After 21 years on death row, Clark Richard Elmore has an execution date: Jan. 19.
But by then the Bellingham man who raped and murdered his girlfriend’s daughter, Kristy Lynn Ohnstad, can expect clemency, not death. Gov. Jay Inslee pledged two years ago to halt executions in Washington while he’s in office, and he was just re-elected in November.
Since that pledge Elmore is the first of Walla Walla’s nine death row inmates to exhaust every appeal in the higher courts. His execution had been postponed indefinitely, as his attorneys appealed to the state Supreme Court, then to the federal level. The U.S. Supreme Court declined to hear his case in October, though two justices signed a vigorous 15-page dissent. The 9th Circuit Court of Appeals denied a rehearing Dec. 9.
Whatcom County Prosecutor Dave McEachran spoke with Inslee this week to persuade him to make an exception to his death penalty ban – a long shot, McEachran conceded to a reporter. Nonetheless he drove to Olympia on Tuesday with the case file and crime scene photos, he said, to show the governor the horror the jurors saw before condemning Elmore to die.
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On that Monday morning in 1995, Kristy missed her bus to Fairhaven Middle School. An eighth-grader, she complained to her stepfather about having to go to school. She knew him as James Lee Dickey, a fake name Elmore had lived under for a decade. They argued. He told her she was grounded. Often when she got in trouble, she would remind him that he had molested her when she was 5 years old and that she could turn him in anytime. He said he’d drive her to class. Instead he drove past the school and past Lake Samish.
South of the lake on a secluded dirt road, Elmore sexually abused Kristy for the last time April 17, 1995. He raped her over her pleas and tears, in the back of a rust-colored van. Once it was over he strangled her with his hands until she passed out. He took a 9-inch metal skewer from a red toolbox and drove it through her skull. He tied her belt around her neck, put a plastic bag over her head and, to be sure she was dead, beat her head with a sledgehammer. He dumped Kristy’s battered body in the woods, naked except for a shirt and socks.
She was 14.
At night Sue Ohnstad reported her daughter, a peer counselor for at-risk and homeless teens, never came home after school. She feared that Kristy ran away.
The next day Elmore threw a girl’s backpack from his van into a ditch along Samish Way. A passerby found it; inside were a sweatshirt and a phone number for Sue Ohnstad. So he called her. Quickly the stepfather, an auto mechanic calling himself James Dickey, showed up distraught and asked for the backpack. But the resident waited for a police officer to arrive and take it.
The teen was missing for days. “James Dickey” lambasted police in the media for not trying hard enough, he said, to find her. He rounded up neighbors for his own search party, leading them into people’s yards, anywhere but where he’d dumped the body. On local television news, he begged Kristy for a phone call.
“Just come home,” he said into the camera. “Just come home.”
Detectives taped a 45-minute interview with “Dickey” on April 21, as the search pressed toward the south side of the lake. He told them he didn’t think Kristy was still alive. Afterward at a search command post, a detective brought out the backpack in front of the stepfather, and he turned pale and shaky like he needed to vomit. He agreed to let detectives examine his van. A cursory search inside revealed no sign that the girl had been there. (Elmore had scrubbed it.)
Hours later, at 8:30 p.m., a sheriff’s search team found a body face down beneath a plastic sheet. Two flecks of red paint on the corpse were later linked to Elmore’s tool box. Police waited to announce the discovery, to see if the killer would return to the scene. In the morning a detective phoned Kristy’s mother. “James Dickey,” she said, had gone out to run errands.
By then Elmore was gone. He drove south, bypassing the crime scene by hundreds of miles. Police found the rusty van abandoned in SeaTac. From there Elmore took a bus to Oregon and spent the night under a bridge in Eugene, where he grew up. He walked to the Lane County Courthouse to get an ID in his twin’s name. As he walked, he reconsidered. He caught a flight home. At 9:30 p.m. Sunday he was calling 911 from a phone at the Bellingham police station.
He needed an officer to lock him up, he said, for killing Kristy.
Over two decades of appeals Elmore has never disputed his guilt. Detectives taped a one-hour confession where he detailed the killing and the cover-up. He considered killing Kristy “just about every time” she reminded him of the sexual abuse, and he wished, he said, that she would have turned him in before the murder.
The prosecutor, McEachran, charged Elmore with first-degree aggravated murder, a crime with two possible punishments: death or life without parole. At a first appearance in court Elmore announced, “I’m guilty. I did it.” The court commissioner cut him off. A public defender was appointed.
Through his attorney Elmore expressed remorse in the media. He did not want to drag Kristy’s family through a trial. At his first chance Elmore pleaded guilty as charged, with no negotiations, knowing the prosecutor would seek a death sentence.
In Washington state, a jury decides the penalty in a capital case. It’s like a second trial. Public Defender Jon Komorowski had never tried a death penalty case. On the advice of consultants, the defense practiced in front of two mock juries and dissected their deliberations on video. The mock jurors wanted to see remorse. So remorse, and no excuses, became the theme of Elmore’s defense.
As his court date approached, Elmore seemed less and less remorseful to the defense team. He then received a devastating letter from Kristy’s mother. Elmore told his attorney he had no one left to apologize to. Komorowski felt he was running out of time to get Elmore’s most viable defense in front of a jury.
In a one-hour presentation, Komorowski called a defense investigator and three judges as witnesses. The judges had presided over Elmore’s early hearings. They recalled his general demeanor in court: “somewhat upset,” “overwhelmed” and “dejected.” The investigator, Michael Sparks, gave an overview of Elmore’s life.
McEachran played the confession to the jury. He showed Elmore’s felony record from two decades earlier, for stealing checks, stealing furniture and stealing motel appliances. He showed slides of the autopsy and Kristy’s bludgeoned skull.
Jurors returned a verdict May 3, 1996, finding no good cause to show Elmore leniency. Elmore is the only person ever sentenced to death in Whatcom County. He has been on death row the second-longest of any Washingtonian.
On the case’s dizzying path to the U.S. Supreme Court, attorneys have raised voluminous concerns about what was said, or wasn’t said, in the penalty phase.
▪ The defense advised Elmore to wear shackles in court, to show jurors he accepted responsibility. Could that have prejudiced the jury against him?
▪ A jailhouse minister, who was not called to the witness stand, attested that in jail Elmore was “wracked with anguish and dripping with remorse.” Should other witnesses have been called, to better illustrate Elmore’s regret?
▪ Jurors heard a redacted confession in the courtroom. Was it a violation of due process for them to have unsupervised access to the tape in the jury room?
None of those concerns, or any other, was enough to upend the sentence. Attorney Jeff Ellis, who has led recent appeals by Elmore, did not return a reporter’s calls to his listed phone numbers.
Dissenting justices in both the Washington State and U.S. supreme courts were swayed that the trial defense should have done more to investigate Elmore’s potential brain damage.
Elmore grew up next to an airstrip in Springfield, Ore., where soil samples showed toxins at 4,500 times the maximum allowed by state law. He watched planes crop-dusting, or refilling with pesticides, from his backyard. He was exposed to those powerful neurotoxins in his youth, and perhaps in the womb. As a young recruit and repairman in the Army during the Vietnam War, he worked with Agent Orange; he was knocked out in a severe beating in the 1970s in Texas; and in 1984 he almost died in a car crash that left him unconscious, with post-traumatic seizures.
All of this put him at risk of brain damage, and further tests showed dysfunction in Elmore’s frontal lobe, a part of the brain that can be “the brakes” for impulsive behavior, appellate attorneys argued.
“And had the jury known that Elmore – who had never before been convicted of a crime of violence and felt searing remorse for the heinous act he committed – might be brain damaged, it might have sentenced him to life rather than death,” agreed U.S. Supreme Court Justices Sonia Sotomayor and Ruth Bader Ginsburg.
Before the penalty phase, three mental health experts were consulted by the defense. None was a neuropsychologist, an oversight in the view of the appellate attorneys. Opening the door to arguments on a mental disorder could backfire, the defense decided, after one mental health expert delved into Elmore’s attraction to young girls. Jurors heard no remarks on mental health.
Later in post-conviction proceedings, Komorowski attributed his oversights to inexperience in capital cases.
So far Inslee has not taken any action in the case. He can grant a reprieve or commute the sentence to life without parole. In spite of the governor’s ban, the death penalty remains on the books in Washington. Once Inslee leaves office, another governor can choose to restart executions at the maximum security prison in Walla Walla, where Elmore has been locked up for two decades.
Last year McEachran wrote to Inslee saying state law requires a case-by-case review of capital cases, not a blanket reprieve for everyone on death row. He asked to meet if Elmore’s appeals ran out. Inslee granted a meeting this week. For about a half-hour, McEachran said, he implored the governor to focus on how Kristy suffered.
“This is not some philosophical issue, it’s reality,” McEachran told a reporter. “He’s had his due process. We’ve due-processed him to death.”
McEachran doesn’t believe he changed the governor’s mind.
Opponents see death penalty cases as exorbitantly costly and time-consuming, not to mention the debatable morality of a state-sanctioned killing. Compared with many states, Washington has executed few inmates, five in the past 60 years. One man on Washington’s death row has been exonerated, since the Death Penalty Information Center started tracking death sentences in 1973.
Just this week the center, a nonprofit against capital punishment, released an annual report showing striking declines in death sentences, executions and public support for the death penalty nationwide.
“It’s a paradoxical moment in the history of the death penalty in the United States,” read a summary of the report in The New Yorker. “The number of executions has dwindled to just a few, but the voters, even in the most liberal states, seem to want the punishment to remain on the books.”
McEachran contends that, as an elected official, he cannot pick and choose which laws to uphold. Inslee, he said, should uphold the law, too.
The death penalty divide runs straight through those closest to the Elmore case. Superior Court Judge David Nichols, who signed off on the death sentence, penned an editorial against the death sentences for The Seattle Times in 2012.
Soon after Kristy was killed, her biological father, Steven Ohnstad, told the media he supported death for Elmore: “He didn’t (just) kill my daughter. He brutally murdered her and then threw her away like a piece of garbage.”
Kristy’s mother, however, said death was “too good” for Elmore. She wanted him to rot in prison for life. She wanted him to suffer like Kristy suffered. As the case dragged on, she wanted the nightmare to end.
“We just wanted it all to be done and over with,” Sue Ohnstad told The Bellingham Herald in 1995. “It’s just going to cause more pain and suffering for us. We’ve had enough.”