by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
“Could Rodney read?” asks defense team member Teri Thompson.
“He could read but not very well, third- or fourth-grade level when he was in tenth grade.” Hendricks went on to say that he worried a lot in those days about whether African American students were rightly assessed and placed—or whether being disadvantaged and discriminated against, they were sometimes too quickly shuffled into special ed. His voice catches and his eyes fill with tears; Rodney is looking across the courtroom right at him. “I was certain that Rodney’s placement was correct,” he says. He describes a day when he was teaching and Rodney was really struggling with a basic math assignment. “Rodney was having some difficulty and I was trying to help him,” Hendricks says. “We got into a conversation about football.” Rodney was a running back and a powerful star player on the varsity team. “Then I guided him back to the activity and walked away. He was still having trouble.” Hendricks’s eyes fill again as he speaks. “I could see that he was beginning to cry and it was at that point I realized how very much trouble he was really having with this work.”
Thompson points out that Rodney was actually accepted into college. He got a 220 on his SAT—you automatically get 200 for filling out your name correctly on the form. Still, he was admitted to Norfolk State University and received a football scholarship. He went for almost two years and then went to a vocational school instead.
Hendricks says that a local man served on Norfolk’s board and likely got him the scholarship.
Then the prosecution takes a turn. “Would it surprise you to hear that he got an A in psychology?” Layla Zon asks.
“Yes,” Hendricks replies. “It could very well be that he didn’t do the work himself.”
“Would it surprise you that he kept down a job all these years?” Zon continued.
“That would not surprise me, no.” Hendricks says Rodney worked in a summer youth program at the school every year where the kids did landscaping and construction work. Anything rote and straightforward, Rodney could do.
Next, a special ed teacher named Karen Denise Owens-Jones testifies. She taught for twenty-two years in Bridgeton and first had Rodney when he was fourteen years old and in ninth grade. “I’m not very comfortable using that term—educable mentally retarded—but at that time, that was the term that was used,” she says.
“Did you ever see Rodney’s [IQ] test results?” Bell asks when she cross-examines her.
“Yes, I saw them.”
“What was his score?”
“It had to be in the range of 60 to 69 to be in that class, but I can’t remember the specific score from thirty years ago.”
“Were you in the room when the test was administered?”
“No.”
“So you couldn’t know whether [the tester] followed protocol?”
“No. Are you asking me, was she a professional?”
“No, I am asking, were you there?”
“No.”
When Rodney’s teachers speak, it is the only time during the trial when he looks up from his close study of the patterned carpet to meet someone’s eye. All his teachers mention his wrestling and football prowess, and most say, because one year the team he was on went all the way to the state championship, that they saw every varsity game he played. They smile at him as they say this—and then look away when they say things, as Owens-Jones does, such as, “Rodney could tell me it was 1 or 1:30, but quarter of the hour . . . that he couldn’t do. When digital clocks came out, I tell you, I was hopeful for those kids.”
Another teacher, Jill Swaim, says that she taught remedial math to the special ed kids. “But Rodney didn’t have the skills. He just couldn’t do it, it was too advanced.” She says that lots of the teachers were loyal sports fans, herself included, and went to all the football games. “We’d follow the kids and encourage them,” she says. “They were so needy and some didn’t have family. We were his family.” She recalls getting a late-night phone call from him once. “‘Miss Swaim, I need a ride,’ he said. ‘Okay, where are you?’ I thought he was in Bridgeton somewhere. He was at a bus station in Delaware. I said, ‘Give me your brother’s number and we’ll go down to get you.’” She doesn’t know exactly what happened. “He could have gotten off the bus to get a drink of water and not thought that far ahead.”
Layla Zon insists on facts, not anecdotes. “You specifically don’t know what disability Mr. Young had because you did not test him, is that correct?”
“Correct,” Swaim agrees.
“In all your years of teaching did you ever see a child who was misplaced?”
“How would I know?”
“You never saw a kid in a remedial class who should have been in another class?
