on the stay
issue, i.e., whether the district court should have stayed its
proceedings and, alternatively, whether we should stay this
appeal pending the exhaustion of Elmore’s Atkins claim in the
39
The district court’s October 9, 2007 order granting the certificate of
appealability is found at J.A. 4970.
120 ELMORE v. OZMINT
South Carolina courts. During the argument, the parties
informed us that the parallel state Atkins litigation was ongo-
ing in the state PCR court, and that a recent examination of
Elmore by the South Carolina Department of Disabilities and
Special Needs — performed at the request of the State — had
confirmed that he is mentally retarded as defined by South
Carolina law. Nonetheless, the Respondents continued to sug-
gest that the Eighth Amendment could not save Elmore from
execution, and that there was no justification for staying these
federal proceedings, because Elmore’s lawyers had inexcus-
ably raised his Atkins claim too late.
By our order of March 24, 2008, we recognized that, subse-
quent to the district court’s judgment against Elmore, addi-
tional significant factual development had occurred in the
state PCR court concerning his Atkins claim. We also
observed that the state PCR court had taken steps toward an
expeditious disposition of the Atkins claim, which disposition
would likely involve the resolution of novel state law ques-
tions and impact this appeal. In light of the circumstances, and
in the interests of federalism and comity, we stayed the appeal
pending final disposition of the state Atkins litigation.
Thereafter, by its order of February 1, 2010 (the "Atkins
Order"), the state PCR court ruled that Elmore fits South Car-
olina’s definition of being mentally retarded and, thus, is cate-
gorically excluded by the Eighth Amendment from execution
under Atkins and Franklin v. Maynard, 588 S.E.2d 604 (S.C.
2003) (post-Atkins decision of Supreme Court of South Caro-
lina defining mental retardation and establishing procedures
for making mental retardation determinations). Among the
state PCR court’s findings were that Elmore "has significantly
subaverage intellectual functioning." Atkins Order 12. Indeed,
as the court recognized, "all intellectual and academic testing
over the course of [Elmore’s] life" resulted in scores that con-
sistently placed him "within the mental retardation range." Id.The state PCR court observed that "[i]t took [Elmore] five
years to move beyond the first two grade levels," and he "fi-
ELMORE v. OZMINT 121
nally gave up and quit school in the fifth grade at the age of
thirteen, though he did give eighth grade a two week try
before he floundered and dropped out for good at the age of
fifteen." Atkins Order 14 (emphasis omitted). Elmore’s jobs
were always "in the capacity as an unskilled laborer," and he
"had difficulty with practical tasks such as balancing a check-
book," "do[ing] simple conversions such as inches to feet,"
and "us[ing] a phone book." Id. at 14-15, 19. Elmore "never
lived independently" or "paid bills," though he "would give
money [for household expenses] to his mother and his girl-
friend," with whom he alternately resided. Id. at 17 (internal
quotation marks omitted). Elmore’s "on again, off again rela-
tionship" with his girlfriend (Mary Alice Dunlap) "was more
like a mother-child relationship, in the day-to-day aspects of
it." Id. at 19. Moreover, Elmore deferred to his employers to
set his pay, and failed to safeguard his own health and safety
by, for example, wearing protective gear and taking medica-
tion for hypertension. See id. at 17-18 (relating Elmore’s
account of being told by one employer, after falling from an
unstable ladder, that "at least Mr. Elmore was at the right
building" (internal quotation marks omitted)). Elmore "is
unable to entertain abstract concepts, no matter how elemen-
tary," and he is no "more skilled at self-care than . . . a seven
year old child who [is] able to dress and clean himself without
help." Id. at 16, 20 (internal quotation marks omitted).
According to the state PCR court, Elmore "is universally
described as a pleasant person with a compliant manner," but
"his social skills are widely reported to be simple and superfi-
cial." Atkins Order 19. Although Elmore’s "verbal skills are,
[relatively] speaking, [his] strong suit," his "ability to commu-
nicate is not all that it appears to be." Id. at 15-16. Rather,
Elmore’s verbal skills are "the product of [a lifelong] experi-
ence coping with his difficulties and learning how to ‘pass’"
— that is, "go[ing] to great lengths to ‘pass’ as normal" in
order to avoid "the stigma of being adjudged mentally
retarded." Id. at 16 & n.6 (internal quotation marks omitted).
122 ELMORE v. OZMINT
In ruling that Elmore is mentally retarded and favorably
disposing of his Atkins claim, the state PCR court did not re-
examine Elmore’s other constitutional claims (including the
Strickland, Brady, and Giglio/Napue claims), nor mention its
earlier denial without prejudice of the State’s motion to dis-
miss the Atkins claim as time-barred. On March 10, 2010, the
Respondents notified us of the state PCR court’s Atkins Order
and advised that it would not be further contested. See Elmore
v. Ozmint, No. 07-14 (4th Cir. Mar. 10, 2010) (Respondents’
status report enclosing copy of Atkins Order). The Respon-
dents explained that, "[a]lthough an appeal may have been
appropriate to address [the state PCR court’s] earlier deferred
conclusions about the applicability of the statute of limitations
. . . , the state has chosen to forego [that issue] at this time in
this case, in light of the court’s [unassailable] mental retarda-
tion findings." Id. at 2.
Accordingly, we lifted our stay of this appeal by order of
March 11, 2010. The parties’ subsequent briefs and our Sep-
tember 22, 2010 oral argument focused on the issues remain-
ing before us, including those involving Elmore’s Sixth
Amendment ineffective assistance claim (relying on Strick-
land) and his Fourteenth Amendment due process claim
(invoking Brady and Giglio/Napue).
VII.
At last turning to our assessment of this appeal, we begin
by outlining the applicable standard of review. First of all, we
review de novo the district court’s denial of habeas corpus
relief to Elmore on the basis of the state court record. See
Tucker v. Ozmint, 350 F.3d 433, 438 (4th Cir. 2003). In so
doing, however, the Antiterrorism and Effective Death Pen-
alty Act of 1996 ("AEDPA") mandates that we accord defer-
ence to the state court decisions adjudicating Elmore’s claims
on the merits, i.e., the First PCR Order and the Second PCR
Order. See 28 U.S.C. § 2254(d); see also Woodford v. Visci-
otti, 537 U.S. 19, 24 (2002) (per curiam) (observing that
ELMORE v. OZMINT 123
§ 2254(d) contains a "highly deferential standard for evaluat-
ing state-court rulings" that "demands that state-court deci-
sions be given the benefit of the doubt" (internal quotation
marks omitted)). Under AEDPA, we may deem Elmore to be
entitled to relief only if the state PCR court’s adjudication of
his claims "resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States," § 2254(d)(1), or if the adjudication "resulted
in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding," § 2254(d)(2).
By its plain terms, § 2254(d)(2) limits our review to the
evidence placed before the state PCR court. See Cullen v. Pin-
holster, 131 S. Ct. 1388, 1400 n.7 (2011). Section 2254(d)(2)
is one of two AEDPA provisions governing review of state
court factual findings. The other such provision is
§ 2254(e)(1), which provides that "a determination of a fac-
tual issue made by a State court shall be presumed to be cor-
rect," and that the petitioner "shall have the burden of
rebutting the presumption of correctness by clear and con-
vincing evidence." The Supreme Court has not decided
whether § 2254(e)(1) — an "arguably more deferential stan-
dard" than § 2254(d)(2) — "applies in every case" involving
§ 2254(d)(2) review. Wood v. Allen, 130 S. Ct. 841, 849
(2010) (explaining that, although the Court had "granted cer-
tiorari to resolve the question of how §§ 2254(d)(2) and (e)(1)
fit together," it was not necessary to reach that issue because
the challenged state court finding was reasonable under
§ 2254(d)(2)). As our Court has interpreted the two provi-
sions, the § 2254(e)(1) standard has a place in § 2254(d)(2)
review: We consider whether the state PCR court based its
decisions "on an objectively unreasonable factual determina-
tion in view of the evidence before it, bearing in mind that
factual determinations by state courts are presumed correct
absent clear and convincing evidence to the contrary." Baum
v. Rushton, 572 F.3d 198, 210 (4th Cir. 2009) (internal quota-
124 ELMORE v. OZMINT
tion marks omitted). We must be "especially" deferential to
the state PCR court’s findings on witness credibility, Sharpe
v. Bell, 593 F.3d 372, 378 (4th Cir. 2010), and we will not
overturn the court’s credibility judgments unless its error is
"stark and clear," Cagle v. Branker, 520 F.3d 320, 324 (4th
Cir. 2008).
Like our § 2254(d)(2) review, and in accordance with
recent Supreme Court instructions, our § 2254(d)(1) review is
generally confined to the record that was before the state PCR
court. See Cullen, 131 S. Ct. at 1398 (concluding that,
because the "backward-looking language [of § 2254(d)(1)]
requires an examination of the state-court decision at the time
it was made[,] the record under review is limited to the record
in existence at that same time"). Moreover, "clearly estab-
lished Federal law" under § 2254(d)(1) is the governing legal
principle or principles set forth by the Supreme Court at the
time the state PCR court rendered the relevant decisions. See
Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Under the
"contrary to" clause of § 2254(d)(1), Elmore may be entitled
to habeas corpus relief if the state PCR court arrived at a con-
clusion opposite to that reached by the Supreme Court on a
question of law, or if the state PCR court decided the case dif-
ferently than the Supreme Court has on a set of materially
indistinguishable facts. See Williams v. Taylor, 529 U.S. 362,
413 (2000). By contrast, under the "unreasonable application"
clause, Elmore may merit relief if the state PCR court identi-
fied the correct governing legal principles from the Supreme
Court’s decisions but unreasonably applied those principles to
the facts of Elmore’s case. See id.40
40
Even if we conclude under § 2254(d) that the state PCR court erred,
habeas corpus relief can be granted to Elmore only if the error had a "sub-
stantial and injurious effect or influence in determining the jury’s verdict."
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation
marks omitted). Significantly, however, it is unnecessary to conduct a
Brecht harmlessness analysis on a Strickland or Brady claim that already
has withstood the more onerous test for prejudice (Strickland) or material-
ity (Brady). See Kyles v. Whitley, 514 U.S. 419, 436 & n.9 (1995).
ELMORE v. OZMINT 125
VIII.
Despite the highly deferential AEDPA standard, we con-
clude that Elmore is entitled to habeas corpus relief under 28
U.S.C. § 2254 on his Sixth Amendment Strickland claim.
Simply put, the gross failure of Elmore’s 1984 trial lawyers
to investigate the State’s forensic evidence — including the
medical examiner’s time-of-death opinion, the pubic hairs
allegedly recovered from Mrs. Edwards’s bed, the nature of
the "Item T" materials removed from Mrs. Edwards’s bloody
abdomen, and the fingerprint lifted from the blood-smeared
toilet in Mrs. Edwards’s en suite bathroom — had a palpably
adverse effect on the defense.41
41
Although we do not resolve Elmore’s Fourteenth Amendment due
process claim, see supra note 1, we recognize that such claim encom-
passes at least one strong contention: that Item T was suppressed by the
State in contravention of Brady. The Respondents have conceded that Item
T was suppressed, in that SLED’s Earl Wells "mistakenly reported" its
contents as being solely blue fibers and then held the Item T slides in his
office for nearly seventeen years. Additionally, the Respondents have
acknowledged that Item T is favorable to Elmore. The Respondents main-
tain, however, that the state PCR court reasonably concluded that Item T
— particularly the unmatched Caucasian hair contained therein — was not
material to Elmore’s 1984 convictions.
We are not convinced, however, that the state PCR court’s materiality
analysis can withstand even deferential AEDPA review. The court tersely
dismissed Item T’s unmatched Caucasian hair as "[o]ne hair from the vic-
tim’s body from the bedroom floor that could have come from various
sources." Second PCR Order 5. In so doing, the court did not, for example,
confront evidence undermining the theory that Mrs. Edwards could have
easily picked up a random hair from her bedroom floor, see, e.g., J.A. 83
(1982 trial testimony of SLED’s Frank Dan DeFreese that Mrs. Edwards,
who resided alone, "was a very meticulous housekeeper"), nor did the
court consider how the misidentification of Item T’s contents might have
cast doubt on the competence and honesty of Wells and his fellow SLED
agents.
Elmore’s other Fourteenth Amendment contentions, though hardly friv-
olous, run headlong into the state PCR court’s credibility findings. That
is, invoking Giglio and Napue, Elmore asserts that the State knowingly
126 ELMORE v. OZMINT
A.
In ruling in Elmore’s favor on his Strickland claim, we
assume that Cullen v. Pinholster precludes our consideration
of evidence developed subsequent to the First PCR Order and
the Second PCR Order, including later-developed evidence
that the parties have urged us to take into account. See 131 S.
Ct. 1388, 1398, 1400 n.7 (2011) (recognizing that 28 U.S.C.
§ 2254(d)(1) and (2) review is limited to the existing state
court record). But see, e.g., Hale v. Davis, No. 07-12397,
2011 WL 3163375, at *8 (E.D. Mich. July 27, 2011) (observ-
ing that "the full implications of Cullen are unclear").42
For his part, Elmore contends that we should view his
Strickland and other pending claims through the lens of the
state PCR court’s mental retardation finding, even though the
court considered Elmore’s mental retardation solely in the
context of his later-asserted Eighth Amendment Atkins claim.
For example, Elmore maintains that, "[e]ven if counsel could
ground their inaction on communications from the client in
the ordinary case, . . . such a justification evaporates when the
defendant is mentally retarded." Br. of Appellant 56. "Thus,"
according to Elmore, "not only can [his] communications not
be invoked to excuse counsel’s anemic advocacy, the fact that
counsel relied at all on the communications of a retarded cli-
ent actually provides yet another affirmative reason there can
be no confidence in the reliability of [his] conviction[s]." Id.
at 57-58.
presented false testimony concerning the pubic hairs, the toilet print, and
his purported jailhouse confession to fellow inmate James Gilliam. The
State’s witnesses flatly denied any wrongdoing, however, and it would be
difficult to say that the state PCR court acted unreasonably or committed
stark and clear error in finding those denials credible.
42
Because Cullen was decided after the last round of briefing and oral
argument herein, the parties have not addressed its import.
ELMORE v. OZMINT 127
Meanwhile, the Respondents have emphasized the results
of the additional DNA testing that had been agreed to during
the state PCR proceedings and overseen by the district court
— results that neither the South Carolina courts nor the dis-
trict court awaited. According to the Respondents, the DNA
test results indicate that "a significant number of hairs" alleg-
edly found on Mrs. Edwards’s bed fully or partially match
Elmore, and "blood stained cuttings from" Elmore’s pants and
shoe fully or partially match Mrs. Edwards. Br. of Appellees
1 (citing J.A. 4958-59).43 The Respondents assert that,
although the DNA testing "was neither done nor available at
the 1982, 1984 or 1987 trials nor the initial PCR proceed-
ings[,] it conclusively confirms and corroborates the state’s
prosecution theory and evidence of Mr. Elmore’s guilt and
involvement in Dorothy Edwards’ brutal death." Id.Elmore, who had previously conceded that the hairs are his,
points out that the DNA test results are entirely consistent
with his long-standing position that the SLED agents lied
about finding the hairs on Mrs. Edwards’s bed and planted the
blood on his pants and shoe. See Br. of Appellant 32 n.7 ("As
it is Elmore’s contention that his pubic hairs were taken from
him and immediately placed in evidence as if they had been
recovered from the [crime] scene, it should come as no sur-
prise that DNA testing confirms that the hairs in the bag the
State claims was recovered from the crime scene are, in fact,
Elmore’s."); id. at 23 ("Not surprisingly, given the inconsis-
tencies of the spots [of blood] with the nature of the crime
scene, the highly suspicious chain of custody on [the pants
and shoe], and the highly irregular manner in which the other
evidence in this case was collected, the blood on the clothing
was found to contain the victim’s DNA."). Elmore also high-
lights that "[t]he validity of the DNA testing has never been
subjected to the adversarial process." Reply Br. of Appellant
1. "In sum," according to Elmore, "the DNA evidence
43
The DNA testing of scrapings from beneath Mrs. Edwards’s finger-
nails apparently resulted in a match to Mrs. Edwards. See J.A. 4959.
128 ELMORE v. OZMINT
Respondents attempt to now interject into this case does noth-
ing to offset the unreliability of the forensic evidence" used
to obtain Elmore’s 1984 convictions. Id. at 3.
Even if Cullen left us free to consider the mental retarda-
tion finding and the DNA test results, none of that evidence
would alter our view of Elmore’s Strickland claim. The 1984
defense team’s failure to investigate the State’s forensic evi-
dence has not been (and cannot be) blamed on Elmore him-
self, see infra note 48, and those lawyers’ constitutionally
deficient performance is patent even without taking Elmore’s
mental retardation into account. Moreover, the recent DNA
test results, heralded by the State as definitive proof of
Elmore’s guilt despite the lack of any court determination of
their reliability, are consistent with Elmore’s position that the
SLED agents falsely testified about finding his pubic hairs on
Mrs. Edwards’s bed and planted Mrs. Edwards’s blood on his
clothing. Thus, we are content to look to the record solely as
it existed at the time of the First PCR Order and the Second
PCR Order.
