Free Anatomy of Injustice by Raymond Bonner Page A

Elmore was telling the truth, that he was indeed innocent. “In my judgment the son of a bitch did it,” Anderson said years after the trial. “I was convinced of that at the time, and I still am.”
    Nonetheless, Anderson had an ethical obligation to defend Elmore vigorously. Even if he puts no witnesses on the stand and presents no evidence, a defense lawyer in a criminal trial must test the state’s case, require it to prove the defendant guilty beyond a reasonable doubt. The obligations of the defense counsel and prosecutor are notably different. The prosecutor “must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commissionof the crime,” Justice Byron White wrote in 1967, in
United States v. Wade
. “But defense counsel has no comparable obligation to ascertain or present the truth.” White continued: “Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty.” Ethical restraints that operate on the prosecution do not apply to the defense counsel. He need turn over nothing to the state that will help the state’s case, while the prosecution is required to turn over all evidence to the defense. During cross-examination, a prosecutor is not supposed to seek to undermine a witness who he knows is telling the truth; a defense lawyer may. “As part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth,” Justice White wrote.
    In capital cases, the obligation of the defendant’s lawyer is even greater. “While defense counsel has the obligation to render effective, quality representation in all criminal cases, defense counsel in a capital case must, given this extraordinary penalty, make extraordinary efforts on behalf of the accused,” the ABA says in its Criminal Justice Standards. With his client’s life at stake, “defense counsel should endeavor, within the bounds of law and ethics, to leave no stone unturned in the investigation and defense of a capital client.”
    Anderson and Beasley did virtually nothing. They consulted no independent experts, no pathologists, no fingerprint specialists. They didn’t search for witnesses; didn’t talk to any of Mrs. Edwards’s neighbors; didn’t interview Mr. Holloway, who had found the body. They didn’t even read the police interviews with the witnesses, which the prosecution had turned over to them as required by law. Ever since the time that defense lawyers first began to appear in criminal cases under English common law, their obligation has been to force the state to prove its case. Anderson and Beasley accepted the state’s case more than they challenged it. They stipulated to the admissibility into evidence everything Jones wanted to introduce—hair, fingerprints,Elmore’s blue jeans and coat—ninety-eight items altogether. This meant that Jones didn’t have to establish the “chain of custody,” that is, who had had possession of each item and where it had been, in order to rebut any chances of tampering. “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,” Anderson explained.
THE JURY
    W ITH THE S IXTH A MENDMENT , the Founding Fathers guaranteed an accused the right to trial by an impartial jury, and in 1968, the Supreme Court said this right applied to cases in state courts as well. “The guarantees of a jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered,” Justice White explained in
Duncan v. Louisiana
, which held that even if a person was charged with only a misdemeanor, he had the right to a