Swaim hestitates, but then admits, “Yes.”
The defense team is trying desperately to show Rodney is mentally retarded, but they can’t produce the evidence of an IQ test—and are banned from using experts, unless they want Rodney’s Fifth Amendment rights compromised.
Another teacher, Mary Beth Galex, says Rodney reminded her of a big teddy bear. “A part of me always felt so guilty. He was so good, I was worried people would take advantage of him,” she says. “He showed me not to give up. He didn’t let his mental abilities hold him back. . . . Rodney was just a special person.”
Later in the evening, at the Holiday Inn Express, seven of the Bridgeton staffers gather in the hotel lounge. I bring two six-packs and chips, someone brings a couple of bottles of wine, ice cream, lemonade, Doritos—and the Georgia Capital Defenders pick up the tab for dinner: pizza and wings from Domino’s.
The teachers are excited, jazzed, a bit on edge as they ease down from the formality and high drama of the afternoon. Like most Americans, who rarely encounter the courts except on TV, they quickly sense the significance of trivialities as presented against the sharp backdrop of death. The mundaneness of our daily lives slips away for a moment and, as the stakes go up—he could be put to death; death haunts us; we too will die someday—there is nervous chatter. They want to unwind with a drink and talk about the trial, how they did, what they remember about Rodney, what they remember about their other students, what they remember about the year the football team went to state for the first time in twenty-six years, what they remember of that championship football game, what Rodney was like on the field—“three, four, five people couldn’t pull him down,” Jill Swaim marvels—and what they themselves were like thirty years ago when they were young.
Everyone has changed from their fancy court clothes—suits, jackets, ties, skirts, heels—back into the everyday—jeans, sweatpants, tennis shoes, T-shirts. The subdued voices of court go up several notches as they cut each other off and insist on being heard.
Romond is nowhere to be seen.
Finally, an hour or two later, he and his girlfriend, Jennifer, show up. She has driven down from Charlottesville, Virginia, where she is a week away from defending her PhD dissertation, to watch Romond’s first capital trial. “After hearing him talk about this case for so long, it’s exciting to finally see it happening,” she says. She chats with all the witnesses, knows everyone’s name, and they know hers.
Romond confesses that he went back to his hotel room and had a “moment,” crying. He is under a lot of pressure and screwed up today in some way he is reluctant to reveal to a reporter. Some of the witnesses, too, threw him for a loop. He worries that he should have prepared better. He wishes he had had time to personally interview people before putting them on the stand. He knows that is good protocol—but he’s also juggling eight other death penalty cases at the same time. The stakes are so high for Rodney—death—and that thought, Romond tells me, never leaves his head. Rodney is counting on him, and he is scrambling to do his best.
In some sense, the gathering has the kind of camaraderie of a team thrown together, an unlikely set of intimacies from folks who wouldn’t ordinarily mingle. As they debrief, one of the teachers, Mary Beth Galex, slumps down in a chair for a moment
and sighs. “It’s just awful being up there on the stand saying he is retarded and incapable of this and incapable of that,” she says. “After spending all these years telling these kids they can do anything and they are no different than anybody else.” There are murmurs of assent and a hush falls as they wonder, they have hurt his feelings, but have they saved his life?
Covington, Georgia, is a curious place—a mix of old and new South, a mix of middle-class newcomers and strapped old-timers, a mix of black and white who only rarely actually mix. It is a town where the local paper, the Covington News, appears to finance its seven pages of news with thirty-two pages of classifieds—thirty-one of them relentless back-to-back foreclosure notices the week the Young trial began. While the murder of Gary Jones took place four years ago, a recent spate of violence, including a murder six days earlier, had editors pleading with locals to play nice, please don’t murder each other. “Over the last couple of weeks our community has been rocked with one tragedy after another,” editors wrote in their oddly pitiful February 15, 2012, editorial. “We understand that people in our community are going through some intense stress and pain because of the current economic situation we are in. . . . We can understand the fear that is brought about by the loss of a house or other property.” Editors begged readers: “If you are reading this and feel you are at your wits’ end, seek medical help. Don’t let your emotions get the best of you and destroy or end someone else’s life. You can also seek help from our creator at no cost. We are positive you will receive some comfort for your pain.”3
The modest, low-slung Covington News office sits next to the courthouse, a modern building, only twelve years old. A bailiff tells me with some pride that the court has already outgrown its home—crime being what it is, apparently—and the five superior court judges have to share three courtrooms. The new courthouse sits a block from the old courthouse, which itself sits on the town square.