B.
The record before us reflects that Elmore’s 1984 trial was
essentially a replay of his 1982 trial. In the words of the state
PCR court, the State presented "overwhelming evidence . . .
that solely pointed to the guilt of Edward Elmore," leaving the
jury no choice but "to convict." First PCR Order 119-20. The
State’s evidence primarily consisted of the following: Elmore
knew Mrs. Edwards, having been hired by her on several
occasions, the latest being December 30, 1981, to wash the
windows and clean the gutters of her home; the crime scene
suggested that Mrs. Edwards was murdered on the night of
Saturday, January 16, 1982, a time of death that was deemed
feasible by the medical examiner; Elmore lacked a corrobo-
rated alibi for more than two hours that Saturday night;
Elmore’s thumbprint was found on the exterior frame of the
back door into Mrs. Edwards’s house, apparently where the
ELMORE v. OZMINT 129
murderer entered the premises; forty-five pubic hairs consis-
tent with Elmore were recovered from Mrs. Edwards’s bed;
Type A blood (the type Mrs. Edwards shared with about 40-
45% of the population) was found on Elmore’s pants and
shoe; Elmore evinced a lack of credibility and a guilty con-
science by, inter alia, initially denying at the time of his arrest
that he knew Mrs. Edwards and thereafter telling the police
that, if he killed Mrs. Edwards, he did not remember doing so;
and Elmore spontaneously confessed to fellow Greenwood
jail inmate James Gilliam that he had raped and murdered
Mrs. Edwards and eradicated physical evidence of his crimes.
Elmore proclaimed his innocence to his lawyers for the
1982 and 1984 trials, Geddes D. Anderson and John F. Beas-
ley, who therefore did not believe Gilliam’s account of
Elmore’s jailhouse confession and endeavored to discredit
Gilliam. Nevertheless, Anderson and Beasley did not other-
wise mistrust the State’s case against Elmore. See, e.g., J.A.
2481 (PCR testimony of lead counsel Anderson allowing that
the State had "ample evidence" against Elmore). The bulk of
Anderson’s trial preparation occurred during the ten-day peri-
ods prior to Elmore’s 1982 and 1984 trials, when Anderson
was also working on other cases. Anderson interviewed
Elmore, Elmore’s mother, and perhaps Elmore’s former girl-
friend and other witnesses, but definitely did not interview the
person who reportedly found the body of Mrs. Edwards, her
neighbor Jimmy Holloway.
The defense team conducted no independent analyses of the
State’s forensic evidence. Anderson waited until the eve of
the 1982 trial to look at any of the physical evidence, and then
— inexplicably — asked to see only the exhibits that the State
intended to introduce. He did not suspect any irregularities in
the evidence’s chain of custody and thus stipulated thereto.
Both Anderson and Beasley admitted to being lulled into
inaction by the belief that the police were above reproach. See
J.A. 2424 (Anderson’s PCR testimony that "I think I probably
just stood by my opinion that I have respect for the SLED
130 ELMORE v. OZMINT
team, and they’re the best we have in South Carolina, and I
assumed they were not going to contaminate the evidence");
id. at 2581 (Beasley’s PCR testimony that "I had full confi-
dence in the law enforcement officers. I knew them all. I had
never had any occasion where any law official ever tried to
pull anything over on me, and I had no reason to suspect any-
thing being wrong"). At most, the defense team gave fleeting
thought to hiring experts to examine the evidence. Anderson
blamed scarce state resources, but his testimony indicated that
he and Beasley never isolated evidence deserving further
examination, identified appropriate experts and ascertained
their fees, or inquired about state and other possible sources
of funding.
Once Elmore’s 1982 convictions were reversed by the state
supreme court, Anderson and Beasley had a rare second
chance to contest the State’s case — along with near-perfect
knowledge of what that case would be. Yet, as Anderson con-
ceded, he looked no further at the physical evidence in prepa-
ration for the 1984 trial and again blindly stipulated to its
admissibility. Anderson also acknowledged that he saw the
guilt phase as a lost cause. Focusing instead on the expected
sentencing phase, Anderson conducted just one new investi-
gation, into the subject of Elmore’s adaptability to prison life.
During the guilt phase of the 1984 trial, the defense team’s
cross-examination of the State’s witnesses was largely per-
functory. After medical examiner Dr. Sandra Conradi identi-
fied a sixty-hour window in which Mrs. Edwards could have
died (based on the autopsy), but pinpointed a likely Saturday
night death (premised on non-scientific circumstantial evi-
dence), the defense merely elicited from Dr. Conradi that the
scientific indicators of time of death "are very variable." J.A.
653. The defense got SLED’s Frank Dan DeFreese to agree
that Elmore’s thumbprint, though "fresh"-appearing, "could
have been [on the exterior door frame] a month." Id. at 579.
The cross-examination of SLED’s Earl Wells clarified only
that the "high degree of probability" of a match between
ELMORE v. OZMINT 131
Elmore and the forty-five pubic hairs allegedly found on Mrs.
Edwards’s bed was something short of "100 percent." Id. at
624. And, the defense led SLED’s John C. Barron to concede
that it was impossible to determine the age of the blood on
Elmore’s clothing. There was no cross-examination of Hol-
loway, who testified to finding Mrs. Edwards’s body and dis-
cerning much of the circumstantial evidence of a Saturday
night death, or of SLED’s Ira Byrd Parnell, Jr., who claimed
that he recovered the incriminating hairs from Mrs. Edwards’s
bed.
In their closing arguments on Elmore’s behalf, his lawyers
underscored that there was a possibility, however slim, that
the forensic evidence was incorrectly implicating Elmore.
See, e.g., J.A. 949 (Anderson’s argument that "[t]here was
never any expert testimony from individuals from SLED that
pinpointed Edward Lee Elmore as the wrongdoer in this case.
. . . The most I heard was high probability, a high degree of
probability"). The lawyers also pointed out a few gaps in the
State’s case, including the lack of inculpatory evidence in
Elmore’s car; the existence of evidence contradicting the the-
ory of his guilty conscience (e.g., his entirely voluntary
encounter with the police just prior to his arrest); and the
inconsistency between Elmore’s alleged eradication of evi-
dence inside the Edwards home, but failure to destroy evi-
dence outside the home (i.e., his thumbprint on the exterior
door frame and the unwashed clothing left at his own resi-
dence).
Ultimately, however, Anderson conceded that he was ill-
equipped to challenge the police investigators. See J.A. 955
(Anderson’s admission to the jury that, "[m]an, they’re
trained. They’re ready for me. They’ve been here every day.
They’re ready for me. Loaded for bear. I stayed away from
them. I can’t cross-examine them. Nobody can"). Beasley
effectively abandoned his client and actually vouched for
those investigators, advising the jury: "I think at SLED they
are recognized as being one of the best departments or proba-
132 ELMORE v. OZMINT
bly as good as the F.B.I. They have a very fine department,
and they have very good personnel, and they are experts at
everything they do." Id. at 913. Not surprisingly, it merely
took the jury about two hours to agree on the guilty verdict.
After all, as the state PCR court recognized, conviction was
the jury’s only rational option in view of the State’s evidence
and Elmore’s ineffectual defense.
Of course, it is now clear from the PCR proceedings that
an investigation into the State’s evidence would have exposed
a multitude of questions about its legitimacy and reliability.
For example, Elmore presented behavioral profiling evidence
tending both to exculpate him and to cast suspicion on Hol-
loway (and, by extension, the circumstantial evidence of a
Saturday night death). The medical examiner testimony of Dr.
Conradi and Elmore’s expert Dr. Jonathan Arden revealed
that, within the scientific time-of-death range identified by Dr.
Conradi at trial, a Sunday afternoon death was much more
likely than a Saturday night one. Those medical examiners
disagreed only on the degree of probability of a Saturday
night death. Dr. Arden deemed it "extraordinarily unlikely
and improbable really in the extreme," while Dr. Conradi sug-
gested a higher probability but conceded that Saturday night
was close to the "outside limit" of the possible range. See J.A.
2252, 2721.
Elmore also presented PCR evidence calling into question
the SLED agents’ previously unchallenged account of recov-
ering Elmore’s forty-five pubic hairs from Mrs. Edwards’s
bed. That is, the agents failed to take a single photograph of
the hairs on the bed, to collect the bedcovers and sheets for
further forensic analysis, or to package the hairs like other
physical evidence taken from the crime scene; despite the
State’s theory that an already-bloodied Mrs. Edwards pulled
the hairs from Elmore as he raped her on the bed, there was
no blood or semen on the bedcovers or sheets; the number of
Elmore’s pubic hairs was exceptionally large; Elmore sus-
tained no apparent groin injury or bruising; and none of
ELMORE v. OZMINT 133
Elmore’s pubic hairs were found on Mrs. Edwards’s body or
elsewhere in the house. Meanwhile, Elmore demonstrated that
the Item T Caucasian hairs removed from Mrs. Edwards’s
bloody abdomen during her autopsy — including one hair that
DNA testing has confirmed was not hers — were falsely
reported by SLED as being blue fibers and then concealed in
a SLED office for nearly seventeen years. Similarly, Elmore
established that the SLED team misreported at least one fin-
gerprint as being unidentifiable, and may have so misreported
a print lifted from the blood-smeared toilet in Mrs. Edwards’s
en suite bathroom. Additionally, Elmore proffered evidence
that the scant amount of blood on his clothing was inconsis-
tent with the gruesome crime scene, and he produced a SLED
laboratory record suggesting that his clothing was exposed to
pre-analysis tampering.
In the face of the foregoing record, the state PCR court
rejected Elmore’s multi-faceted Sixth Amendment ineffective
assistance of counsel claim, which was premised on the lack
of investigation into the State’s forensic evidence, along with
other errors by his trial lawyers. Elmore has since more nar-
rowly formulated his ineffective assistance claim to focus
solely on the lawyers’ failure to investigate the forensic evi-
dence, particularly Dr. Conradi’s time-of-death opinion, the
forty-five pubic hairs allegedly found on Mrs. Edwards’s bed,
the contents of Item T, and the fingerprints lifted from the
crime scene.
C.
The "clearly established Federal law" governing the state
PCR court’s assessment of Elmore’s Sixth Amendment inef-
fective assistance claim was Strickland v. Washington, 466
U.S. 668 (1984). Importantly, the state PCR court recognized
the controlling force of Strickland on Elmore’s ineffective
assistance claim, explaining that "the [Strickland] court estab-
lished as a constitutional standard a two-prong test to deter-
mine ineffectiveness; was counsel’s performance deficient;
134 ELMORE v. OZMINT
and second, if so, whether there is a reasonable probability
that but for counsel’s deficient performance, the result of the
proceeding would have been different." First PCR Order 5.
Our review of the First PCR Order and the Second PCR
Order, however, leads to the ineluctable conclusion that the
state PCR court both unreasonably applied and acted contrary
to Strickland in resolving Elmore’s ineffective assistance
claim. That is, although the state PCR court correctly identi-
fied certain Strickland principles, the court unreasonably
applied those tenets to the facts before it. See Williams v. Tay-
lor, 529 U.S. 362, 413 (2000) (recognizing that, under
§ 2254(d)(1)’s "unreasonable application" clause, "a federal
habeas court may grant the writ if the state court identifies the
correct governing legal principle from this Court’s decisions
but unreasonably applies that principle to the facts of the pris-
oner’s case"). The state PCR court defied other Strickland
principles — both acknowledged and unacknowledged by the
court — freeing itself to test Elmore’s ineffective assistance
claim under a legal framework in many ways contrary to that
mandated by Strickland. See Williams, 529 U.S. at 413(observing that, under the "contrary to" clause of
§ 2254(d)(1), "a federal habeas court may grant the writ if,"
inter alia, "the state court arrives at a conclusion opposite to
that reached by this Court on a question of law"). At bottom,
the state PCR court’s adjudication of Elmore’s ineffective
assistance claim "was so lacking in justification that there was
. . . error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement." See
Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).44
44
To illustrate the proper application of Strickland principles, we cite
herein to decisions of the Supreme Court and our Court rendered in Strick-
land’s wake, including some issued after the First PCR Order and the Sec-
ond PCR Order. See Wiggins v. Smith, 539 U.S. 510, 522 (2003)
(recognizing that a federal habeas court may rely on decisions, unseen by
the state court under review, "appl[ying] the same ‘clearly established’
precedent of Strickland"). Nonetheless, we recognize that "‘the Strickland
test of necessity requires a case-by-case examination of the evidence’" and
look to other precedents only "for guidance." Cullen, 131 S. Ct. at 1407
n.17 (quoting Williams, 529 U.S. at 391).
ELMORE v. OZMINT 135
1.
In Strickland, the Supreme Court instructed that "[t]he
benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper func-
tioning of the adversarial process that the trial cannot be relied
on as having produced a just result." Strickland, 466 U.S. at
686. The Court also announced its two-prong test to analyze
ineffective assistance claims, encompassing performance and
prejudice. See id. at 687.
To satisfy the performance prong of Strickland, "the defen-
dant must show that counsel’s representation fell below an
objective standard of reasonableness." 466 U.S. at 688. In so
doing, the defendant "must identify the acts or omissions of
counsel that are alleged not to have been the result of reason-
able professional judgment." Id. at 690. For its part, the court
deciding the "ineffectiveness claim must judge the reason-
ableness of counsel’s challenged conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct."
Id. That is, the court must "determine whether, in light of all
the circumstances, the identified acts or omissions were out-
side the wide range of professionally competent assistance."
Id. "In making that determination, the court should keep in
mind that counsel’s function, as elaborated in prevailing pro-
fessional norms, is to make the adversarial testing process
work in the particular case." Id. Nevertheless, the court also
"should recognize that counsel is strongly presumed to have
rendered adequate assistance and made all significant deci-
sions in the exercise of reasonable professional judgment." Id.Significantly, the Strickland Court recognized that "counsel
has a duty to make reasonable investigations or to make a rea-
sonable decision that makes particular investigations unneces-
sary." 466 U.S. at 691. "In any ineffectiveness case, a
particular decision not to investigate must be directly assessed
for reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments." Id. "[S]trategic
136 ELMORE v. OZMINT
choices made after less than complete investigation are rea-
sonable precisely to the extent that reasonable professional
judgments support the limitations on investigation," but "stra-
tegic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallenge-
able." Id. at 690-91.
Under Strickland, "[t]he reasonableness of counsel’s
actions may be determined or substantially influenced by the
defendant’s own statements or actions." 466 U.S. at 691. With
particular respect to the duty to investigate,
what investigation decisions are reasonable depends
critically on [information supplied by the defendant].
For example, when the facts that support a certain
potential line of defense are generally known to
counsel because of what the defendant has said, the
need for further investigation may be considerably
diminished or eliminated altogether. And when a
defendant has given counsel reason to believe that
pursuing certain investigations would be fruitless or
even harmful, counsel’s failure to pursue those
investigations may not later be challenged as unrea-
sonable.
Id. Thus, "inquiry into counsel’s conversations with the
defendant may be critical to a proper assessment of counsel’s
investigation decisions, just as it may be critical to a proper
assessment of counsel’s other litigation decisions." Id.Turning to Strickland’s prejudice prong, "[t]he defendant
must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different." 466 U.S. at 694. As defined by
the Court, "[a] reasonable probability is a probability suffi-
cient to undermine confidence in the outcome." Id. "When a
defendant challenges a conviction, the question is whether
there is a reasonable probability that, absent [counsel’s]
ELMORE v. OZMINT 137
errors, the factfinder would have had a reasonable doubt
respecting guilt." Id. at 695. Making this determination
requires the court deciding the ineffectiveness claim to
consider the totality of the evidence before the judge
or jury. Some of the factual findings will have been
unaffected by the errors, and factual findings that
were affected will have been affected in different
ways. Some errors will have had a pervasive effect
on the inferences to be drawn from the evidence,
altering the entire evidentiary picture, and some will
have had an isolated, trivial effect. Moreover, a ver-
dict or conclusion only weakly supported by the
record is more likely to have been affected by errors
than one with overwhelming record support.
Id. at 695-96. In sum, "[t]aking the unaffected findings as a
given, and taking due account of the effect of the errors on the
remaining findings, a court making the prejudice inquiry must
ask if the defendant has met the burden of showing that the
decision reached would reasonably likely have been different
absent the errors." Id. at 696.
2.
a.
i.
