Diana Holt, photographed by Joshua Drake
Andrew Cohen on the Death Penalty
The Atlantic's legal writer discusses this piece and explains why we are too human to make capital punishment work.
In our criminal-justice system, once a person has been convicted, no matter how shaky the conviction, the presumption of innocence disappears. The defendant is assumed to have had a fair trial. New evidence, even enough to sow a field of doubt, does not necessarily entitle a defendant, not even one on death row, to a new trial. The remarkable defense attorney Diana Holt learned these lessons the hard way after she took on the case of Richard Charles Johnson, in October of 1999.
Holt, then 41, had worked as an attorney at the Center for Capital Litigation, in South Carolina, a nonprofit that represented prisoners on death row. Blond, blue-eyed, physically slight, and intense, Holt had begun working at the center a few years earlier, while still in law school. Having overcome great hardships in her own life, she had acquired a singular reputation as somebody who would work indefatigably to save the lives of the condemned—which is why her former mentor at the center, John Blume, asked her to help with the Johnson case. She would work on it for the next three years.
The case dated back to September 27, 1985, when Johnson, a 22-year-old knockabout, hitched a ride outside Morehead City, North Carolina, with Daniel Swanson, a 52-year-old real-estate developer from suburban Washington, D.C. Swanson owned an RV, had a fondness for pornography, and was en route to Florida. The two soon stopped in South Carolina and picked up a couple of other hitchhikers: Curtis Harbert, a 20-year-old on the run after having stolen a car, and his companion, Connie Sue Hess, a 17-year-old who was into drugs and sex with truckers.
Travels With Charley it wasn’t. There was alcohol, lots of it, and a variety of drugs. In due course, Harbert, Hess, and Swanson ended up in bed together in the rear of the RV—at which point somebody shot Swanson in the back of the head.
After hiding Swanson’s body under a mattress in the RV, Harbert, Hess, and Johnson continued south, with Johnson at the wheel. Wiped out on drugs and booze, he wove all over the road, bouncing off guardrails, while Hess put on a show for passing truckers, rubbing her breasts up against the RV’s rear window. After a state trooper named Bruce Smalls pulled them over and began walking toward the RV, a door opened. Smalls stepped up to the door, and shots were fired at him. Leaving Smalls dead on the side of the highway, Johnson fled in one direction, Harbert and Hess in another. All were quickly caught.
Under questioning that night, Hess told the police that Johnson had killed both Swanson and Smalls. The next day, however, she changed her story, claiming that Harbert had shot both men. Two days later, still in police custody, she returned to her original story, which Curtis Harbert corroborated. At Johnson’s trial, the state didn’t call Hess, perhaps uncertain of what she would say on the stand, given her prior inconsistent statements. Foolishly, however, the defense did, and she fingered Johnson.
In separate cases, the state charged Johnson with the murders of Swanson and Smalls. Johnson pleaded guilty in the former case but not the latter. Investigators had found no gunpowder residue or other physical evidence implicating him in the murder of Bruce Smalls, but Hess’s and Harbert’s testimony helped sway the jury, which found Johnson guilty as charged. The murder of a police officer is a capital offense in South Carolina, a staunch death-penalty state that has been executing criminals since it was a colony, and the outcome was therefore inevitable: Johnson was sentenced to death.
So began a saga that would drag on for years, as so many death-penalty cases do. Initially, Johnson had cause for hope. In 1987, on appeal, the South Carolina Supreme Court overturned his conviction for the murder of Bruce Smalls, because the prosecutor in the case had made improper comments during his closing argument. But the reprieve didn’t last long. In 1988 the state tried him again and won another conviction. Once again, Johnson was sentenced to death.
Diana Holt took on the case 11 years later.
Her career path had been indirect, to say the least. Born in El Paso, Texas, in 1958, she had endured a harrowing childhood. For years her stepfather, Walter Belshaw, abused her sexually. As best she can remember, it started when she was 3 or 4. Her mother was about 20, Belshaw about twice that age. “If you want some milk,” she remembers him saying, “put your mouth here.”
Not surprisingly, given the circumstances, Holt didn’t do well in school, but nonetheless, in the sixth grade she decided she wanted to be a lawyer. Her stepfather mocked her ambitions. When he began teaching her to drive, he fondled her, saying that was what boys would do. He gave her drugs, entertained her at swanky bars, and took pictures of her naked. At the age of 17 she ran off with strangers and ended up in New Orleans, where an incident took place that she would keep secret for years, even from her closest friends and family. Nearly three years after she ran away from home, Holt returned to Texas, got married, got divorced, got pregnant, and then got married again—this time to an angry Vietnam vet who, Holt told the police, tried to kill her after an argument. (Only a defective firing pin in his revolver saved her life.) Holt divorced him and pressed charges, but the state declined to prosecute, telling her that it boiled down to her word against his, which simply wasn’t good enough. That he wasn’t even charged with a crime outraged Holt. The moment was a turning point for her. She decided to act on her sixth-grade dream and become a lawyer.
In 1986, Holt began taking courses at community college. She quickly revealed herself to be both smart and disciplined. After four semesters of straight A’s, she enrolled at Southwest Texas State University. She had recently married again and was pregnant with her third son, but still she managed to get straight A’s, to make the dean’s list every semester, and to graduate summa cum laude. She applied to law school, without much hope that she’d get in, given her past, but the University of Texas admitted her, in 1991. There, influenced by a couple of her professors, she became committed to representing men and women on death row.
In the world of appellate criminal defenders, “law lawyers” are ardent students of the Constitution, and of the Supreme Court cases interpreting it. In death-penalty cases, they might argue that their clients did not get a fair trial or were denied effective assistance of counsel; that the state failed to hand over exonerating evidence; that jury selection was biased; that constitutional provisions were violated. “Fact lawyers,” on the other hand, are those who search for evidence that either proves their clients did not commit the crime or, if they did, alters the details of the case significantly enough to spare their lives. By 1999, Holt had become a fact lawyer extraordinaire, an investigator’s investigator. No matter how deeply evidence was buried, she could find it. She also had an uncanny ability to get people to open up to her, and even to confess to murder, perhaps because of her diminutive size, which put them off guard, or because of her southern drawl, which would thicken noticeably when she felt it would help her gain somebody’s confidence.