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“They’re ready for me. Loaded for bear. I stayed away from them.”

Nov 23, 2011 “They’re ready for me. Loaded for bear. I stayed away from them.”

Criminal defense trial battle requires being as fearless and skilled as possible in approaching even the most formidable-seeming opponents. Edward Lee Elmore’s capital murder trial lawyer, unfortunately, exercised avoidance with forensic evidence:

Properly applied, the totality-of-the-evidence standard results in only one reasonable conclusion: there is a reasonable probability – that is, a substantial likelihood – that, but for his lawyers’ failure to investigate the State’s forensic evidence,Elmore would have been acquitted in the 1984 trial. See Strickland, 466 U.S. at 695 (“When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent [counsel’s] errors, the fact finder would have had a reasonable doubt respecting guilt.”); see 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 significantly weaker – prosecution case.

As it was, the 1984 jury heard only that the scientific indicators 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.

Elmore v. Ozmint, ___ F.3d ___ (4th Cir., Nov. 22, 2011).

Referring to the police investigators, [Elmore’s trial lawyer] 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

Criminal defense lawyers should try to reach the level of ability, skill, tenacity and fearlessness that they do not leave an opposing witness alone out of fear that the witness is “loaded for bear” or might have “tore me up.”

Edward Lee Elmore was convicted of murder and sentenced to death row. Finding that Elmore’s trial lawyer provided ineffective assistance of counsel under the United States Constitution’s Sixth Amendment, the Fourth Circuit, 2-1, granted him a retrial on November 22, 2011. Id. 

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