Specific to Strickland’s performance prong, the state PCR
court recognized the Strickland principle that "counsel has a
duty to make reasonable investigations or to make a reason-
able decision that makes particular investigations unneces-
sary." 466 U.S. at 691; see First PCR Order 149 ("‘[T]he
Sixth Amendment imposes on counsel a duty to investigate,
because reasonably effective assistance must be based on pro-
fessional decisions and informed legal choices can be made
only after investigation of options.’" (quoting Strickland, 466
138 ELMORE v. OZMINT
U.S. at 680 (discussing Eleventh Circuit’s Strickland decision
then before it))). Furthermore, the state PCR court empha-
sized its Strickland obligation to "‘judge the reasonableness of
counsel’s challenged conduct on the facts of the particular
case, viewed as of the time of counsel’s conduct.’" First PCR
Order 147 (emphasis in original) (quoting Strickland, 466
U.S. at 690). In that regard, the state PCR court cautioned:
When the court considers [Strickland’s performance]
prong, it must do so without falling into the trap of
considering the actions only in hindsight. Whether
counsel made an error is a question which can be
answered only viewing his actions or decisions in the
light of all surrounding circumstances at the time the
decision was made, not in the artificial light of hind-
sight.
Id.; accord Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)
(explaining that Strickland "adopted the rule of contemporary
assessment of counsel’s conduct").
Nevertheless, with little discussion of facts relevant to the
proper contemporary assessment of the conduct of Elmore’s
trial lawyers, the state PCR court found that their failure to
investigate the State’s forensic evidence constituted objec-
tively reasonable attorney performance. Most pertinently, the
court recited lawyer Anderson’s testimony that "‘I think I
probably stood by my opinion that I have respect for the
SLED team, . . . they’re the best we have in South Carolina,
and I assumed they were not going to contaminate the evi-
dence.’" First PCR Order 28 (alteration in original) (citation
omitted). In so doing, the court advanced the notion that no
investigation of the forensic evidence was necessary, because
the defense lawyers reasonably trusted in not only the integ-
rity, but the infallibility, of the police.
As a matter of logical consistency, such notion conflicts
with the state PCR court’s own observation (made in the
ELMORE v. OZMINT 139
course of chastising Elmore for asserting his fingerprint-
related claims) that "experts may disagree as to results." First
PCR Order 78. Much more significantly, such notion is
abhorrent to Strickland, which was designed to protect the
Sixth Amendment right to "a reliable adversarial testing pro-
cess." See 466 U.S. at 688; see also Evitts v. Lucey, 469 U.S.
387, 395 (1985) ("Because the right to counsel is so funda-
mental to a fair trial, the Constitution cannot tolerate trials in
which counsel, though present in name, is unable to assist the
defendant to obtain a fair decision on the merits."); Nix v. Wil-
liams, 467 U.S. 431, 453 (1984) (Stevens, J., concurring in
the judgment) ("The Sixth Amendment guarantees that the
conviction of the accused will be the product of an adversarial
process, rather than the ex parte investigation and determina-
tion by the prosecutor."); United States v. Cronic, 466 U.S.
648, 656 (1984) ("The right to the effective assistance of
counsel is thus the right of the accused to require the prosecu-
tion’s case to survive the crucible of meaningful adversarial
testing."). A healthy skepticism of authority, while generally
advisable, is an absolute necessity for a lawyer representing
a client charged with capital murder. After all, the custodians
of authority in our democracy are ordinary people with imper-
fect skills and human motivations. The duty of the defense
lawyer "is to make the adversarial testing process work in the
particular case," Strickland, 466 U.S. at 690 — an obligation
that cannot be shirked because of the lawyer’s unquestioning
confidence in the prosecution.
To be sure, it was thus an unreasonable application of
Strickland to rule that the failure of Elmore’s lawyers to
investigate the State’s forensic evidence was justified by their
faith in the integrity and infallibility of the police. Indeed —
even engaging in a post-AEDPA "doubly deferential" review
of attorney conduct under Strickland’s performance prong,
see Cullen, 131 S. Ct. at 1403 (recognizing that federal habeas
courts must "take a highly deferential look at counsel’s per-
formance through the deferential lens of § 2254(d)" (internal
quotation marks omitted)) — the Supreme Court has found
140 ELMORE v. OZMINT
deficient performance premised on a failure to investigate in
circumstances that were no more egregious than those present
here. See Rompilla v. Beard, 545 U.S. 374, 383-90 (2005);
Wiggins v. Smith, 539 U.S. 510, 519-34 (2003).45
Of particular relevance, in Rompilla, the Court concluded
that the state habeas courts reached "an objectively unreason-
able conclusion" in ruling "that defense counsel’s efforts to
find mitigating evidence by other means excused them from
looking at the prior conviction file." 545 U.S. at 388-89. The
record reflected that — although Rompilla’s lawyers made "a
number of efforts" to find mitigating evidence, "including
interviews with Rompilla and some members of his family,
and examinations of reports by three mental health experts"
— the lawyers did not examine Rompilla’s readily available
prior conviction file despite knowing the prosecution would
use it in aggravation. Id. at 381, 383. In expounding on why
the lawyers’ deficiency was "clear" and "obvious," id. at 383,
the Court observed:
It flouts prudence to deny that a defense lawyer
should try to look at a file he knows the prosecution
will cull for aggravating evidence, let alone when the
file is sitting in the trial courthouse, open for the ask-
ing. No reasonable lawyer would forgo examination
of the file thinking he could do as well by asking the
defendant or family relations whether they recalled
anything helpful or damaging in the prior victim’s
testimony. Nor would a reasonable lawyer compare
possible searches for school reports, juvenile
records, and evidence of drinking habits to the
opportunity to take a look at a file disclosing what
the prosecutor knows and even plans to read from in
his case. Questioning a few more family members
and searching for old records can promise less than
45
AEDPA deference was applied in the Rompilla and Wiggins
performance-prong assessments, but not in their prejudice-prong analyses.
ELMORE v. OZMINT 141
looking for a needle in a haystack, when a lawyer
truly has reason to doubt there is any needle there.
But looking at a file the prosecution says it will use
is a sure bet: whatever may be in that file is going
to tell defense counsel something about what the
prosecution can produce.
Id. at 389 (citation omitted). The Court summarized that "[i]t
is owing to these circumstances that the state courts were
objectively unreasonable in concluding that counsel could
reasonably decline to make any effort to review the file." Id.
at 390.46
Similarly (albeit prior to AEDPA), in Kimmelman v. Morri-
son, 477 U.S. 365 (1986), the Supreme Court deemed trial
counsel’s lack of investigation to be deficient under Strick-
land’s performance prong. The Kimmelman defendant (Morri-
46
The Rompilla Court recognized that "[t]he notion that defense counsel
must obtain information that the State has and will use against the defen-
dant is not simply a matter of common sense." 545 U.S. at 387. Rather,
the Court explained,
the American Bar Association Standards for Criminal Justice in
circulation at the time of Rompilla’s trial describes the obligation
in terms no one could misunderstand in the circumstances of a
case like this one:
"It is the duty of the lawyer to conduct a prompt investiga-
tion of the circumstances of the case and to explore all ave-
nues leading to facts relevant to the merits of the case and
the penalty in the event of conviction. The investigation
should always include efforts to secure information in the
possession of the prosecution and law enforcement authori-
ties. The duty to investigate exists regardless of the
accused’s admissions or statements to the lawyer of facts
constituting guilt or the accused’s stated desire to plead
guilty."
Id. (quoting 1 ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982
Supp.)). The Court recognized that those Standards, which existed at the
time of Elmore’s trials, may be used "as guides to determining what is rea-
sonable." Id. (internal quotation marks omitted).
142 ELMORE v. OZMINT
son) was charged with rape, and his lawyer had neglected to
file a timely motion to suppress an incriminating bedsheet
seized without a search warrant. See 477 U.S. at 368-69. The
trial record revealed
that Morrison’s attorney failed to file a timely sup-
pression motion, not due to strategic considerations,
but because, until the first day of trial, he was
unaware of the search and of the State’s intention to
introduce the bedsheet into evidence. Counsel was
unapprised of the search and seizure because he had
conducted no pretrial discovery. Counsel’s failure to
request discovery, again, was not based on "strat-
egy," but on counsel’s mistaken beliefs that the State
was obliged to take the initiative and turn over all of
its inculpatory evidence to the defense and that the
victim’s preferences would determine whether the
State proceeded to trial after an indictment had been
returned.
Id. at 385. Despite "applying a heavy measure of deference to
his judgment," the Court found "counsel’s decision unreason-
able, that is, contrary to prevailing professional norms." Id.(internal quotation marks omitted); see also id. at 394 (Pow-
ell, J., concurring in the judgment) ("Petitioners contend that
trial counsel’s errors were not egregious enough to satisfy Str-
ickland’s performance prong. . . . The Court correctly finds
that [Petitioners’ argument is] mistaken.").
The Kimmelman Court was convinced of deficient perfor-
mance in that Morrison’s "lawyer neither investigated, nor
made a reasonable decision not to investigate, the State’s case
through discovery." 477 U.S. at 385. According to the Court,
"[s]uch a complete lack of pretrial preparation puts at risk
both the defendant’s right to an ‘ample opportunity to meet
the case of the prosecution’ and the reliability of the adver-
sarial testing process." Id. (quoting Strickland, 466 U.S. at
685). Therefore, not even "defense counsel’s vigorous cross-
ELMORE v. OZMINT 143
examination, attempts to discredit witnesses, and effort to
establish a different version of the facts" during trial could
"lift counsel’s performance back into the realm of profes-
sional responsibility." Id. at 385-86. As the Court explained,
[i]n this case, . . . we deal with a total failure to con-
duct pre-trial discovery, and one as to which counsel
offered only implausible explanations. Counsel’s
performance at trial, while generally creditable
enough, suggests no better explanation for this
apparent and pervasive failure to "make reasonable
investigations or to make a reasonable decision that
makes particular investigations unnecessary."
Id. at 386 (quoting Strickland, 466 U.S. at 691).
Lamentably akin to defense counsel in Kimmelman and
Rompilla, Elmore’s lawyers disregarded their professional
obligation to investigate critical prosecution evidence, thereby
engendering "a breakdown in the adversarial process that our
system counts on to produce just results." See Strickland, 466
U.S. at 696. As in Kimmelman and Rompilla, the failure to
investigate cannot be excused by the lawyers’ other efforts
(which, in any event, were meager and superficial). Indeed,
the need for scrutiny of the forensic evidence was indisputa-
ble: The case was a real "who-done-it" in which Elmore was
asserting his innocence, the State’s case against him largely
hinged on the forensic evidence, and, at least as far as
Elmore’s lawyers knew, the prosecutor was maintaining an
open file. Yet Elmore’s lawyers conducted no more examina-
tion of the forensic evidence than to ask a day or two before
the 1982 trial to see the exhibits that the State intended to
introduce. The lawyers did not look behind the State’s pro-
posed exhibits, did not investigate the other (possibly excul-
patory) evidence that the State was bypassing, and did not
conduct an independent analysis of a single item of forensic
evidence in the State’s arsenal.
144 ELMORE v. OZMINT
As obvious as the need for investigation was prior to the
1982 trial, it was more so ahead of the 1984 retrial. Rather
than capitalize on their comprehensive knowledge of the
State’s case, however, Elmore’s lawyers opted for capitula-
tion. So, for example, in the face of Elmore’s corroborated
alibis for Sunday and Monday, his lawyers "condescended
[sic]" to the State’s theory — and the medical examiner’s
opinion — that Mrs. Edwards was murdered on Saturday
night. See J.A. 2416-17 (PCR testimony of lawyer Anderson
admitting same). Despite knowing that the pubic hairs alleg-
edly found on Mrs. Edwards’s bed were by far the State’s
most damning physical evidence, Elmore’s lawyers did noth-
ing to probe the circumstances of the hairs’ discovery. The
lawyers did not even inspect readily accessible SLED records
that would have suggested the possible benefit of further
inquiry into, inter alia, the Item T materials that were removed
from Mrs. Edwards’s bloody abdomen (were they hairs or
fibers?), and the fingerprint lifted from the blood-smeared toi-
let in Mrs. Edwards’s en suite bathroom (was it really uniden-
tifiable?). To paraphrase Rompilla, "[i]t flouts prudence to
deny that a defense lawyer should try to look at [forensic evi-
dence] he knows the prosecution will cull for [inculpatory]
evidence, let alone when the [forensic evidence] is sitting in
the [prosecutor’s office], open for the asking." See 545 U.S.
at 389.47
47
Because Elmore has focused his ineffective assistance claim on the
time-of-death opinion, the pubic hairs, Item T, and the toilet print, we do
the same herein. Nevertheless, the record raises additional concerns with
the State’s forensic evidence that a proper adversarial investigation could
have uncovered. Such concerns relate to, inter alia, Dr. Jonathan Arden’s
opinion that Mrs. Edwards’s vaginal injuries were caused postmortem by
the bottle tongs, the opinions of other experts that the scant amount of
blood found on Elmore’s clothing was inconsistent with the gruesome
crime scene, the SLED record suggesting that Elmore’s clothing was
exposed to pre-blood analysis tampering, and the expert opinion that the
placement of Elmore’s thumbprint on the exterior frame of the back door
into the Edwards home (upside-down and wrapped around the frame) was
consistent with performing chores and inconsistent with knocking at the
door and waiting for an answer.
ELMORE v. OZMINT 145
Notably, the facts of this case distinguish it from Harring-
ton v. Richter, in which the Supreme Court recently rebuffed
the theory that, "because Richter’s attorney had not consulted
forensic blood experts or introduced expert evidence, the
[state habeas court] could not reasonably have concluded
counsel provided adequate representation." 131 S. Ct. at 788.
There, at the trial of Richter and his codefendant for the
attempted murder of one man (Johnson) and the murder of
another (Klein), Richter’s lawyer introduced the theory that
the codefendant had fired on Johnson in self-defense and that
Klein had been killed in the crossfire. See id. at 781-82.
Although "[b]lood evidence [did] not appear to have been part
of the prosecution’s planned case prior to trial," the introduc-
tion of the self-defense theory prompted the prosecution to
put on two unnoticed blood experts to refute Richter’s
account. Id. at 782. Richter’s lawyer’s cross-examination of
those two expert witnesses "probed weaknesses in the[ir] tes-
timony," and the lawyer called seven fact witnesses for the
defense, including Richter and others who "provided some
corroboration for Richter’s story." Id. In the subsequent
habeas proceedings, Richter asserted that his trial counsel was
deficient in failing to present blood experts in support of the
self-defense theory. See id. at 783.
The Richter Court concluded that "[i]t was at least arguable
that a reasonable attorney could decide to forgo inquiry into
the blood evidence in the circumstances here." 131 S. Ct. at
788. The Court observed that "it was far from a necessary
conclusion that [the importance of the blood evidence] was
evident at the time of the trial," and that, "[e]ven if it had been
apparent that expert blood testimony could support Richter’s
defense, it would be reasonable to conclude that a competent
attorney might elect not to use it." Id. at 789. For, the Court
explained,
making a central issue out of blood evidence would
have increased the likelihood of the prosecution’s
producing its own evidence on the blood pool’s ori-
146 ELMORE v. OZMINT
gins and composition; and once matters proceeded
on this course, there was a serious risk that expert
evidence could destroy Richter’s case. Even apart
from this danger, there was the possibility that expert
testimony could shift attention to esoteric matters of
forensic science, distract the jury from whether John-
son was telling the truth, or transform the case into
a battle of the experts.
True, it appears that defense counsel’s opening
statement itself inspired the prosecution to introduce
expert forensic evidence. But the prosecution’s evi-
dence may well have been weakened by the fact that
it was assembled late in the process; and in any event
the prosecution’s response shows merely that the
defense strategy did not work out as well as counsel
had hoped, not that counsel was incompetent.
Id. at 790 (citation omitted). Highlighting the proposition that
"it is difficult to establish ineffective assistance when coun-
sel’s overall performance indicates active and capable advo-
cacy," the Court also recognized that "Richter’s attorney
represented him with vigor and conducted a skillful cross-
examination. [D]efense counsel elicited concessions from the
State’s experts and was able to draw attention to weaknesses
in their conclusions." Id. at 791.
Here, in stark contrast to Richter, forensic evidence was
always and obviously vital to the State’s case, which other-
wise relied on James Gilliam’s account of Elmore’s spontane-
ous jailhouse confession and Elmore’s guilty demeanor and
lack of a corroborated alibi for Saturday night. As such, the
defense did not risk "making a central issue out of [the foren-
sic] evidence," because the State was already certain to do so.
Cf. Richter, 131 S. Ct. at 790. Rather, the circumstances
necessitated that the defense work to engender doubt about
the forensic evidence. Elmore’s lawyers attempted as much in
their cross-examinations of the State’s witnesses, but, because
ELMORE v. OZMINT 147
the lawyers had twice squandered opportunities to investigate
the forensic evidence (prior to the 1982 and 1984 trials), they
were unarmed for the battle.
