The U.S. Supreme Court said Monday, Oct. 17, it is declining to hear the death penalty appeal of Clark Richard Elmore, who was convicted in 1995 of raping and killing Christy Lynn Ohnstad, his girlfriend’s 14-year-old daughter, in Whatcom County.
The court’s decision drew a sharp dissent from Justices Sonia Sotomayor and Ruth Bader Ginsburg. They criticized the Washington Supreme Court’s rationale for upholding the death sentence and argued Elmore’s trial attorney – current Whatcom County public defender Jon Komorowski – failed to investigate evidence that the defendant had brain damage.
“A more experienced attorney encouraged Elmore’s lawyer to investigate whether Elmore had suffered brain damage as a young man,” Sotomayor wrote. “Instead of doing so – indeed, instead of conducting any meaningful investigation into Elmore’s life – Elmore’s lawyer chose to present a one-hour penalty-phase argument to the jury about the remorse that Elmore felt for his crime.”
As a result, jurors never heard that Elmore played in pesticide-contaminated fields as a child or handled Agent Orange pumps during the Vietnam War.
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Such mitigating evidence might have persuaded them to impose a life sentence, Sotomayor said.
Jeffrey Ellis, one of Elmore’s appeals lawyers, said he was disappointed the high court declined to hear the case and expected to ask it to reconsider.
Elmore pleaded guilty in the case in 1995. In a taped confession, he told police Ohnstad, 14, threatened to report him for molesting her when she was younger.
While driving Ohnstad to Fairhaven Middle School, Elmore stopped in the woods near Lake Samish. He raped and strangled the girl, beat her head with a sledge hammer and left her body.
When the teen was reported missing, Elmore organized a search for her and publicly criticized Bellingham police for not taking the search seriously. A Whatcom County Sheriff’s Office search party eventually found Ohnstad’s body near the south end of Lake Samish.
Elmore fled for Oregon, intending to steal his twin brother’s identity. He then returned to Bellingham and turned himself in six days after the slaying.
Judge David Nichols sentenced Elmore to death in 1996. That ruling came after objections from activists and the victim’s mother, who said: “Death is too good for him. ... He should get life without parole and suffer every day, like everyone else he’s left behind.”
Though Washington state has the death penalty, Gov. Jay Inslee imposed a moratorium on its use in 2014. He cited flaws in the system, including that some counties can’t afford to put on a capital trial.
Elmore is one of nine men on Washington’s death row at the state penitentiary in Walla Walla.
Elmore grew up in Oregon in the 1950s and 1960s and lived near an airport from which crop dusters regularly sprayed pesticides. Decades later, soil samples taken by the state found toxin levels more than 4,500 times greater than maximum amounts allowed by law.
He later worked on cars and oil pipelines, and regularly melted lead batteries. At 17, he left home to serve in Vietnam, where he repaired Agent Orange pumps without protective gear.
For sentencing, his lawyer had him examined by three mental health experts, but failed to call for neurological tests to assess any brain damage. Neurological tests performed for his appeal found a “marked inability to control his emotions and impulses,” which experts said could have contributed to his actions.
The Washington Supreme Court upheld the death sentence. The decision not to have the neurological tests done was merely strategic, the state justices said, and Elmore did not want his attorney presenting details of his personal life.
But that did not justify the lawyer’s decision against investigating whether Elmore was brain-damaged, Sotomayor said. “Elmore’s crime was horrific, but there was a dramatic difference between the mitigation that was presented and the mitigation that should have been presented.”