A Question of third-party guilt

At some point in its term beginning in October, the U.S. Supreme Court will hear Holmes' appeal. The case presents interesting questions dealing not only with the handling of evidence, but also with the rules for a third-party defense. South Carolina's Supreme Court found "overwhelming evidence" of guilt. Holmes' attorneys contend that they never had a chance to establish reasonable doubt.

This was an ugly case, made especially so in the midst of the Christmas holiday season. At a local hospital Mrs. Stewart told police that a black male "in his late 20s" had forced his way into her apartment at about 6:15 a.m., that he had beaten her severely, raped her, and then robbed her of $40 before running away. Three police officers and two paramedics came to the crime scene. They put certain items of evidence into paper grocery bags. The items included bloodstained sheets and a pillowcase, a stained nightgown, a pink paper towel.


It transpired that Holmes had been involved in an "unruly" disturbance near the Stewart residence at 4:43 a.m. Police had recognized him before he fled the scene. They arrested him that same afternoon on charges of robbery and rape. When Mrs. Stewart died of her injuries two months later, the charges were raised to murder in the first degree. Holmes has continued steadfastly to deny his involvement.

The prosecution's forensic evidence was impressive. Fibers consistent with Holmes' clothing were found on the victim's bed sheets and nightgown; DNA testing excluded 99.99 percent of the relevant population; Holmes' tank top contained a mixture of his blood and Mrs. Stewart's. The Supreme Court of South Carolina, with one judge dissenting, concluded that "he simply cannot overcome the forensic evidence against him to raise a reasonable inference of his own innocence."

For the past 15 years, counsel for Holmes have defended him vigorously: They contend that the forensic evidence was mishandled, contaminated and contrived as part of the arresting officers' plot to convict an "unruly" black man. More to the point, they argue that the trial court wrongly refused to admit any testimony pointing to "third-party guilt." The third party, said the defense, was Jimmy McCaw White, a 22-year-old black male.

Four witnesses were prepared to place White near the scene of the crime at about the right time. Four other witnesses would testify, if permitted to speak, that White had made statements incriminating himself. One of these witnesses would have quoted White directly: "He say that he liked old women and that, yeah, he did what they say he did and you know, that somebody else was locked up for it."

The trial jury would hear none of this proffered defense.

This is the general rule on third-party guilt: Such exculpatory testimony will not be admitted if it serves merely "to cast a bare suspicion upon another" or raises only "a conjectural interference as to the commission of the crime by another." Before such evidence can be received, the defense must establish "a train of facts or circumstances" that tends clearly to identify another person as more probably the guilty party. The rule prohibits counsel from "indulging in conjectural inferences that some other person might have committed the offense for which the defendant is on trial."

Holmes' lawyers did their best to meet these tough limitations, but Justice James Moore, writing for the majority, found the DNA evidence especially convincing. Justice Costa Pleicones, dissenting, thought the banned testimony would have raised a "reasonable inference" of Holmes' innocence. He would have remanded for a new trial.

Half a dozen law professors have filed a friend-of-the-court brief supporting Holmes' plea. In their view, "an abundance of competent and reliable evidence" could be marshaled to show that Jimmy White was more probably the killer.

The case involves an especially ugly crime — an old woman, a young punk, a violent assault, a prolonged and painful interim before her death. The inferences of rigged evidence make bad matters worse. Before the state kills Bobby Lee Holmes, let us be sure that the state is killing the right man.

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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