The dearth of investigation also distinguishes this case from
others where counsel, having conducted some investigation,
made an informed decision to pursue another strategy. See
Cullen, 131 S. Ct. at 1407 ("There comes a point where a
defense attorney will reasonably decide that another strategy
is in order, thus ‘mak[ing] particular investigations unneces-
sary.’" (alteration in original) (quoting Strickland, 466 U.S. at
691)). In Cullen, for example, the Supreme Court withheld
relief because the defendant (Pinholster) failed to show "that
the [state habeas court’s] decision that he could not demon-
strate deficient performance by his trial counsel necessarily
involved an unreasonable application of federal law." Id. at
1403-04. Pinholster complained of his counsel’s failure to
pursue and present additional penalty-phase mitigation evi-
dence concerning his troubled background. See id. at 1404.
The Court observed, however, that counsel had investigated
mitigating evidence (including Pinholster’s background) prior
to the trial’s penalty phase, and reasonably concluded that an
alternative "family sympathy defense" was a better strategy.
See id. at 1404-05; see also, e.g., Burger v. Kemp, 483 U.S.
776, 794 (1987) (concluding, even pre-AEDPA, "that coun-
sel’s decision not to mount an all-out investigation into peti-
tioner’s background in search of mitigating circumstances
was supported by reasonable professional judgment"); Dar-
den v. Wainwright, 477 U.S. 168, 185-86 (1986) (deeming
counsel’s performance adequate where "a great deal of time
and effort went into the defense of [the] case," including "a
significant portion . . . devoted to preparation for sentencing,"
leading to a reasonable choice "to rely on a simple plea for
mercy from petitioner himself").
Because Elmore’s lawyers’ investigation into the State’s
forensic evidence never started, there could be no reasonable
strategic decision either to stop the investigation or to forgo
148 ELMORE v. OZMINT
use of the evidence that the investigation would have uncov-
ered. In nonetheless approving the performance of Elmore’s
lawyers, the state PCR court unreasonably applied Strickland
to the facts of this case. That is, "there is no possibility fair-
minded jurists could disagree that the state court’s decision
conflicts with [Strickland]." See Richter, 131 S. Ct. at 786.48
ii.
In otherwise evaluating Elmore’s ineffective assistance
claim under the performance prong of Strickland, the state
PCR court repeatedly relied on later-developed facts —
unknown to Elmore’s trial lawyers when they decided against
investigating the State’s forensic evidence prior to the 1982
and 1984 trials — to retroactively justify that decision. Of
course, the court’s reliance on such facts was in plain contra-
vention of Strickland’s contemporary assessment rule — a
rule that the state PCR court itself acknowledged. See First
PCR Order 147-48. To illustrate, the court found that the
defense team was not deficient in failing to hire an indepen-
dent pathologist to challenge medical examiner Dr. Sandra
Conradi’s time-of-death opinion, because, more than a decade
48
Our conclusion that the state PCR court unreasonably applied Strick-
land in its performance-prong analysis is not altered by the court’s discus-
sion that "the [Strickland] court recognized that much of counsel’s
strategic investigations was [sic] necessarily based upon the communica-
tions that counsel has with his client." First PCR Order 8. Generally
addressing Elmore’s multi-faceted ineffective assistance claim, the state
PCR court observed that Elmore’s 1982 trial testimony "had an effect on
how counsel would prepare and present the case in the retrial in 1984." Id.
at 9. But the court did not — and undoubtedly could not — draw any
cause-and-effect connection between Elmore’s 1982 testimony (concern-
ing such issues as his whereabouts at the alleged time of Mrs. Edwards’s
murder) and his lawyers’ failure to investigate the State’s forensic evi-
dence prior to either the 1982 or the 1984 trial. See id. at 8-9; cf. Strick-
land, 466 U.S. at 691 (explaining that limited investigation may be
reasonable if "need for further investigation" was "diminished or elimi-
nated" by defendant’s statements to counsel, or if such statements alerted
counsel that additional investigation "would be fruitless or even harmful").
ELMORE v. OZMINT 149
later, Elmore’s PCR expert Dr. Jonathan Arden "conceded
that there was a possibility that the time of death could have
been on Saturday night." Id. at 22. With respect to the defense
team’s failure to investigate the forty-five pubic hairs alleg-
edly found on Mrs. Edwards’s bed, the court concluded there
was no deficiency because SLED’s Ira Byrd Parnell, Jr., and
Frank Dan DeFreese "credibly testified" in the PCR proceed-
ings, as they had at trial, about their discovery of the hairs.
See id. at 27. The court also invoked Parnell’s PCR testimony
that he did not collect the bedcovers and sheets because he
saw nothing of evidentiary value on them. See id.49
Moreover — despite recognizing that the use of hindsight
is prohibited for Strickland’s performance-prong analysis but
necessary to the prejudice-prong inquiry, see First PCR Order
148 — the state PCR court deemed facts relevant to the preju-
dice issue to also be pertinent to the performance question.
The court thereby suggested that Elmore’s trial lawyers were
not deficient in failing to investigate the State’s forensic evi-
dence because the jury would have credited the State’s evi-
dence over any contrary evidence that Elmore could have
proffered. For example, the court cited "the historical evi-
dence" pointing to a Saturday night death (such as the burning
coffeepot and ringing alarm clock) in ruling that there was no
deficiency in answering Dr. Conradi’s time-of-death opinion.
See id. at 22. The court relied on its own findings of no break
in the chain of custody to reject Elmore’s assertion that his
trial lawyers erred with respect to the pubic hairs allegedly
found on Mrs. Edwards’s bed. See id. at 31 (finding that Par-
nell discovered and seized the hairs, that he and DeFreese
49
On the absence of a photograph of the hairs on the bed, the court
noted that "[t]he defense did not need to hire an expert to point that out,"
without confronting the lawyers’ failure to otherwise bring the nonexistent
photograph to the 1984 jury’s attention or even discern that no photograph
existed. See First PCR Order 27. Indeed, the court did not address much
of Elmore’s evidence of irregularities in the pubic hair evidence, and
declared that Elmore relied on "bare assertions" of police misconduct. See
id. at 31.
150 ELMORE v. OZMINT
delivered the hairs to SLED colleague Earl Wells, and that
Wells maintained custody of the hairs until the 1982 trial). As
for Item T, which was still missing at the time, the court
found in the First PCR Order that Item T’s contents were lim-
ited to blue fibers and thus that "[d]efense counsel cannot be
deemed ineffective for failing to develop that blue fibers were
found on the victim’s body rather than hair." Id. at 32.50
In relying on those facts, the state PCR court disregarded
the contemporary assessment rule of Strickland, from which
the Supreme Court has never strayed. The state PCR court
instead should have heeded the Supreme Court’s 1986 deci-
sion in Kimmelman, which (a full decade before the First PCR
Order) instructed against the "use of hindsight to evaluate the
relative importance of various components of the State’s
case." Kimmelman, 477 U.S. at 386-87 (quoting Strickland,
466 U.S. at 689, for the proposition that "[a] fair assessment
of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evalu-
ate the conduct from counsel’s perspective at the time"). The
Kimmelman petitioners had sought "to minimize the serious-
ness of counsel’s errors [in failing to conduct the pretrial dis-
covery necessary for a timely motion to suppress the
unlawfully seized bedsheet] by asserting that the State’s case
turned far more on the credibility of witnesses than on the
50
Once it was revealed that Item T actually consisted of four human
hairs, three animal hair fragments, and a single blue fiber, the state PCR
court revisited its Item T Strickland analysis in the Second PCR Order,
which apparently relied solely on the prejudice prong to deny relief. See
Second PCR Order 4-5; see also Strickland, 466 U.S. at 697 (advising that
courts may address performance and prejudice prongs in any order, and
need not take up both prongs if defendant has made insufficient showing
on one). The court similarly seemed to limit its First PCR Order evalua-
tion of Elmore’s fingerprint-related Strickland contention to the prejudice
prong, though the court elsewhere observed that the fingerprint evidence
was available to the defense as early as 1982 "and could have been ana-
lyzed with ‘due diligence.’" See First PCR Order 24-25, 78 n.2.
ELMORE v. OZMINT 151
bedsheet and related testimony." Id. at 385. The Court
observed, however, that the petitioners’ theory was doomed
by its dependence on hindsight. See id. at 386. The Court
explained:
At the time Morrison’s lawyer decided not to request
any discovery, he did not — and, because he did not
ask, could not — know what the State’s case would
be. While the relative importance of witness credibil-
ity vis-a-vis the bedsheet and related expert testi-
mony is pertinent to the determination whether
[Morrison] was prejudiced by his attorney’s incom-
petence, it sheds no light on the reasonableness of
counsel’s decision not to request any discovery.
Id. at 387; accord Washington v. Murray, 4 F.3d 1285, 1289
(4th Cir. 1993) ("[Counsel’s] conduct should have been evalu-
ated from his perspective at the time of trial, and the district
court should not have constructed a tactical decision counsel
might have made, but obviously did not." (citing Strickland,
466 U.S. at 689)).
There is no question that the state PCR court unreasonably
applied and acted contrary to Strickland in its performance-
prong analysis by relying on non-contemporaneous facts to
excuse the lawyers’ failure to conduct a pretrial investigation
into the State’s forensic evidence. In so doing, the state PCR
court defied the Strickland principle that a court deciding an
"ineffectiveness claim must judge the reasonableness of coun-
sel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct." See 466 U.S. at
690.
iii.
In sum, the state PCR court’s performance-prong analysis
of Elmore’s ineffective assistance claim was both an unrea-
sonable application of, and contrary to, the controlling Strick-
152 ELMORE v. OZMINT
land principles. Simply put, this is one of those instances of
deficient performance in which counsel, despite a professional
obligation to conduct an investigation, "has failed to investi-
gate [the] defense at all or has performed an investigation so
minimal that no strategic reason could be given for the failure
to investigate further." See United States v. Roane, 378 F.3d
382, 411 (4th Cir. 2004) (emphasis omitted) (citing cases);
see also Washington, 4 F.3d at 1288 ("Prior to trial, counsel
was completely in the dark about the import of the evidence,
and therefore, could not have made a strategic choice against
using it."). Hence, no amount of deference could compel any
fair conclusion other than that Elmore has satisfied his burden
under Strickland’s performance prong.
b.
i.
Next, on the prejudice prong of Strickland, the state PCR
court correctly recognized that the applicable test is "whether
there is a reasonable probability that but for counsel’s defi-
cient performance, the result of the proceeding would have
been different," with a "reasonable probability" being "a prob-
ability sufficient to undermine confidence in the outcome."
First PCR Order 5; see also id. at 148 (reiterating same). The
court erroneously misperceived, however, that the Supreme
Court’s 1993 decision in Lockhart enlarged the previously
understood requirements of Strickland’s prejudice-prong test.
As the state PCR court saw it, Lockhart "dealt . . . a telling
blow" to defendants’ typical argument "that if the outcome of
the proceeding would likely have been different, they have
shown prejudice." First PCR Order 148. The state PCR court
relied on its reading of Lockhart that "a reviewing court must
not consider ‘mere outcome determination,’ but must look
only at whether the error alleged resulted in a proceeding
which was ‘fundamentally unfair or unreliable.’" Id. (alter-
ation omitted) (quoting Lockhart, 506 U.S. at 369). According
to the court, "[t]o do otherwise applies Strickland incorrectly"
ELMORE v. OZMINT 153
and "may grant [the defendant] a windfall to which the law
does not entitle him." Id. at 148-49.
Importantly, the Supreme Court has not only rejected the
state PCR court’s interpretation of Lockhart, but deemed that
interpretation to be an unreasonable application of and con-
trary to the clearly established principles of Strickland. See
Williams, 529 U.S. at 391 ("The [state habeas court] erred in
holding that our decision in Lockhart . . . modified or in some
way supplanted the rule set down in Strickland."). Williams
explained that Lockhart involved the unusual circumstance of
an attorney error — the failure to make an objection that
would have been sustained at the time, but overruled under
current law — that "had not deprived [the defendant] of any
substantive or procedural right to which the law entitled him."
Id. at 392. Thus, "in Lockhart, [the Court] concluded that,
given the overriding interest in fundamental fairness, the like-
lihood of a different outcome attributable to an incorrect inter-
pretation of the law should be regarded as a potential
‘windfall’ to the defendant rather than the legitimate ‘preju-
dice’ contemplated by . . . Strickland." Williams, 529 U.S. at
392. Williams underscored, however, that Lockhart did "not
justify a departure from a straightforward application of Str-
ickland when the ineffectiveness of counsel does deprive the
defendant of a substantive or procedural right to which the
law entitles him" — including, relevant to Elmore, the "con-
stitutionally protected right . . . to provide the jury with . . .
evidence that his trial counsel either failed to discover or
failed to offer." Id. at 393. As Justice O’Connor had already
explained in her Lockhart concurrence:
I write separately only to point out that today’s deci-
sion will, in the vast majority of cases, have no effect
on the prejudice inquiry under Strickland . . . . The
determinative question — whether there is "a reason-
able probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different" — remains unchanged.
154 ELMORE v. OZMINT
Lockhart, 506 U.S. at 373 (O’Connor, J., concurring) (quoting
Strickland, 466 U.S. at 694)).
In Williams, the state habeas court unreasonably applied
and acted contrary to Strickland as a result of doing exactly
what the state PCR court did here: "read[ing] Lockhart to
require a separate inquiry into fundamental fairness" even if
the defendant is able to show a reasonable probability of a dif-
ferent result. See Williams, 529 U.S. at 393, 397. To be fair,
however, it is unclear whether the state PCR court actually
performed a distinct "fundamental fairness" analysis, as the
state habeas court had done in Williams. See id. at 397(observing both that state habeas court "mischaracterized"
appropriate rule and that its "decision turned on its erroneous
view"). Here, the state PCR court alternately spoke in terms
of no reasonable probability of a different result (suggesting
that the fundamental fairness question was not reached), and
simply of a lack of prejudice (indicating that fundamental
fairness may have been considered). See, e.g., First PCR
Order 23, 27.
In any event, we need not decide whether the state PCR
court’s misapprehension of Lockhart alone is lethal to its
prejudice-prong analysis, because additional error rendered
that analysis fatally unreasonable. That is, the court neither
acknowledged nor obeyed the Strickland requirement to "con-
sider the totality of the evidence before the . . . jury" in deter-
mining whether there was a reasonable probability that, but
for counsel’s errors, a different verdict would have been
returned. See Strickland, 466 U.S. at 695; see also Williams,
529 U.S. at 397-98 (concluding that state habeas court’s prej-
udice analysis was unreasonable not only for relying on mis-
interpretation of Lockhart, but also for failing to consider
totality of evidence). In the context of assessing the prejudi-
cial effect of a failure to investigate mitigation evidence for
sentencing, a court acts unreasonably if it does not "evaluate
the totality of the available mitigation evidence — both that
adduced at trial, and the evidence adduced in the habeas pro-
ELMORE v. OZMINT 155
ceeding — in reweighing it against the evidence in aggrava-
tion." Williams, 529 U.S. at 397-98; see also Porter v.
McCollum, 130 S. Ct. 447, 454 (2009) (per curiam) ("The
[state habeas court’s] decision that Porter was not prejudiced
by his counsel’s failure to conduct a thorough — or even cur-
sory — investigation is unreasonable [under Strickland]. The
[court] either did not consider or unreasonably discounted the
mitigation evidence adduced in the postconviction hearing.");
Rompilla, 545 U.S. at 390-93 (finding prejudice under same
totality-of-evidence standard on de novo review); Wiggins,
539 U.S. at 534-38 (same).
Here, the totality-of-the-evidence standard required the
state PCR court to consider all of the trial and PCR evidence
favoring Elmore’s acquittal and then to reweigh that evidence
against the State’s evidence of guilt. Under that standard, the
court should have evaluated the collective trial evidence
together with the collective evidence that a reasonable investi-
gation of the State’s forensic evidence would have uncovered.
See Porter, 130 S. Ct. at 454 (taking into account all mitigat-
ing evidence that would have been before the judge and jury
"[h]ad Porter’s counsel been effective"); Rompilla, 545 U.S.
at 390-91 (considering all mitigating evidence that Rompilla’s
lawyers would have found by looking at his prior conviction
file); Wiggins, 539 U.S. at 534-35 (including all "mitigating
evidence counsel failed to discover" in totality-of-evidence
review); Williams, 529 U.S. at 398 (same).
Clearly, however, the state PCR court engaged in a differ-
ent analysis — an analysis that unreasonably broke from
Strickland by considering less than the totality of the evi-
dence, and one that unreasonably discounted evidence favor-
able to Elmore by unduly minimizing its import and
evaluating it piecemeal. Ruling that Elmore was not preju-
diced with respect to his lawyers’ failure to investigate Dr.
Sandra Conradi’s time-of-death opinion, the court explained
that, even without a defense pathologist, "counsel Beasley
was able to clarify that the ‘time of death’ opinion in the 1984
156 ELMORE v. OZMINT
trial was inexact and the range of death was broad, from 12
hours to 3 days." First PCR Order 22. The court also pointed
out that "Dr. [Jonathan] Arden’s newly developed range [was]
within Dr. Conradi’s range," and that Dr. Conradi was able in
the PCR proceedings to "credibly support[ ] her analysis and
[provide] reasonable clarification over matters Dr. Arden
assumed she missed." Id. at 22-23. The court relied on its
finding of the SLED agents’ credibility in concluding that
Elmore was not prejudiced by his lawyers’ lack of investiga-
tion into the pubic hairs purportedly found on Mrs. Edwards’s
bed. See id. at 27, 31. And, the court decided that no prejudice
resulted from the failure to investigate the fingerprint evi-
dence — particularly the identifiable but unidentified print
lifted from the blood-smeared toilet in Mrs. Edwards’s en
suite bathroom — because that print may have come from
Mrs. Edwards and, in any event, was "of little value" and was
"not exonerating." See id. at 24-25, 76-77 (internal quotation
marks omitted).
Finally, in the First PCR Order, the state PCR court deter-
mined that the lack of investigation into Item T was nonpre-
judicial, because the defense team simply would have
discovered that Item T contained blue fibers. See First PCR
Order 32. Having thereafter learned that Item T actually
included, among other Caucasian hairs, a Caucasian hair not
belonging to Mrs. Edwards, the court yet discerned no preju-
dice. As the court explained in the Second PCR Order, "[o]ne
hair from the victim’s body from the bedroom floor that could
have come from various sources does not mandate a new
trial." See Second PCR Order 5. Contrary to the totality-of-
the-evidence standard, the court embraced the theory that the
only evidence that mattered was the evidence incriminating
Elmore; thus, according to the Second PCR Order, "[e]ven if
DNA testing showed the single [unmatched Item T] hair to be
[Jimmy] Holloway’s, the prior jury verdicts would not have
been undermined." Id.; see also First PCR Order 109 ("[T]he
fingerprint evidence claim does not ‘support’ Mr. Elmore’s
innocence, it merely reveals a print left by an unidentified
ELMORE v. OZMINT 157
person at some time in the past. It is not the existence of other
prints in the home, it is the fact that Elmore’s print was found
that is significant."). The court’s failure to consider the total-
ity of the evidence was particularly obvious in the Second
PCR Order’s discussion of Item T, which alluded to Elmore’s
pubic hairs on the bed as counterbalancing inculpatory evi-
dence without taking questions about the reliability of the
pubic hair evidence into account. See Second PCR Order 5.51
ii.
Properly applied, the totality-of-the-evidence standard
results in only one reasonable conclusion: there is a reason-
able probability — that is, a substantial likelihood — that, but
for his lawyers’ failure to investigate the State’s forensic evi-
dence, Elmore would have been acquitted in the 1984 trial.
See Strickland, 466 U.S. at 695 ("When a defendant chal-
lenges a conviction, the question is whether there is a reason-
able probability that, absent [counsel’s] errors, the factfinder
would have had a reasonable doubt respecting guilt."); see
51
Two matters concerning the state PCR court’s treatment of the pubic
hair evidence deserve some attention. First, the court used the pubic hairs
as powerful inculpatory evidence forgiving a number of alleged flaws in
the State’s case and Elmore’s lawyers’ performance, including the failure
of the police and defense counsel to investigate Holloway, the failure of
defense counsel to challenge Dr. Conradi’s finding of a sexual assault, and
the failure of the police and defense counsel to reveal that at least one fin-
gerprint on the exterior frame of the back door into the Edwards home
(near the thumbprint matched to Elmore) was identifiable and not
Elmore’s. In so doing, the court never acknowledged Elmore’s evidence
that the SLED agents lied about finding the pubic hairs on Mrs. Edwards’s
bed. Moreover, by relying on its own finding of the agents’ credibility to
rule that Elmore suffered no prejudice from his lawyers’ failure to investi-
gate the pubic hairs, the court seemed to erroneously equate Strickland’s
reasonable probability standard with a requirement for proof by at least a
preponderance of the evidence. Because the First PCR Order is ambiguous
on that point, however, we refrain from noticing additional error and
instead accord the court the benefit of the doubt. See Holland v. Jackson,
542 U.S. 649, 654-55 (2004) (per curiam).
158 ELMORE v. OZMINT
also Richter, 131 S. Ct. at 792 ("The likelihood of a different
result must be substantial, not just conceivable." (citing
Strickland, 466 U.S. at 693)). With investigation, the jury
undeniably would have seen a drastically different — and sig-
nificantly weaker — prosecution case.
As it was, the 1984 jury heard only that the scientific indi-
cators of time of death "are very variable," see J.A. 653 (trial
testimony of Dr. Conradi on cross-examination), leaving the
false impression that a Saturday night death was just as likely
as death at any other time during Dr. Conradi’s sixty-hour
window. Had Elmore’s lawyers looked into the time-of-death
opinion, the jury would have learned that death on Sunday
afternoon, when Elmore had a corroborated alibi, was much
more probable than death on Saturday night. An expert like
Dr. Arden would have advised that a Saturday night death,
though not "physically impossible," was "incredibly
unlikely." See id. at 2252 (Dr. Arden’s PCR testimony that "I
strongly hold the opinion that Mrs. Edwards was not killed
Saturday night as claimed"). And Dr. Conradi would have
been compelled to concede that "the usual case" meant death
on Sunday afternoon, and that Saturday night was "close" to
the "outside limit" of the possible range. See id. at 2720-21
(Dr. Conradi’s PCR testimony). The additional evidence
would not only call into question whether Elmore could have
perpetrated Mrs. Edwards’s murder, but also raise the issue of
whether the circumstantial evidence of a Saturday night death
was staged, thus suggesting other suspects such as Jimmy
Holloway.
Whereas the 1984 jury heard the unquestioned testimony of
SLED’s Frank Dan DeFreese and Ira Byrd Parnell, Jr., that
they found forty-five pubic hairs consistent with Elmore on
Mrs. Edwards’s bed, investigation into the pubic hair evi-
dence would have equipped the defense team for impeach-
ment of the SLED agents’ account. Even without an expert
witness, Elmore’s lawyers could have exposed the agents’
failures to photograph the hairs on the bed, to collect the bed-
ELMORE v. OZMINT 159
covers and sheets for further testing, and to package the hairs
like other physical evidence removed from the crime scene.
The lawyers also could have alerted the jury that no blood or
semen was present on the bedding, no other hairs consistent
with Elmore were found, and no groin injury was sustained by
Elmore. With an expert, the defense could have underscored
not only the SLED agents’ gross violations of standard proce-
dures for the handling of forensic evidence, but also the
extraordinariness of finding so many incriminating hairs. Par-
nell himself admitted that the hairs were exceptional in num-
ber and should have been photographed on the bed, and he
was unable to explain the hairs’ unique packaging.
Though perhaps the jury would have yet believed the
SLED agents, there is a reasonable probability that the jury
would have doubted the agents’ account — a conclusion that
is bolstered by additional clear evidence that the SLED team
was at least mistake-prone, as well as by other persuasive evi-
dence that the agents were outright dishonest. Inquiry into
Item T would have revealed that SLED’s Earl Wells either
negligently or knowingly misreported Item T’s contents as
being solely blue fibers, when "the presence of hair was
immediately apparent and clearly visible, that is to say that
hair was visible . . . to the naked eye." See J.A. 3638 (affidavit
of State’s own PCR expert Myron T. Scholberg). Thus, even
before the advent of the DNA testing that excluded Mrs.
Edwards as the source of one of those Caucasian hairs, Item
T constituted important evidence in Elmore’s favor. Similarly,
examination of the fingerprint evidence would have revealed
that DeFreese arguably misreported the toilet print as uniden-
tifiable, just as he admittedly misreported as unidentifiable a
print lifted from a spot near Elmore’s thumbprint on the exte-
rior door frame of the back door into the Edwards home. The
value of the toilet print to Elmore is somewhat circumscribed
by the inability to compare it to Mrs. Edwards, but the toilet
print, together with the additional door frame print, is none-
theless further evidence of police ineptitude and deceit.
160 ELMORE v. OZMINT
Taking into account, as we must, all of the foregoing PCR
evidence that Elmore’s lawyers failed to expose, it can no lon-
ger be said that there is an "overwhelming" case against
Elmore and Elmore alone. Cf. First PCR Order 119. To be
sure, the case against Elmore is more appropriately character-
ized as "underwhelming." The PCR evidence adds salience to
the trial evidence in Elmore’s favor, including the lack of
inculpatory evidence in his car and his voluntary pre-arrest
encounter with the police. Indeed, the PCR evidence dramati-
cally "alter[s] the entire evidentiary picture." See Strickland,
466 U.S. at 695-96 (recognizing that "[s]ome errors will have
had a pervasive effect on the inferences to be drawn from the
evidence, altering the entire evidentiary picture"). Here, the
collective trial and PCR evidence tends to cast doubt on
Elmore’s guilt, points to the likelihood of another perpetrator,
and eliminates any portrayal of the police as infallible and
truthful experts impervious to cross-examination. That is not
to say that, if the jury had heard the PCR evidence, Elmore’s
acquittal would have been certain. But, there is a reasonable
probability that such evidence would have been credited,
leaving the State’s case to rest on Elmore’s thumbprint on the
back door frame, bloodspots of the type Mrs. Edwards shared
with 40-45% of the population on Elmore’s pants and shoe,
the disputed evidence of Elmore’s guilty conscience, and fel-
low inmate James Gilliam’s account of Elmore’s spontaneous
jailhouse confession. That evidence of guilt, flimsy of its own
right, is diminished further if the PCR evidence leads one to
distrust the competence or motivations of the police investiga-
tors.
Accordingly, it must be concluded under the totality-of-the-
evidence standard that there is a reasonable probability of a
different verdict. In the words of Rompilla (slightly modified
to fit the present circumstances):
[A]lthough we suppose it is possible that a jury
could have heard it all and still have decided on the
[guilty verdict], that is not the test. It goes without
ELMORE v. OZMINT 161
saying that the undiscovered . . . evidence, taken as
a whole, might well have influenced the jury’s
appraisal of [Elmore’s] culpability, and the likeli-
hood of a different result if the evidence had gone in
is sufficient to undermine confidence in the outcome
actually reached at [trial].
See 545 U.S. at 393 (internal quotation marks omitted).
iii.
At bottom, the state PCR court both unreasonably applied
and acted contrary to Strickland in its prejudice-prong assess-
ment, just as it did in its performance-prong analysis. Because
the only fair conclusion is that Elmore has shown deficient
performance and resulting prejudice, he is entitled to relief on
his Sixth Amendment ineffective assistance of counsel claim.
IX.
Finally, we briefly address our dissenting colleague’s
uncharacteristically strident — and flat-out wrong — por-
trayal of this decision as some sort of flippant incursion into
state territory where we federal judges do not belong. As our
esteemed friend would have it, our job is solely to rubber-
stamp the state PCR court — never mind that court’s flouting
of clear Supreme Court precedent and disregard of inconve-
nient evidence. Conversely, we see a meaningful role for the
federal courts in safeguarding the constitutional rights of state
prisoners like Elmore. And we enjoy illustrious company —
the Supreme Court itself — in that view. See, e.g., Miller-El
v. Cockrell, 537 U.S. 322, 340 (2003) ("Even in the context
of federal habeas, deference does not imply abandonment or
abdication of judicial review. Deference does not by defini-
tion preclude relief.").
Of course, AEDPA appreciably constrains the scope of our
review. But we have carefully and faithfully adhered to the
162 ELMORE v. OZMINT
deferential AEDPA standard, guided at every step by a bevy
of pertinent Supreme Court decisions, beginning with the
seminal Strickland v. Washington, 466 U.S. 668 (1984), and
extending through the Court’s AEDPA-era ineffective assis-
tance cases. While it is enough for our dissenting colleague
that the state PCR court uttered the word "Strickland," our
AEDPA analysis — in line with that of the Supreme Court —
is more demanding. For example, we rule today that the state
PCR court unreasonably applied and acted contrary to Strick-
land in its prejudice-prong analysis by misapprehending the
import of Lockhart v. Fretwell, 506 U.S. 364 (1993), and by
failing to heed Strickland’s totality-of-the-evidence standard.
In so ruling, we trod no new path. Rather, we aptly rely on the
Supreme Court authority of Williams v. Taylor, 529 U.S. 362,
397-98 (2000).52
Oddly, the dissent ascribes Elmore’s ineffective assistance
claim to the panel majority, as if we invented it for this
appeal. In reality, Elmore spent years in the state PCR court
developing evidence in support of his theory that he was the
victim (and possible murderer Jimmy Holloway the benefi-
ciary) of inept and corrupt law enforcement officers
unchecked by incompetent defense counsel. We, in turn, sim-
ply fulfill our obligation to thoroughly review the trial and
PCR evidence in conducting an AEDPA assessment of the
state court’s adjudication of Elmore’s claim. In the process,
we address the claim and evidence precisely as presented to
52
Our dissenting colleague goes so far as to suggest that the state PCR
court cannot possibly have acted unreasonably, because we are the first
judges to say that Elmore was prejudiced by his lawyers’ deficient perfor-
mance. If that were the yardstick, our review would truly be the perfunc-
tory exercise that the dissent advocates. But (thankfully for the cause of
our system of justice) that is not the test, as illustrated by Miller-El v.
Dretke, where the Supreme Court became the first court to proclaim the
merit of Miller-El’s Fourteenth Amendment jury claim. See 545 U.S. 231,
236-37 (2005) (ordering 28 U.S.C. § 2254 relief following claim’s unani-
mous rejection by state trial court, state appeals court, federal district
court, and federal court of appeals).
ELMORE v. OZMINT 163
the state court. We do not, as the dissent prefers, follow the
state court’s misguided lead in recasting the claim into less
cogent parts and minimizing (to the point of outright ignor-
ing) important pieces of evidence. Neither do we credit
Elmore’s evidence nor endorse his innocence theory. Indeed,
our only pronouncement is this: There is a reasonable proba-
bility that, had the 1984 jury heard the evidence that Elmore’s
lawyers deficiently failed to uncover, the verdict would have
been "not guilty." We are not — and do not presume to be —
the arbiters of any other question, including whether Elmore
murdered Mrs. Edwards, whether he was framed by the SLED
investigators, or whether the real perpetrator was Holloway.
Our dissenting colleague, by contrast, confidently declares
Elmore to be guilty, the SLED team to be above reproach, and
Holloway to be viciously and baselessly maligned. The dis-
sent takes great umbrage that we would entertain any other
possibility and thereby impugn the South Carolina criminal
justice system and the late Mr. Holloway. If our opinion
embarrasses anyone, so be it. It would be entirely inappropri-
ate for us to pull our punches or take any such consideration
into account. There are far greater interests at stake: the fair-
ness of our judicial system and, more specifically, Elmore’s
Sixth Amendment right to the effective assistance of counsel.
X.
Pursuant to the foregoing, we reverse the judgment of the
district court denying relief and remand for the court to award
Elmore a writ of habeas corpus unless the State of South Car-
olina endeavors to prosecute him in a new trial within a rea-
sonable time.
REVERSED AND REMANDED
164 ELMORE v. OZMINT
WILKINSON, Circuit Judge, dissenting:
It would be amusing, if it were not so very serious, to imag-
ine for a moment the majority’s visit to a haberdashery. The
visit would be a fun one, because my friends in the majority
would try on every hat in the shop, except, of course, the one
that might conceivably fit. Here, the majority dons the head-
wear of the jury, the state trial court, the state appellate court,
the state post-conviction relief (PCR) court, and the federal
district court, but then inexplicably leaves the premises with-
out a passing glance at the cap befitting federal appellate
judges reviewing under AEDPA the considered judgment of
a state court that a defendant’s counsel was not ineffective
and that there was no prejudice arising from that counsel’s
allegedly deficient performance.
The majority spends a considerable amount of time defend-
ing its conclusion that Edward Lee Elmore is entitled to
habeas relief on his ineffective assistance of counsel claim.
But as Mark Twain is reputed to have said, "The more you
explain it, the more I don’t understand it." SEC v. Chenery
Corp., 332 U.S. 194, 214 (1947) (Jackson, J., dissenting).
Simply put, the majority’s rejection of the South Carolina
PCR court’s determination that defense counsel’s alleged
deficiencies did not result in prejudice cannot be squared with
the deferential standards required under AEDPA, the facts of
this case, or Supreme Court precedent. And in the course of
its decision, the majority unjustly impugns the criminal justice
system of South Carolina, slanders a deceased man who sim-
ply had the misfortune of discovering his neighbor’s mutilated
body, and grants habeas relief to a prisoner whom over-
whelming evidence suggests brutally raped and murdered an
elderly woman in her home. For these reasons, I respectfully
dissent.
ELMORE v. OZMINT 165
I.
A.
Under the two-prong test set forth in Strickland v. Washing-
ton, 466 U.S. 668 (1984), Elmore must show not only that his
"counsel’s representation fell below an objective standard of
reasonableness," id. at 688, but also that there was "a reason-
able probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different." Id. at
694.
According to Strickland, courts should resolve ineffective
assistance claims under the prejudice prong whenever possi-
ble. See id. at 697 ("If it is easier to dispose of an ineffective-
ness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be fol-
lowed."); see also Fields v. Attorney Gen., 956 F.2d 1290,
1297 (4th Cir. 1992) ("If the defendant cannot demonstrate
the requisite prejudice, a reviewing court need not consider
the performance prong."). It is clear beyond peradventure that
whatever defense counsel’s alleged failings, the outcome of
Elmore’s 1984 trial would almost certainly have been the same.1
1
In view of the fact that this case can be soundly resolved on the preju-
dice prong of Strickland, I see no need to go into the performance aspect
of the case. By no means, however, do I concede the point that the state
PCR court’s finding that Elmore’s "[c]ounsel was [not] ‘deficient’ . . .
with respect to the second trial" represents an unreasonable application of
Strickland. In fact, the majority itself points out the significant efforts
defense counsel made in attacking the state’s case. See ante at 30-33,
128-131. It is manifest that the problem here was not Elmore’s counsel,
but the fact that even the most sterling advocate cannot overcome an over-
whelmingly adverse case. To scapegoat Elmore’s counsel for not perform-
ing impossible feats seems to me a deeply flawed application of the
Strickland decision.
166 ELMORE v. OZMINT
B.
Only if one is prepared to throw Strickland deference to the
winds can prejudice to Elmore be discerned. The majority’s
approach here notwithstanding, we are neither the first court,
nor the best positioned one, to consider Elmore’s claim. In
collateral review, state courts should not be subordinate
courts, and the procedural history in fact places a heavy duty
of deference upon us. The standard of review here is among
the best known in all of law. As amended by AEDPA, 28
U.S.C. § 2254 provides that "[a]n application for a writ of
habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted" unless the state
court’s decision either "was contrary to, or involved an unrea-
sonable application of, clearly established Federal law, as
determined by the Supreme Court," 28 U.S.C. § 2254(d)(1),
or was "based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceed-
ing." Id. § 2254(d)(2). Unless it falls under one of these nar-
row exceptions, we cannot set aside a state court’s judgment
on collateral attack.
It is not as though the state court missed the point. As the
majority acknowledges, the state PCR court recognized that
the clearly established law of Strickland governed Elmore’s
claims. Ante at 133. The majority nevertheless concludes that
the PCR court both "acted contrary to" and "unreasonably
applied" Strickland in its prejudice analysis. Id. at 161. Spe-
cifically, it believes the PCR court contravened Strickland’s
mandate to "consider the totality of the evidence," id. at 154
(quoting Strickland, 466 U.S. at 695), and that, "[p]roperly
applied, the totality-of-the-evidence standard results in only
one reasonable conclusion," namely, that defense counsel’s
alleged errors resulted in prejudice. Id. at 157.
The Supreme Court and Congress notwithstanding, the
majority’s view is de novo in disguise. The PCR court’s appli-
cation of Strickland’s prejudice prong cannot fall under the
ELMORE v. OZMINT 167
"contrary to" clause of § 2254(d)(1). To qualify under this
provision, a state court must either "arrive[ ] at a conclusion
opposite to that reached by [the Supreme] Court on a question
of law" or "decide[ ] a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts." Wil-
liams v. Taylor, 529 U.S. 362, 412-13 (2000). In dismissing
Elmore’s prejudice claim, the PCR court committed neither of
these two errors. As for the first, according to Strickland
itself, the prejudice inquiry is a "mixed question[ ] of law and
fact," 466 U.S. at 698, and the majority’s rejection of the PCR
court’s analysis is heavily focused on factual considerations.
See ante at 157-160. As for the second, the majority fails to
provide a materially indistinguishable precedent. At best, it
offers a short string-cite of cases, a number of which involved
de novo rather than deferential review. See id. at 154-155. At
the end of the day, the majority’s conflation of these two
clauses only muddles the matter before us.
At bottom, the majority’s two attacks on the PCR court are
really a single claim that the state court unreasonably applied
Strickland by refusing to find prejudice in this case. This con-
clusion, however, cannot be squared with the deference
required under § 2254. When applying the "unreasonable
application" clause, it is important to remember that "an
unreasonable application of federal law is different from an
incorrect application of federal law." Williams, 529 U.S. at
410 (emphasis in original). As the Supreme Court has stated
time and again, "[E]ven a strong case for relief does not mean
the state court’s contrary conclusion was unreasonable." See,
e.g., Harrington v. Richter, 131 S. Ct. 770, 786 (2011). We
simply cannot overturn on collateral attack a state court’s con-
clusion that a claim lacks merit "so long as fairminded jurists
could disagree on the correctness of the state court’s deci-
sion." Id. (internal quotation marks omitted). This statute
creates a "highly deferential standard for evaluating state-
court rulings" that "demands that state-court decisions be
given the benefit of the doubt." Woodford v. Viscotti, 537 U.S.
19, 24 (2002) (per curiam) (internal quotation marks omitted).
168 ELMORE v. OZMINT
It is not as though the Supreme Court has uttered these sen-
timents only once. It has repeated them time and time again,
in part because actions of lower federal courts have made that
repetition necessary. Standards of review are not advisory.
They are not catechisms whose repetition is designed to make
us numb. AEDPA commands federal courts to show respect
for state court factual findings in order "to further the princi-
ples of comity, finality, and federalism." Williams, 529 U.S.
at 436. These findings "shall be presumed to be correct," and
can only be overcome "by clear and convincing evidence." 28
U.S.C. § 2254(e)(1). The South Carolina courts did not kiss
this case off. Despite having at its disposal a 183-page state
PCR court opinion rejecting sixteen separate allegations of
error, the majority takes it upon itself to adjudicate Elmore’s
Strickland claims anew and overturn a litany of state court
factual findings. Like overreaching appellate courts in the
past, the majority simply has given "§ 2254(d) no operation
or function in its reasoning." Richter, 131 S. Ct. at 787.
If the requirements of § 2254 were not enough to send a
strong cautionary signal, Strickland itself imposes an addi-
tional level of deference for reviewing ineffective assistance
claims. "The standards created by Strickland and § 2254(d)
are both highly deferential, and when the two apply in tan-
dem, review is doubly so." Id. at 788 (citations omitted). On
the performance prong, courts are not permitted to "second-
guess counsel’s assistance" or to engage in an "intrusive post-
trial inquiry" due to the fact that an appellate court’s hindsight
often fails to take account of the actual circumstances on the
ground. See Strickland, 466 U.S. at 689-90. And as for the
prejudice prong, there must be a "substantial, not just conceiv-
able," likelihood that counsel’s alleged errors led to a differ-
ent result. Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)
(internal quotation marks omitted).
These two prongs—and the deferential approach required
by each — necessarily overlap. See Correll v. Ryan, 539 F.3d
938, 951 (9th Cir. 2008) ("[D]eficient performance and preju-
ELMORE v. OZMINT 169
dice questions may be closely related."). It is therefore unsur-
prising that courts regularly apply the "doubly deferential"
standard of Strickland and AEDPA to both the performance
and prejudice prongs. See, e.g., Cullen, 131 S. Ct. at 1410-11;
Foust v. Houk, 655 F.3d 524, 534 (6th Cir. 2011). This makes
good sense. If appellate courts must be wary of deeming
counsel’s conduct to be deficient, they should also be cautious
before deciding that that conduct actually resulted in preju-
dice.
The majority pays lip service to these principles, but their
ultimate role in its decision is limited to perfunctory opening
remarks. See ante at 122-124. Had the majority begun its
analysis by seriously applying the doubly deferential standard
required by Strickland and AEDPA to the PCR court’s adjudi-
cation of Elmore’s prejudice claims, it would have quickly
concluded that it could not grant relief. Instead, it decided to
engage in what amounts to yet another trial of Elmore, only
this time without a jury, live evidence, or the other accoutre-
ments of adversarial process that give a trial its rightful name.
It is not unusual that sound principles of legal structure fall
into disrepair in a habeas case. See, e.g., Richter, 131 S. Ct.
at 792 (reversing a federal appellate court’s refusal to show
deference to a state court’s adjudication of a Strickland claim
on collateral attack). But I am sorry to see an example so
extreme.
II.
Three basic facts demonstrate that the majority’s rejection
of the PCR court’s prejudice analysis ignores the principles of
deference set down by Congress and the Supreme Court.
First, my friends in the majority stand in a lonely, lonely
place. No court—either state or federal—has ever before
found that any of defense counsel’s alleged errors prejudiced
Elmore. Second, unlike the juries that convicted Elmore and
the PCR court that upheld that conviction, the majority has
not heard a shred of witness testimony. Finally, the majority
170 ELMORE v. OZMINT
disregards the actual evidence and spins a fanciful conspiracy
theory that cannot be squared with the facts of this case.
These are all symptoms of a court doing its own thing rather
than one mindful of its role when assessing Strickland claims
on collateral attack.
A.
To begin, the majority’s decision runs up against the strik-
ing fact that before today, no court had ever found that the
conduct of Elmore’s counsel resulted in constitutional preju-
dice. Instead, after examining this issue in extensive detail,
the state PCR court, the federal magistrate judge, and the fed-
eral district court each concluded that the Elmore could not
make this showing. This fact is significant because we can
only reverse the PCR court’s decision here if there is no pos-
sibility that "fairminded jurists could disagree." Richter, 131
S. Ct. at 786. While the previous federal opinions impose on
us no duty of deference as state opinions do, see Conner v.
Polk, 407 F.3d 198, 204 (4th Cir. 2005), they demonstrate that
the majority has reached the remarkable conclusion that every
single judge to have previously considered this issue has been
unreasonable. The only reasonable conclusion, says the
majority, is its own.
The majority focuses on four evidentiary issues to support
its claim that the supposed failings of Elmore’s counsel
resulted in prejudice. First, it contends that had defense coun-
sel more fully investigated Dr. Conradi’s expert opinion
regarding Mrs. Edwards’s time of death, the jury would have
discovered that it was more likely her murder occurred on
Sunday afternoon rather than Saturday night. Ante at 158. But
the state PCR court rejected this precise argument. It began by
noting that even Elmore’s own expert "conceded that there
was a possibility that the time of death could have been on the
Saturday night." It then reiterated the strong circumstantial
evidence supporting a Saturday night time of death. Mrs.
Edwards had planned to leave on a trip Sunday morning, a
ELMORE v. OZMINT 171
trip she never had the opportunity to undertake. Instead, on
Sunday, her car remained parked at her home. When her body
was discovered Monday afternoon, the television set was on
with a TV Guide open to Saturday evening. The Sunday and
Monday newspapers were lying in her driveway. In light of
this evidence, it is little wonder that the PCR court determined
that Elmore "has failed to show a reasonable probability that
had a pathologist be[en] retained in 1984, the result of the
proceeding would have been not guilty."
Neither the magistrate judge nor the district court found
this conclusion to be unreasonable. The magistrate judge, for
instance, concluded that Elmore "has failed to show a reason-
able probability that the result would have been different."
And the district court pointed out that unlike Elmore’s expert,
Dr. Conradi — the forensic pathologist who performed Mrs.
Edwards’s autopsy and testified that the time of death was
likely Saturday night—"had first-hand information from the
autopsy which credibly supported her analysis," such as the
limited extent of rigor mortis present when she examined the
body. Moreover, the district court noted that Dr. Conradi
"took into account factors that [Elmore’s expert] assumed she
had missed, such as body temperature, the extent of decompo-
sition, and the fact that the body had been transported." In this
battle of the experts, it is hard to see how the majority could
dismiss the reasoned conclusions of every previous court and
declare that Elmore’s witness was the clear winner.
Second, the majority claims that had defense counsel pur-
sued the theory that the police lied about discovering forty-
five of Elmore’s pubic hairs in Mrs. Edwards’s bed, there was
a reasonable probability that his client would have been
acquitted. See ante at 158-159. Once again, every court to
have previously considered the evidence has come to the
opposite conclusion. After hearing testimony from the SLED
agents who discovered the pubic hairs, the state PCR court
determined that they "credibly testified about the existence
and discovery of the hair." It then found that there was no
172 ELMORE v. OZMINT
break in the chain of custody of that evidence, as the hairs
were secured in a zip lock bag at the crime scene and deliv-
ered to Lieutenant Earl Wells who kept them until trial. The
court concluded that Elmore’s "bare assertions" that there was
a break in the chain of custody raising the possibility of tam-
pering were "without merit" and dismissed this Strickland
claim.
The magistrate judge similarly refused to find prejudice and
adopted the state court’s finding that Elmore "has not shown
a break in the chain of evidence with regard to the hair." The
district court reached the same conclusion. Noting that "the
PCR court made very specific factual findings regarding the
credibility of the state’s witnesses" and "the collection of
hairs from the victim’s bed" and had considered Elmore’s
arguments, it refused to overturn the state court’s determina-
tion that Elmore had not been prejudiced. Observing that
Elmore "has failed to establish that there was any break in the
chain of custody," it concluded that the PCR court’s determi-
nation here was simply "not a decision that was contrary to,
or involved an unreasonable application of clearly established
federal law." The majority should have followed that course
today.
Third, the majority claims that defense counsel’s decision
not to investigate three unidentified fingerprints on Mrs.
Edwards’s toilet and exterior door frame was prejudicial. See
ante at 159. During the PCR proceedings, Elmore’s experts
argued that these prints formerly considered unidentifiable
were in fact identifiable, and not a match for Elmore. But as
the PCR court concluded, this did not result in any constitu-
tional prejudice. As it observed, the jury was well aware that
Elmore’s fingerprints were found only on Mrs. Edwards’s
outside doorframe and not within her house. Given that these
new arguments would have not told the jury anything new,
the PCR court concluded that Elmore’s prejudice argument
was so unconvincing as to "strain[ ] his own credibility."
ELMORE v. OZMINT 173
For similar reasons, the magistrate judge found that Elmore
was not prejudiced, noting that the experts at the PCR hear-
ings disagreed "about the ability to identify one of those
prints." The district court agreed and dismissed Elmore’s "as-
sertion that fingerprints of an unknown third party were found
at the crime scene" as "incorrect." In particular, it observed
that Elmore’s own expert could not compare the toilet print
with the victim’s fingerprints and consequently was unable to
rule out the distinct possibility that the print inside Mrs.
Edwards’s home was in fact Mrs. Edwards’s own.
Fourth, the majority contends that defense counsel’s lack
of investigation into the presence of a Caucasian hair in "Item
T"—the material found on Mrs. Edwards’s chest that was
originally (and mistakenly) identified as blue fibers — was
prejudicial. See ante at 159 This evidence came to light late,
after most state post-conviction proceedings had come to a
close, and it ultimately extended litigation in state court by
several years and necessitated a separate opinion.
That state court opinion, however, made clear that this new
evidence did not amount to much. To start, the PCR court
found that the initial failure to disclose the hair by SLED
Agent Wells was not intentional. As it observed, Elmore’s
"position that Agent Wells knowingly withheld this evidence
is refuted by . . . the fact that it was he, not another source,
who discovered the missing evidence and reported the discov-
ery" to the South Carolina Attorney General’s Office. In addi-
tion, Wells repeatedly "offered himself for cross examination"
in these new proceedings, but Elmore refused to take advan-
tage of the opportunity. As the PCR court concluded, "I do
not find that SLED Agent Wells knowingly failed to disclose
the hair evidence and accept his sworn statement that his pre-
vious testimony was incorrect but was based upon his then
recollection."
Moreover, the state court observed that there was only one
strand of Caucasian hair in the set that did not belong to the
174 ELMORE v. OZMINT
victim. Of course, a body lying on or flailing about the floor
is bound to pick up a stray hair or two. As the PCR court con-
cluded, "One hair from the victim’s body from the bedroom
floor that could have come from various sources does not
mandate a new trial." The magistrate judge reached a similar
conclusion and the district court did so as well, noting that a
"single third-party Caucasian hair found on the victim’s body
is greatly outweighed by the substantial evidence against
[Elmore]." As I will discuss in greater detail, that substantial
evidence includes the pubic hairs belonging to Elmore found
on the victim’s bed, the blood matching Mrs. Edwards’s
blood type found on Elmore’s clothes, his lack of a consistent
alibi for his whereabouts on Saturday night, his lie to the
police that he did not know Mrs. Edwards, and his confession
to his cellmate. Against this mountain of evidence, Elmore is
able to construct no more than a small hill.
On each one of these four claims of prejudice, the state
PCR court, the magistrate judge, and the district court reached
the opposite conclusion from the one the majority puts forth
today. The majority, however, runs roughshod over these
findings, dismissing, for example, the circumstantial evidence
in support of Dr. Conradi’s analysis as "staged," ante at 158,
despite the fact that no court has ever found anything that
would support this extreme allegation. And even though the
majority admits that the "value of the toilet print to Elmore is
somewhat circumscribed," it still contends that defense coun-
sel’s decision not to investigate this print fully resulted in
prejudice because it constituted "evidence of police ineptitude
and deceit." Id. at 159. I have no idea where the majority is
coming up with these things. Disparaging rhetoric cannot sub-
stitute for evidence, the foundation on which the PCR court’s
factual findings rest. Nor can it displace the credibility deter-
minations that are uniquely a trial court’s to make. Such spec-
ulative reasoning does not exhibit deference of any kind, let
alone the doubly deferential standard of review mandated by
Strickland and AEDPA.
ELMORE v. OZMINT 175
B.
The majority not only disregards the considered judgment
of three separate courts, but does so without hearing a single
second of witness testimony. But with only the written record
in front of us, we as appellate judges are in the worst possible
position to evaluate witness credibility. As the Supreme Court
has observed: "Face to face with living witnesses the original
trier of the facts holds a position of advantage from which
appellate judges are excluded. In doubtful cases the exercise
of his power of observation often proves the most accurate
method of ascertaining the truth." Marshall v. Lonberger, 459
U.S. 422, 434 (1983) (citation omitted). We must therefore
always approach a lower court’s factual determinations with
an eye toward our inherent limitations. This is especially true
on collateral attack, where principles of comity and federal-
ism command that we grant the factual findings of state courts
great respect. See Miller-El v. Cockrell, 537 U.S. 322, 339-40
(2003).
In this case, however, these warnings have fallen upon deaf
ears. Despite the fact that every jury and judge to have heard
witness testimony has not been convinced of Elmore’s inno-
cence, the majority suggests that he was an innocent man
framed by the police and prejudiced by his attorney’s sup-
posed failings. But unlike the two juries that convicted
Elmore or the state PCR court that rejected his Strickland
claims, the majority has observed not one of the following
witnesses testify:
• Jimmy Holloway, the neighbor of Mrs. Edwards
who discovered her mutilated body and the man
the majority now suggests is responsible for her
murder. See ante at 132, 158.
• Dr. Sandra Conradi, the forensic pathologist who
performed Mrs. Edwards’s autopsy and estimated
that her time of death was Saturday night.
176 ELMORE v. OZMINT
• Dr. Jonathan Arden, a New York forensic pathol-
ogist who neither performed Mrs. Edwards’s
autopsy nor spoke with Dr. Conradi, but who
concluded that the likelihood of a Saturday night
time of death was highly unlikely, though not
"physically impossible."
• Lieutenant Frank DeFreese, the SLED fingerprint
analyst who saw the pubic hairs in Mrs.
Edwards’s bed as well as lifted Elmore’s finger-
print from the frame of the back door to Mrs.
Edwards’s home and an officer the majority now
suggests committed perjury. See id. at 158-159.
• Four officers of the Greenwood Police Depart-
ment who confirmed DeFreese’s impression that
Elmore’s fingerprint on the door frame was "re-
cent" or "fresh." See id. at 17-18.
• Ira Parnell, the SLED agent who assisted
DeFreese at the crime scene by collecting forty-
five of Elmore’s pubic hairs from Mrs.
Edwards’s bed and who, according to the PCR
court, "credibly testified about the existence and
discovery of the hair."
• Lieutenant Thomas Henderson, the SLED agent
who questioned Elmore about the blood on his
shoes and the man the majority now suggests
"plant[ed]" that evidence. See id. at 94.
• John C. Barron, the SLED serologist who deter-
mined that some of the blood on Elmore’s cloth-
ing matched Mrs. Edwards’s blood type and
testified "without equivocation" that he main-
tained control of the stained clothing until trial.
• Rodger Morrison, an Alabama serologist who
criticized Barron’s analysis and hypothesized that
ELMORE v. OZMINT 177
further testing could have ruled out the possibility
that Mrs. Edwards’s blood was on Elmore’s
clothes. But see infra note 2 (observing that DNA
testing has since confirmed that the blood on
Elmore’s clothes matched Mrs. Edwards’s DNA).
• Hayward Starling, a self-employed forensic sci-
entist who criticized SLED’s investigative proce-
dures and claimed that the print lifted from the
blood-smeared toilet was identifiable, but who
"could not eliminate" the possibility that the print
belonged to Mrs. Edwards.
• Lieutenant Earl Wells, the SLED chemist who
examined the hair evidence and an agent the
majority now accuses of "negligently or know-
ingly misreport[ing]" evidence despite the PCR
court’s findings to the contrary. See ante at 159.
• Skip Palenik, a self-employed microscopist who
argued that the number of pubic hairs found on
Mrs. Edwards’s bed was atypical and unusual.
• James Gilliam, the inmate who testified that
Elmore confessed to him that "he went there to
rob the lady, and she started screaming, so he had
to kill her," and whose later recantation the PCR
court found lacked credibility.
• Arlie Capps, the jail administrator Elmore
accuses of inducing Gilliam to testify falsely but
whose testimony the PCR court found to be "con-
sistently credible."
• Sergeant Alvin Johnson, the police officer who
testified that neither he nor any other officer had
ever discussed Elmore with Gilliam prior to
178 ELMORE v. OZMINT
receiving Gilliam’s letter detailing Elmore’s con-
fession.
• Mary Alice Harris (nee Dunlap), the former girl-
friend of Elmore who threw his shirt in the trash
when he appeared at her mother’s home with a
swollen lip after midnight on Sunday, January 17.
• Donnie, Susan, and Frances Mosley, the mem-
bers of Dunlap’s family who each confirmed
Elmore’s time of arrival that evening.
• Major James Coursey, the police officer who tes-
tified that at the time of his arrest, Elmore repeat-
edly denied knowing Mrs. Edwards until
confronted with one of her checks made out to
him.
• Dr. Jonathan Venn, the psychologist who con-
tended that Elmore’s statement that he did not
know Mrs. Edwards was insignificant in light of
his memory problems.
• Geddes Anderson, John Beasley, and Billy Gar-
rett, the attorneys who represented Elmore in his
three trials and who testified extensively about
their defense strategies.
• Edward Lee Elmore, the defendant himself.
Even the above sources do not exhaust the list. Despite not
hearing a second of testimony from this roster of witnesses—
some of whom testified at trial, some of whom testified at the
PCR proceedings, and some of whom testified at both—the
majority treats Elmore’s experts who never participated in the
original investigation as unbiased oracles of truth, see ante at
36-67, while suggesting that some of the prosecution’s key
witnesses "were outright dishonest." Id. at 159. This analysis
ELMORE v. OZMINT 179
ignores the Supreme Court’s admonition that we are ill-
equipped to engage in such sensitive credibility determina-
tions. See Marshall, 459 U.S. at 434 ("[F]ederal habeas courts
[have] no license to redetermine credibility of witnesses
whose demeanor has been observed by the state trial court,
but not by them.").
Had the members of the majority actually been in court and
then rendered its string of pejorative assessments, I would be
prepared to credit them. But unless we are prepared to hold
that trials and hearings are mere useless exercises, I would
respect the views of those who were there. Without ever hear-
ing a shred of witness testimony, the majority has effectively
decided to take on the role of a jury in the sky and acquit
Elmore. It does so despite the fact that no court before us has
been in a worse position to evaluate Elmore’s conviction and
no court before us has doubted it. To invalidate it on largely
factual grounds, as the majority does today, contravenes
AEDPA and all that it stands for.
C.
Finally, the majority disregards the actual evidence sup-
porting Elmore’s conviction. Given the strength of the case
against Elmore, it is hard to believe that even a flawless
defense attorney would have been able to obtain an acquittal
here. And it is even harder to believe that any jury would have
accepted the conspiracy theory concocted by Elmore and
embraced by the majority today. Elmore’s conviction has
withstood nearly three decades of intense scrutiny from multi-
ple juries and judges for the best of reasons: there is so much
evidence that supports it.
1.
The case against Elmore was anything but a flimsy one. To
start with, the physical evidence points directly to his guilt.
The state PCR court found that forty-nine hairs were recov-
180 ELMORE v. OZMINT
ered from Mrs. Edwards’s bed. According to Lieutenant
Wells, two of those hairs were consistent with Mrs.
Edwards’s head hairs, two of them were consistent with her
pubic hairs, and forty-five of them were consistent with
Elmore’s pubic hairs. Elmore has since conceded that those
forty-five pubic hairs belong to him. Ante at 48-49 n.16. His
thumbprint was also found on the exterior frame of the back
door to Mrs. Edwards’s home and multiple police officers tes-
tified that the print was relatively "fresh." See id. at 17-18.
And the jeans and shoes that Elmore admitted wearing on Sat-
urday were spattered with blood that matched Mrs. Edwards’s
blood type, but not his own. On cross-examination, he could
give no explanation of where this blood came from.2
If that were not enough, the prosecution also provided an
overwhelming amount of circumstantial evidence of Elmore’s
guilt. First, Elmore had no consistent alibi for Saturday eve-
ning, the time in which Mrs. Edwards was murdered. On the
day of his arrest, Elmore signed a written statement in front
of Lieutenant Henderson stating that he was with his girl-
friend Mary Alice Dunlap at a K-Mart "until nine-thirty p.m.,"
when she was picked up by her brother. According to this
2
DNA testing now confirms that the blood on Elmore’s jeans and shoes
fully or partially matches Mrs. Edwards’s DNA. The majority dismisses
this latest installment of inculpatory evidence as "consistent with Elmore’s
position that the SLED agents . . . planted Mrs. Edwards’s blood on his
clothing." See ante at 128. It also assumes without deciding that Cullen v.
Pinholster, 131 S. Ct. 1388 (2011), precludes consideration of this evi-
dence given that it was developed following the first and second PCR
orders. See id. at 126. For the sake of argument, I will address the majority
on its own terms and rely only on the evidence available at the time of
these PCR proceedings. Still, it is worth noting the lengths to which the
majority has gone to grant Elmore relief. In the face of evidence that
would seem to put Elmore’s guilt beyond question, the majority embraces
the only possible explanation that would preserve its claim he was inno-
cent: the unfounded theory that he was framed by the police. At this point,
I am skeptical that any evidence, no matter how probative, would ever be
able to shake the majority’s unquestioning and ill-supported faith in
Elmore’s innocence.
ELMORE v. OZMINT 181
statement, Elmore then "stop[ped] only for a minute to get a
beer and then went straight on" to see his girlfriend and her
family, with whom he then stayed until "sometime before
midnight." But at trial, Dunlap and her family members testi-
fied that Elmore left them a little before 10:00 p.m. and did
not return until 12:30 in the morning, nursing a newly swollen
lip. On the stand, Elmore changed his story as well, claiming
that he "stayed awhile . . . talking" at a convenience store
before going to see Dunlap "around ten-thirty or eleven." Evi-
dently the jury — which again was far better positioned to
evaluate Elmore’s credibility than the majority — did not find
these shifting alibis to be persuasive.
What is more, Elmore lied to the police about even know-
ing the victim. It is undisputed that Elmore knew Mrs.
Edwards, having done household work for her on several
occasions. In fact, on the day he was arrested he had a piece
of paper in his wallet with her name and number on it. But
when Elmore was arrested, he denied knowing who she was
until the officers confronted him with checks she had written
to him, at which point he changed his tune. He then told the
arresting officer that "if in fact he did kill Mrs. Edwards, that
he did not remember doing it."
Finally, this already strong case was further bolstered by
Elmore’s confession to his cellmate, James Gilliam. When
Elmore was arrested, Gilliam was in jail for receiving stolen
goods, and the two knew each other from having once lived
in the same apartment complex. Gilliam testified that Elmore
told him about how he had gone to Mrs. Edwards’s house to
rob her but "the lady started screaming and she wouldn’t stop
and so he had to kill her." Elmore also queried Gilliam about
whether his efforts at eliminating the forensic evidence of the
crime had been successful. Specifically, Elmore described
how he had wiped his fingerprints and asked Gilliam "if you
had sex with somebody and you washed up, could you tell
that you have had sex with that person." Gilliam wrote a letter
182 ELMORE v. OZMINT
to the police about this conversation and testified about it con-
sistently throughout Elmore’s three jury trials.
But in the state PCR proceedings, Gilliam changed course,
testifying that Arlie Capps, a jail administrator, had come to
him offering a deal if Gilliam could get a confession from
Elmore and that Gilliam had invented the confession to reap
those benefits. One of Gilliam’s two stories is false, of course.
But which? The question turns on credibility and thus funda-
mentally belongs to the state PCR court. See, e.g., Wilson v.
Ozmint, 352 F.3d 847, 858 (4th Cir. 2003) ("Credibility deter-
minations . . . are presumed to be correct absent clear and
convincing evidence to the contrary.") (internal quotation
marks and citation omitted). The PCR court heard extensive
evidence on this issue, including testimony from jail adminis-
trators, other prisoners, and Gilliam himself. Its conclusion
was emphatic: "Why Gilliam chose to recant his testimony is
not evident, but that does not mean that his new version has
credibility and I hold that it does not." In particular, it found
that "there has been no showing that there was any ‘deal.’"
Probing the inconsistencies in Gilliam’s new story, the court
called his recantation "illogically conflicting and incredible"
and added that "[t]he gross speculation that Gilliam’s testi-
mony was scripted is pure fiction."
Thus, even if Elmore’s counsel had provided ineffective
assistance with respect to a particular evidentiary issue, the
likelihood that that error changed the outcome of the trial is
hardly "substantial." See Cullen, 131 S. Ct. at 1403. The
state’s case against Elmore was built on numerous pieces of
evidence which subsequent findings did not draw into ques-
tion. The irony of this case is that the majority lambasts the
state PCR court for "considering less than the totality of the
evidence," ante at 155, while ignoring or diminishing the
state’s total arsenal of evidence against Elmore at the same
time. See id. at 160 (dismissing the "bloodspots" on Elmore’s
clothes, his "thumbprint on the back door frame," the evi-
dence of his "guilty conscience," and "Gilliam’s account of
ELMORE v. OZMINT 183
Elmore’s spontaneous jailhouse confession" as "flimsy"). By
attempting to divide and conquer discrete evidentiary issues
while ignoring the rest of prosecution’s case, it is the majority
— and not the PCR court — which has "unreasonably dis-
counted evidence" by "minimizing its import and evaluating
it piecemeal." See id. at 155. The unfairness of calling the
state court out for what is manifestly the majority’s own fail-
ing only underscores the injustice of today’s decision.
2.
In the face of all this evidence, the majority is forced to fall
back on Elmore’s conspiracy theory that multiple members of
the South Carolina law enforcement system framed Elmore.
Once again, this accusation is not supported by the findings
of any previous court. According to this account, Officers
Coursey and Henderson removed the incriminating pubic
hairs from Elmore while he was detained and then Agents
Parnell and DeFreese lied about recovering this evidence from
Mrs. Edwards’s bed. See id. at 48-49 n.16, 132-133. Officer
Henderson then "planted" blood matching Mrs. Edwards’s
blood type on Elmore’s "pants and shoe." See id. at 95, 127.
What is more, Agent DeFreese misreported the fingerprints
on Mrs. Edwards’s toilet and exterior door frame as unidenti-
fiable, yet another example, as the majority puts it, of "police
ineptitude and deceit." Id. at 159. According to Elmore, these
prints belonged neither to him nor to Mrs. Edwards and would
have been exculpatory if DeFreese had been honest. Id. at 35.
Finally, SLED Agent Wells "negligently or knowingly misre-
ported" the contents of Item T as being solely blue fibers. Id.
at 159. Ultimately, the majority concludes, the "evidence
leads one to distrust the competence or motivations of the
police investigators." Id. at 160.
While this story may make for a good movie, it does not
stand up as a piece of legal analysis or bear resemblance to
reality. For one, the majority reverses multiple factual find-
ings, including witness credibility determinations, made by
184 ELMORE v. OZMINT
the state PCR court. Once again, we can only overcome these
factual findings "by clear and convincing evidence," 28
U.S.C. § 2254(e)(1), and we can only dismiss these credibility
determinations if the PCR court made a "stark and clear"
error. Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008).
Such showings have not been made here.
With regard to the pubic hairs, Agents Parnell and
DeFreese testified that Agent Parnell collected that evidence
from Mrs. Edwards’s bed. The majority attacks this testimony
by treating the quantity of hair found on Mrs. Edwards’s bed
with incredulity and imputing ill motives for the agents’ fail-
ure to photograph the bed or put the sheets in the record. See
ante at 158-159. But the PCR court that heard this testimony
expressly found that Parnell and DeFreese "credibly testified
about the existence and discovery of the hair."
There was no "clear and convincing" evidence suggesting
this determination was incorrect. 28 U.S.C. § 2254(e)(1).
Agent Parnell consistently testified that he discovered "almost
a rectangular area of hair" that was "approximately thirty
inches across by approximately eighteen inches up and down"
and "running diagonally across the bed," and the PCR court
found this testimony to be credible. Parnell also repeatedly
admitted that his decision not to photograph the bed was an
"oversight," but not an act done for conspiratorial reasons.
Parnell’s account was additionally corroborated by Agent
DeFreese, who, as the PCR court found, "testified that he was
present and assisted Agent Parnell when the hair was seized
from the victim’s bed." And far from plotting to lie about the
pubic hairs to incriminate Elmore, Parnell testified that he was
"mistakenly under the opinion they were Caucasian" until
Agent Wells informed him otherwise.
As for the decision not to take the sheets into evidence, Par-
nell explained that he believed they had little evidentiary
value given the lack of stains. This is hardly proof of a police
conspiracy. The PCR court put it directly: "the speculative
ELMORE v. OZMINT 185
presentation of the other witnesses that they normally seize
such items does not create a Sixth Amendment violation."
And as for the quantity of pubic hairs, Agent Wells explained
during Elmore’s 1984 trial that only four of the hairs fell out
naturally; the other forty-one were pulled out by force. One
can only imagine the kind of battle between a rapist and his
victim that would lead to such an injury.
Turning to the blood on Elmore’s clothes, the PCR court
rejected the notion that Agent Henderson had planted the
incriminating blood on the basis of Agent Barron’s testimony.
The state court found that Barron testified "[c]learly" and
"without equivocation" he "would not have given the [clothes]
stains to Tom Henderson," but instead maintained control
over the evidence until trial. The majority nevertheless seizes
on a dispute in the PCR proceedings over whether the labora-
tory records suggest that Henderson removed these items
from the lab prior to Barron’s analysis. See ante at 61, 94-95.
But the PCR court had already resolved this dispute in favor
of Barron. After hearing witness testimony on the issue, the
PCR court found that Elmore’s clothes were brought to the
SLED lab on January 20, 1982, whereupon "Barron received
the evidence and cut out the specimens prior to the return of
the coat and jeans to Tom Henderson" on February 3. The
majority’s dismissal of the state court’s acceptance of Bar-
ron’s interpretation without a compelling reason for doing so
is yet another example of its refusal to show a modicum of
deference.
As for Agent DeFreese’s alleged misrepresentation of the
fingerprint evidence, the state PCR court treated his earlier
testimony that the prints were unidentifiable as an honest mis-
take at worst. While noting that it was "regrettable" that
Agent DeFreese concluded the fingerprint on Mrs. Edwards’s
door frame was unidentifiable in 1982, the PCR court con-
cluded that fact "does not support [Elmore’s] rhetorical
assault on his reporting and testimony." As the state court
pointed out, DeFreese simply used a higher threshold for
186 ELMORE v. OZMINT
identifying prints than one of Elmore’s experts did. It then
noted that even Elmore’s own experts disagreed over how
many prints were identifiable, but that this fact did not mean
they somehow perjured themselves. After "viewing the credi-
bility of the witnesses based upon the entire record," the PCR
court determined that it "must reject [Elmore’s] assertions"
that DeFreese testified falsely.
As for Agent Wells’s claim that the contents of Item T
were solely blue fibers, the PCR court found that he did not
"knowingly fail[ ] to disclose" this evidence. Of course, it is
inconvenient for the majority’s conspiracy theory that it was
Agent Wells himself "who discovered the missing evidence
and reported the discovery" to the South Carolina Attorney
General’s Office, see ante at 112, and that Wells repeatedly
"offered himself for cross examination." But inconvenient
facts are apparently momentary obstacles for the majority,
which once again, without listening to any testimony, has
decided peremptorily that law enforcement officers are bad
actors despite findings to the contrary from the judicial officer
who actually heard them.
Apart from ignoring its proper role in the context of collat-
eral attack, the majority also fails to provide a plausible
motive for this supposed conspiracy. At most, it claims that
Henderson planted blood on Elmore’s clothes because his
mother was "a longtime neighbor of Mrs. Edwards" as well
as an acquaintance of Jimmy Holloway. See ante at 44-45, 94.
But it never explains why these local connections would com-
pel Henderson to single out Elmore of all people to take the
blame. Nor does it explain why four other law enforcement
officers — Coursey, Parnell, DeFreese, and Wells — would
decide to go along with Henderson’s scheme. And it does not
begin to explain why a jail administrator like Arlie Capps
would induce an inmate to perjure himself in order to convict
Elmore. The majority neither asks these questions nor pro-
vides any answers.
ELMORE v. OZMINT 187
3.
If this rampant speculation were not enough, the majority
then slanders a deceased and presumptively innocent man by
essentially accusing him of the grisly murder of Mrs.
Edwards. Following Elmore’s lead, the majority suggests that
Jimmy Holloway murdered his longtime neighbor and friend
and then "staged" the "circumstantial evidence of a Saturday
night death." Ante at 158. This charge is, to quote the PCR
court, a "shocking assertion" and "gross speculation."
There are three possible reasons for pinning this heinous
crime on Holloway. Not one stands up to the slightest scru-
tiny. First, according to Elmore’s expert Vincent Scalise, Hol-
loway’s conduct surrounding his discovery of his mutilated
neighbor was "very, very strange" and ultimately "suspect."
But what exactly did Holloway do to incur such suspicion?
On Monday, January 18, he stopped by Mrs. Edwards’s house
to check on his elderly neighbor. He noticed the Sunday and
Monday newspapers laying on the ground, despite the fact she
had told him she was leaving for a trip on Sunday morning.
Concerned that she might be ill, Holloway knocked on the
back door, which suddenly opened. Entering the residence, he
noticed that the house was at high temperature and that the
TV was on at a high volume. Venturing further, he discovered
that Mrs. Edward’s commode was stained with blood and that
there was a knife and large amount of blood on the bedroom
floor. At that point, Holloway went next door to the home of
Mrs. Clark — another one of Mrs. Edwards’s neighbors — to
"see if something had happened to her and [if] she was in the
hospital." Upon finding out Mrs. Edwards was not in the hos-
pital, Holloway returned to the house with Mrs. Clark in tow.
To avoid contaminating the scene, he carefully stepped
around the pool of blood and donned a pair of woolen gloves
before he opened the closet door. After he discovered his
neighbor’s mutilated body stuffed in the closet, Holloway left
the house with Mrs. Clark and they called the police.
188 ELMORE v. OZMINT
As the PCR court found, this behavior revealed nothing
more than the fact that Holloway was a "legitimately con-
cerned neighbor who feared that something had happened" to
an elderly woman and friend. Even Scalise conceded as much,
noting that many of Holloway’s actions on Monday were
those of a concerned neighbor and that it was "not unusual"
for someone coming across a crime scene to get another per-
son before proceeding any further. We should be the last to
presume to dictate what the normal response of a worried
neighbor stumbling upon evidence of foul play should be, par-
ticularly when the only court to hear testimony on the matter
found that it was normal.
Second, as the majority points out, Agent Henderson "con-
firmed that Holloway had been an early suspect." Id. at 43.
But the only reason for that classification was that Holloway
discovered the body. According to Scalise himself, as a matter
of basic police procedure, "in most cases" the first suspect is
the "person that finds the body." There was nothing more to
suggest Holloway’s guilt, and Henderson soon ruled him out
as a suspect as the evidence pointed increasingly to Elmore.
In any event, it would be helpful if the majority could
explain exactly why Holloway would ever brutally rape and
murder his longtime neighbor and friend. But it offers no pos-
sible motive to support this astonishing charge, nor is there
any indication of one in the record. In contrast, Elmore had
a very clear reason for murdering Mrs. Edwards that Saturday
night. As he confessed to Gilliam, "he went there to rob the
lady, and she started screaming, so he had to kill her."
The third and perhaps real reason for Elmore to pin the
murder on Holloway is the simple fact that he is no longer
alive. Unlike Elmore, who is still with us and represented by
vigorous counsel, Holloway can no longer speak for himself
nor has he anyone to argue on his behalf. But while it may be
tempting to purchase Elmore’s freedom at the cost of an inno-
cent man’s good name, it is profoundly unjust.
ELMORE v. OZMINT 189
D.
At the end of the day, no less than three separate courts
have reviewed and rejected Elmore’s claims of prejudice. And
not one of them has ever made any finding that would suggest
that any alleged errors by Elmore’s counsel were prejudicial.
Now, for the first time since Elmore’s conviction over a
quarter-century ago, two fine colleagues have come to the
opposite conclusion without hearing a minute of witness testi-
mony and in the face of all the evidence available. In spinning
this tale of deceit, fabrication, perjury, and corruption, the
majority has unfairly impugned the South Carolina criminal
justice system — directly in the case of its law enforcement
officers and indirectly in the case of the prosecutors and
judges who turned a blind eye to malfeasance of this magni-
tude. Seldom have so many been besmirched by so few. If
this framing of Elmore actually took place, it would be worth
all the opprobrium the majority could heap upon it and more.
But the legal system places its faith in evidence and those
who see and hear it. While no system of factual findings is
perfect, the regime of appellate highhandedness and specula-
tion is far worse. This road is no path to justice, not in any
whole and rounded sense. In light of all the evidence avail-
able, the notion that the state PCR court incorrectly applied
Strickland is simply implausible. The idea that it committed
an "error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement," Richter,
131 S. Ct. at 787, is beyond the pale.
III.
This sad decision is only compounded by the fact that it
could have been so easily averted had the majority paid atten-
tion to controlling precedent. Just last term, the Supreme
Court in Harrington v. Richter, 131 S. Ct. 770 (2011),
reversed a federal appellate court’s use of the writ of habeas
corpus to set aside a conviction on the grounds of ineffective
assistance of counsel. I suppose we should be grateful that
190 ELMORE v. OZMINT
this recent and relevant case merits a courtesy mention by the
majority, for that is all that it gets.
Richter could not be more on point. Like Elmore, Richter
was convicted in state court for murder despite his contention
that another person — in his case, a drug dealer named Joshua
Johnson — manipulated the physical evidence against him.
See Richter v. Hickman, 578 F.3d 944, 976 (9th Cir. 2009) (en
banc). Like Elmore, Richter sought relief from the state court
system following his conviction on the basis of Strickland,
arguing that his counsel provided ineffective assistance "for
failing to present expert testimony" on the forensic evidence.
Richter, 131 S. Ct. at 783. The California Supreme Court
denied relief. Id. Then, like Elmore, Richter filed a habeas
petition in federal district court, which again denied him
relief. And, like Elmore, he was finally able to find judges
who agreed with his position on appeal. Id.The Supreme Court reversed. It was emphatic in its holding
that "habeas corpus is a guard against extreme malfunctions
in the state criminal justice systems, not a substitute for ordi-
nary error correction through appeal." Id. at 786 (internal quo-
tation marks and citations omitted). Applying the doubly
deferential approach mandated by Strickland and AEDPA, the
Court concluded that the state court could have determined
that Richter’s counsel was effective even though he had "not
consulted forensic . . . experts or introduced expert evidence."
Id. at 788. As the Court observed, "Reliance on ‘the harsh
light of hindsight’ to cast doubt on a trial that took place now
more than 15 years ago is precisely what Strickland and
AEDPA seek to prevent." Id. at 789 (quoting Bell v. Cone,
535 U.S. 685, 702 (2002)).
More importantly, the Supreme Court then held that the
state court could reasonably have found that Richter was
unable to show prejudice. The Court noted that apart from the
forensic evidence, there was enough circumstantial evidence
available to allow a state court to eliminate the possibility that
ELMORE v. OZMINT 191
Richter was prejudiced. Noting Richter’s "shifting story" and
"the lack of any obvious reason" for Johnson to tamper with
the physical evidence, the Court concluded that there was
"ample basis for the California Supreme Court to think any
real possibility of Richter’s being acquitted was eclipsed by
the remaining evidence pointing to guilt." Id. at 792.
The majority references Richter, as it must, but then pro-
ceeds to distinguish the case on the ground that the forensic
evidence here "was always and obviously vital to the State’s
case." Ante at 146. My colleagues miss the larger point. If the
California Supreme Court’s application of Strickland in Rich-
ter was reasonable, then the South Carolina PCR court’s
application of Strickland here must be so as well.
For one, the PCR court’s opinion was far better supported
than the state court opinion in Richter. Whereas the California
Supreme Court dismissed Richter’s claim for relief in a one-
sentence order, the PCR court here issued a 183-page opinion
responding to Elmore’s numerous claims. While a state court
need not provide a justification for its decision for the pur-
poses of § 2254(d), Richter, 131 S. Ct. at 784-85, when it "ex-
plain[s] its reasoning with some care, it should be particularly
difficult to establish clear and convincing evidence of error."
Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010).
More importantly, on the question of prejudice, the circum-
stantial evidence in Elmore’s case provided more than an
"ample basis" for the PCR court to conclude that any chance
of Elmore’s acquittal "was eclipsed by the remaining evi-
dence pointing to guilt." See Richter, 131 S. Ct. at 792. In
addition to Elmore’s "shifting story" regarding his where-
abouts on Saturday night as well as "the lack of any obvious
reason" for Holloway to murder Mrs. Edwards and the police
to frame an innocent man, see id., the already-strong circum-
stantial evidence against Elmore was cemented, inter alia, by
his confession to Gilliam, his pubic hair on Mrs. Edwards’s
bed, and the blood on his clothes matching Mrs. Edwards’s
192 ELMORE v. OZMINT
blood type. The problem with Elmore’s case is the sheer
strength of the evidence against him, not the failure of counsel
to remove that boulder from the road. Perhaps the day will
come when we all realize that habeas corpus confers no free-
wheeling warrant to retry a case on appeal, see id. at 786, and
the Supreme Court can rest from reiterating this basic point in
case after case. Unfortunately, today’s decision shows that we
still have a long way to go.
IV.
Thus far, I have discussed facts and deference, for those are
the most concrete failings of the majority’s decision today.
But the real injustice of this case occurs on an individual
level. Thanks to the majority’s efforts, Mr. Elmore may go
free because the crime he committed took place almost three
decades ago. Perhaps Elmore believes that because so much
time has passed since the murder, he should simply be let go.
My distinguished colleagues in the majority respond to the
dissent with rhetoric and a protestation that they are not doing
what in fact they are doing—overturning factual findings and
credibility determinations of the state system that painstak-
ingly heard the evidence in this case. But at the end of the
day, our system is indeed grounded on facts and evidence. If
the state courts had defaulted in their job, that would be one
thing, but it is hard to find a case that received a more thor-
ough review under the well-settled Strickland standard than
this one did. If respect is not accorded the careful conclusions
and precise findings of the state court in the case at bar, then
I am hard-pressed to see the circumstances in which the
majority would extend respect. Contrary to my brothers’
rejoinder, I have not the slightest hesitation in embarrassing
any person or institution so long as that embarrassment is
grounded in the raw materials of judicial process, not dis-
pensed from the speculative perch on which we sit. The
majority says it doesn’t "credit Elmore’s evidence," ante at
163, but it discredits the courts assigned to weigh that evi-
ELMORE v. OZMINT 193
dence and assess it. Visiting reputational harm is not some-
thing federal courts do lightly. Before insinuating that law
enforcement officers are "inept and corrupt," id. at 162, or
that "the real perpetrator was Holloway," id. at 163, the
majority should be able to point to some finding or some rul-
ing by those who actually heard testimony that that might
have been the case. It is little enough to ask.
Before this court grants Elmore relief, we should pay pass-
ing thought as to what happened to Dorothy Edwards on the
night she was raped and murdered. According to Dr. Sandra
Conradi, the forensic pathologist who performed Mrs.
Edwards’s autopsy, the body of the seventy-five-year-old vic-
tim "was covered with injuries of all sorts, including stab
wounds, blunt traumatic injuries," "abrasions," and "bruises."
Her lower arms were extensively damaged, most likely from
her attempts to shield herself from attack. Despite her resis-
tance, she was stabbed repeatedly in the head and neck and
suffered multiple lacerations to her ears as well as the inside
of her mouth. Her left cheek was crushed in as well. She also
sustained thirty-three lesions on her chest area, most likely
inflicted with a pair of bottle tongs, and two-thirds of those
injuries occurred prior to her death. Her ribs were fractured,
the front part of her chest had caved in, and her right lung was
torn. After estimating Mrs. Edwards sustained roughly
"seventy-five separate injuries," Dr. Conradi concluded that
she could not recall, in her "fifteen years of experience, seeing
as much trauma and as varied trauma as in this particular
case."
The more heinous the crime, the more necessary it becomes
not to lash out and affix blame, but the long, thorough layers
of review accorded Mr. Elmore’s case do not portray a system
acting in vengeance or in haste. It is right and good to believe
in mercy and forgiveness for those who commit even the most
cruel and brutal acts. But that redemption is not rightfully
ours to bestow, and the criminal justice system does not serve
its own humane, protective purposes by slipping into amnesia
194 ELMORE v. OZMINT
on something like this. Law does not permit it, nor should it.
Not on this. Not on this.
I would affirm the judgment.