The old courthouse, a majestic brick building, anchors the Covington town square. The square, on this February dusk as the Young trial plays out, is a little downtrodden with a desperate, hopeful air. It is lined with locally owned businesses—Lee’s Fashions, Pom Pom & Pirouettes, Fletcher’s Jewelry—that were likely unable to spring for the higher rents at the new shopping center up the way. Faded awnings and hand-lettered signs on glass (“Bertha’s Beauty Lounge, Hair Weeving, Styling, & Cutting”) attract sporadic customers who languidly crisscross the square, never seeming to number more than six at any given time. They are a mix of black and white, like the county itself.
The stores flank a central grassy square with two magnolia trees, an American flag, and a giant statue of a confederate soldier. Erected in 1906, the marble soldier stares into the distance while resting his hand on the barrel of his musket. Beneath, under a relief of crossed swords, the inscription reads: “No sordid or mercenary spirit animated the cause espoused by those to whom this monument is erected, or inspired the men who bravely fought and the women who freely suffered for it. Its final failure could not dishonor it. Nor did defeat estrange its devotees.”
In his memoirs, General W.T. Sherman mentions a march through this same Covington Square in November 1864. “[W]e passed through the handsome town of Covington, the soldiers closing up their ranks, the color-bearers unfurling their flags, and the bands striking up patriotic airs,” he wrote. “The white people came out of their houses to behold the sight, in spite of their deep hatred of the invaders, and the negroes were simply frantic with joy.”4
In the jury selection process, the deck is stacked against public defenders whose clients are primarily people of color. It takes a very experienced lawyer to finesse this issue. “We win and lose these cases in jury selection,” said Chris Adams, former head of the Georgia Capital Defenders, who now does death penalty work as a private attorney in South Carolina. “And it is very different from ordinary voir dire. The case law is different and very complex.”
As a result, both the ordinary rules governing jury selection and the special rules governing jury selection in capital cases both conspire against seating a jury that truly represents a fair cross section of the community. That is true in Georgia—and in plenty of other states. “There tends to be a whitening effect in voir dire,” said Adams, explaining that by the time you’ve excused anybody with a record, you’ve often tilted the scales toward middle-class whites. “We know that police target public housing, which tends to be African American. If I am an eighteen-year-old drinking beer or smoking pot and I’m picked up by the police, I’m likely to get a ride home and cops will talk to my parents,” said Adams, who is white. “Whereas an African American kid will be taken to the police station, arrested, charged—and end up in the system.” Fifteen years later, that kid can be a pastor at a church and a pillar of the community, but he’s not eligible for jury duty.
Economic disparities exacerbate this. The dismissal of potential jurors who are not able to afford time off work or can’t serve because they have day care issues disproportionately affects people of color. “You can have a beautiful cross section of people that truly reflects the community when potential jurors are called in—and then the jury panel becomes significantly whiter than the community,” Adams said. “That is true in all cases.”
Add to this racially biased peremptory strikes where attorneys can exclude a juror based on the vaguest of reasons—not the brightest bulb in the pack, too strident, wears a cross necklace, wears a nose ring, wears pearls, wears patchouli oil—and things get tricky. Legally, jurors can’t be excluded based on race or gender, but in fact peremptory strikes open a door for lawyers to do just that. According to a June 2010 study by the Equal Justice Initiative, a nonprofit law organization in Montgomery, Alabama, juries grow increasingly lopsided at this point.5 The report, based on jury composition in eight southern states, found African Americans continue to be regularly excluded from juries for specious reasons. For example, the authors report that eight out of every ten qualified African Americans are struck from death penalty cases in Houston County, Alabama, while in Jefferson Parish, Louisiana, “there is no effective African American representation on the jury in 80 percent of criminal trials,” since blacks are struck from juries at three times the rate of whites (and it only takes ten jurors to convict a defendant there). Further, they found several instances of all-white capital juries in majority-black counties.
However, proving racial bias in peremptory strikes is extremely difficult. Given the wide latitude prosecutors have for legitimately eliminating potential jurors, in the rare instances when they are called on to justify their strikes, they easily drum up race-neutral explanations. (The Equal Justice Initiative report even documented prosecutor training programs that teach how to deftly mask bias.) Some of the acceptable reasons “correlate strongly with racial stereotypes.” The report’s authors explained: “Prosecutors frequently claim to strike African Americans because they live in a ‘high crime area’ (meaning a predominantly black neighborhood); are unemployed or receive food stamps; or had a child out of wedlock.”6
All of this is fairly well known in legal communities, but what is less understood is the additional tilt-toward-white that occurs in capital cases. In death penalty trials, jurors get asked a set a questions—called Witherspoon or Reverse-Witherspoon, based on a precedent-setting case of the same name—to affirm that they would impose the death penalty if the situation merited it or, conversely, to make sure they wouldn’t automatically vote for the death penalty every time, regardless of the circumstances. This was designed to exclude those who would never vote for death and those who would always vote for death. Legal scholars believed this would skim 4 percent of those at the ends of the spectrum. But that’s not what happened. According to Capital Jury Project research, more than 50 percent of jurors actually fall into those categories.
Over time, as feelings about the death penalty have shifted in the country so that fewer and fewer people support it, it has grown harder to pull together a
“death-qualifying” jury. So, even while opponents of the death penalty are seeing successes in changing some hearts and minds in the public, defense attorneys are losing more cases to juries that are further tilted to the political right.
As a nation, that puts us in a tricky spot.
Once, when delivering a talk about the death penalty at the Washington College of Law at the American University in 1995, Stephen Bright, founder and director of Atlanta’s Southern Center for Human Rights, mused about the evolution of morality.7 “There is a debate about the evolving standards of decency—or even whether there are evolving standards of decency—that mark the development of a maturing society,” he told the audience. “Are there some kinds of punishment that are beyond the pale: whipping, the stocks, capital punishment?” He told students that Alabama had recently brought back the chain gang, that the Commissioner of Corrections there spent $17,000 to buy three hundred pairs of chains. “You do not need to go to Singapore to find a chain gang. You can find one right there in Alabama.” What does this say about us as a country? “I was in a debate with someone recently about the evolving standards of decency, and I said, well, now, boiling in oil, whipping, the stocks; do you think those are still appropriate punishments today? He thought about it for a minute, and said, well, boiling in oil, no; whipping and the stocks, yes. That is something to think about. Are there some kinds of punishment that we do not have because of questions of decency, because of questions of expense, because of questions of effectiveness?”
Because Bright knows the death penalty is not going away anytime soon, he has worked all his life to point out the flaws in the system. Interestingly, he explains the clamor for death as something elected officials—politicians, of course, but also elected judges—have generated themselves, fighting a fear of being perceived as “soft on crime.” Before 1988, when George H.W. Bush famously used the Willie Horton ad (depicting a revolving prison door to show how his opponent let Massachusetts inmates out on weekend furloughs—and some committed further crimes) to help him win the election and portray Democrats as soft on crime, many Democrats, including presidential nominee Michael Dukakis, were opposed to the death penalty. By the time Bill Clinton rolled around, he was blithely trekking to Arkansas for Ricky Rector’s execution. Bright tells the students:
