by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
Ricky Rector, a brain-damaged man who killed a police officer, put the gun to his own head and shot out the front part of his brain. Rector was tried by an all-white jury and sentenced to death. The logs at the prison show that in the days and hours leading to his execution, Rector was barking at the moon, howling like a dog, laughing inappropriately, and claiming he was going to vote for Clinton in the [forthcoming] election. . . . Ricky Rector had a habit of always putting aside his dessert until later in the evening, and then, before he went to bed, he would eat it. After they executed Ricky Rector, they went to his cell and found that he had put his pecan pie aside. He had so little appreciation for what death meant that he thought he was going to come back after the execution and finish his pie.
Even someone whose mental acuity was that compromised would no longer be spared—by either party. And that was a change. “The use of crime by people in both parties to get elected has resulted in a non-debate,” Bright said. “In Texas, candidates argue about who is most for the death penalty. In Georgia, who is most for the death penalty. There is no one on the other side.”
Bright insists this has spilled over into the judiciary and the legal system, ultimately corrupting our courts. It’s an interesting argument; it goes back to the fundamental thinking behind our legal system, that truth emerges best in an equally matched adversarial system. Are the sides equally matched when it comes to public defenders (and their resources) and prosecutors (and their resources)? Are juries a representative sample of the American public and both sides of the death penalty debate?
Bright concluded his talk by telling the aspiring lawyers this story about Georgia:
I recall a hearing in Coweta County, Georgia, in James Ford’s case. The prosecutor had used most of his jury strikes to get all the African American people off the jury. The case had been remanded for the prosecutor to give his reasons for the jury strikes. . . . [He would be asked,] “Well, now, did race have anything to do with it?” And the prosecutor, under oath, would reply, “Oh, no, race had nothing to do with it.”
I was struck by it. I thought, he knows he’s lying. I mean, you don’t strike nine out of ten black people out of coincidence.
He knows he’s lying. The judge who was presiding had been a prosecutor himself. That’s how he got to be a judge; he had struck all the black people from the jury when he was a prosecutor. He had taught this prosecutor how to do it. He knew the prosecutor was lying. He knew how the game was played, he had played it himself most of his career.
We know he’s lying. Then I thought about the people out in the courtroom, whether they are white or black, everybody in that courtroom knew that the prosecutor was lying.
I thought this is not a court of justice. This is a court of vengeance. We are here not for justice, but for a different agenda. That is the thing we have to remember, that so long as we have courts of vengeance, we will never have courts of justice.
Because there is both anecdotal evidence and hard data indicating that African Americans in general are more likely to be against the death penalty, they are less likely to be seated for a capital trial. This, then, has the unintended result of tipping the scales in capital cases further toward a white majority. “While plenty of African Americans favor capital punishment, a significantly higher number of people in the black community mistrust the government or the government’s use of the death penalty,” says Adams. Indeed, a 2007 Pew Center study reported that 51 percent of African Americans opposed the death penalty, compared to 27 percent of whites. And, edging closer to an exploration of why that is, a 2008 American Friends Service Committee survey of African Americans in Missouri discovered that 90 percent “believed that the death penalty is unfairly applied based upon race and/or economic status of the defendant.” This attitude is especially true in the Deep South, where the death penalty disproportionately affects people of color.
Whether it is their mistrust of the government or their deeply held religious beliefs opposing the death penalty, these folks’ opposition makes them ineligible to serve on juries. “This creates an even wider rift between black and white in a death penalty jury,” says Adams. The recent rash of well-publicized exonerations based on DNA has further eroded support for the death penalty among African Americans. “So the panel becomes even more skewed and even more evangelical and white and on the right of the political scale,” he said. “So even in conservative counties like Newton, Georgia, a jury tends to be way to the right politically, compared to the community, and likely has fewer people of color.”
As noted earlier, support for the death penalty has been eroding. Between the Innocence Project and many well-publicized exonerations based on DNA, public opinion is shifting. This is true based on data—but anecdotal experience is also telling. Adams, deeply absorbed in his death penalty work, talks to people about it all the time—in stores, on planes, standing in lines—and these days he’s noticed a decidedly libertarian slant. “You talk to a lot of folks about the death penalty now who say, ‘I just don’t know if I trust the government,’” he said. “And a lot fewer people say to me, as they used to, ‘How can you do that, defend those murderers?’”
In the Rodney Young trial, similar forces are at work. Despite the fact that Newton County, Georgia, is 41 percent African American, the jury had only two black members out of twelve—one male and one female. The minute this jury was seated, Young’s chances of avoiding the death penalty plummeted.
Race matters. “If you have one African American male juror, the chances of the defendant getting a death sentence go down 40 percent,” says Scott Sundby, a professor at Miami University School of Law and a Capital Jury Project researcher who has interviewed hundreds of capital case jurors in the aftermath of their deliberations. When I speak to him on the phone about the Rodney Young trial, he is intrigued. “Just to give you the counterpoint to that, if you have five white males on the jury, the chances of death go up 40 percent.” With African American women jurors, the chances of a death sentence go down—but not as dramatically as with black male jurors.
“The reason this is true,” he says, explaining the discrepancies in verdicts, “is we found African American jurors tend to be more distrustful of police testimony, so if there is a dispute over facts, they can be more likely to identify with the defendant’s life story.” He notes that it is often an African American juror who is making the case for life—as opposed to the death penalty—for an African American defendant in the jury room. “Sometimes the white jurors say, ‘Come on, we all have rough childhoods,’ or ‘How did getting involved with drugs lead to murder?’ But if an African American juror with knowledge of the neighborhood where the defendant grew up can and does step in and say something, it can lead the conversation down a different path. And white jurors often listen to that black juror. They say, ‘Who am I? What do I know of that?’”
That said, the most powerful voices for death can be African Americans, Sundby says, so it’s hard to make generalizations. A lot depends on where the minority juror’s life lines up with the defendant’s—and that can be a complicated pattern of cause and effect. “If the African American defendant’s life really parallels that of an African American juror, growing up in this same neighborhood with gangs, and he is looking at this life of violence that led to killing, that juror could go, ‘Hey, that was me and I didn’t end up doing that!’”
Jury dynamics are complicated. Throw in the issue of mental retardation, and the outcome grows even harder to predict. In the last few decades, because of real progress in education for the mentally retarded and the success in teaching life skills, it has grown harder to prove mental retardation and to explain that the lapses in cognitive thinking really might mean this forty-four-year-old person is essentially thinking like a nine-year-old. “Advocates for mentally retarded people have been working hard to make their lives better, helped people get jobs putting labels on cans, gotten rid of the old language like ‘imbecile,’ and argued—and shown—a perso
n who is mentally retarded can do the basics of life, meld into society,” Sundby says. “But when a defendant in a capital trial is mentally retarded, this makes it hard to persuade jurors that a ‘mildly mentally retarded’ person can have a severe disability. Yes, they can drive, yes, they can put labels on cans, but their ability to think through things before acting is limited. Their disability affects their decision making.” Sundby sees a deep irony here. “As we very admirably help mentally retarded individuals integrate into society, in a case like this, we lose sight of the true restrictions mental retardation puts on someone in terms of making them a follower, or leading them to rash decisions without being able to foresee the consequences.”
As interesting as the Rodney Young trial itself is, the recesses between testimony also prove revealing. At one point, as district attorney Layla Zon finishes questioning a witness—and lets her response hang in the silence of the room for a few moments—a woman juror sniffles into a tissue. Noticing her weeping, the judge calls a brief recess and the jurors file out of the room.
Instantly, the formality of a trial, a life on the line, slips away as if this were a movie set and the cameras had just stopped rolling. The public defender, Romond, unbuttons his suit jacket and sighs, putting his hands behind his head to contemplate the many problems he faces here. An investigator pops a butterscotch candy in her mouth. The elderly couple who, as part of their religious mission attend every death penalty trial in the state of Georgia to support the defendant’s family (lately, with the slew of capital trials, they have had to split up to cover all the bases), abandon the padded corduroy chair cushions they bring each day to soften the impact of the hardwood pews—and make a beeline for the bathroom. A bailiff slumps from his attentive, standing position into an office chair in the back of the courtroom, legs outstretched, rotating absently back and forth. The court recorder fishes her cell phone from her purse to show the prosecutors a photo on her screen. (A child? A dog? It’s hard to tell.) “Idn’t that cute?” she asks. The assistant DA Melanie Bell coos at the image. An officer from the sheriff’s department chats with a local preacher watching the trial, questioning him about his burgeoning congregation, his plans for a bigger church. “Probably easier to move to an existing space than build?” he says. “For sure, that’s true,” the pastor agrees. “We’ll find something. God is on our side.” (Between God and the slew of foreclosures in financially hard-hit Covington, this seems likely.) Out in the hall, Rodney’s mother sings the praises of the barbecue she just had for lunch to anyone who will listen. “Where did you go?” someone asks. “Can’t recall,” she says, fishing deep in her purse in case she saved the receipt.
It is a curious thing, as anyone who has watched a trial has doubtless observed, how fluidly people move from murder to the mundane. It’s not, I suspect, the callous impulse that it seems on the surface, but rather a desire to return to the more manageable ephemera of daily life. Just as at a funeral or viewing, mourners maintain a grieving decorum for the requisite time, but then, naturally, compulsively, thankfully grasp at any strand of conversation that takes them away from the dreadful solemnity of the moment—the high price of gas, the new Lowe’s going up on Route 1, the deceased who once penned the most beautiful thank-you note when he was six—those participating in such a capital trial are likewise relieved to abandon the drama and dreadful solemnity that death injects in the conversation.
This reaction could be viewed as incongruous, but it could also be seen in a different light—a sign of the natural goodness of people that they must struggle so hard to maintain the focused fury that drives a murder trial. The casual chitchat that punctuates the pauses in the formal record might be viewed as a sign that we can’t live our lives on this heightened dramatic plane, that passionate love as well as passionate hate will wane. And as I watch those attending the trial file out the center aisle, I notice that Gary’s grandmother Annie Sampson, teary eyed after her testimony, dropped a wadded tissue, and that Rodney Young’s sister, who clutched a tissue of her own in one hand, bent to retrieve Sampson’s tissue and hand it back to the elderly woman. Sampson thanks her, they smile, and I probably overinterpret this as a sign that our powers of empathy will ultimately overwhelm our desire for revenge. Will compassion, mercy, and politeness prevail here in the courtroom—and also in the jury room?
I began to wonder whether the death penalty is protection against that impulse, the natural impulse to let go of some of the intensity and fury that follows the death of a loved one. Maybe the death penalty itself is a formal way to gird ourselves against this instinct to forgive, and get on with things. We must do this, quickly exact vengeance—death for death—while the anger is still fresh and raw and sharp, knowing the danger of it fading with time.
Empathy is dangerous; it undercuts everything.
“We began this trial with the stark, sobering reality that Gary Jones was no longer with us,” says public defender Teri Thompson as she stands to deliver the closing argument on Friday, February 17, 2012. Tall, slender, and elegant, she is composed and speaks without pacing. She looks at the jurors’ faces one by one as she summarizes the defense, trying to read them, hoping to connect. “We began this trial with the sobering reality that Doris Jones . . . had to do something no mother should have to do: bury a child. We began this trial learning about the value of Gary’s life and what he meant to those who loved him.”
Thompson knows she must acknowledge the reality of the situation, and she does that forthrightly—quickly getting that out of the way. “And when we started this trial, Ms. Zon, the district attorney, showed you picture after picture for you to focus on the tragedy, on the horrifying last moments of Gary Jones. And never, ever, for one moment will we minimize this crime or what Gary meant.” She pauses. “But it is with the lens of someone who is mentally retarded that we want you to see all of the evidence, the same tragedy, the same events. . . . And through that lens, you learned that when he began high school in the ninth grade, as all the kids shuffled to their new moments of high school, Rodney Young entered high school in the ninth grade but sat in a classroom on the Upper B Hall, reading from a third- and fourth-grade book.” She reminds them that he was more than “just the kid that wasn’t the brightest bulb, Rodney Young was referred to by that district as ‘educable mentally retarded.’”
The defense’s biggest challenge is the fact that Rodney went to college after high school. Teri Thompson wrangles with that in her closing, anticipating the state’s arguments and trying to subvert them. “Now, I expect the state to tell you, to argue to you . . . he went to vocational school. No, he didn’t. There is no evidence of that. Well, he went to college. College? College? Coach Cwik talked to us a little bit about college and what that looked like. He told you how that community of teachers that you heard from rallied around him and helped him do the application. He told you that in order to get into college, Rodney took the SAT, and he described for you that out of 1,600 possible points, Rodney scored 220 on verbal, and he got that for signing his name.” She reminds the jury that, yes, Rodney got an A in psychology, but the semester before he took basic reading skills at college and got a D. “You see, when Rodney went to college at eighteen, he was still struggling to read. . . . So as college students do, as they do, bustle here and run to and from class, Rodney the football player, the star football player from Bridgeton, who that community of teachers wanted so much for him because he tried so hard, and it was that big, athletic football player that sat in a college classroom learning how to read.”
She also anticipates his employment history will work against him. “I also expect that because he worked at Aunt Kitty’s, he couldn’t be mentally retarded. Well, the state’s own witnesses just told us, it was a job putting labels on a can. He applied the glue. He took old glue off, and for eight hours a day, five days a week, he put labels on a can. Rote. Routine. Repetitive.”
She hits a few more bases and then concludes simply, with their plea, “We ask you t
o find that Rodney is indeed responsible, but that he is guilty but mentally retarded.”
“Ms. Zon,” the judge says, turning to the district attorney.
“Thank you, judge,” she says. “Members of the jury, what the state would ask you to do is look at this case through the lens of truth. The lens of the truth. Not the lens of a group of teachers who have come in, look back fondly twenty years ago, [to] what they knew of Mr. Young back then. We heard the testimony of all those teachers and coaches. And God bless teachers and coaches who invest in young people’s lives. God bless them for spending the time that they did with each of these individuals that they had in their classes that had either special needs or disabilities or perhaps learning impairments or perhaps just emotional and just problems they have in their own life. . . . It’s great that these teachers care about these young people. But this trial is about the truth. This trial is about the evidence. . . . What you should listen to is the evidence in this case, which means that we don’t decide this case on emotion.” She reminds them of the questions she asked during the jury selection process. “Could any of you, did any of you have a problem making a legal judgment? Not a moral judgment, but a legal judgment? And you all said you could. And that’s the issue here. . . . And members of the jury, the evidence that has been presented in this case does not support the conclusion that the defense has in fact proved to you beyond a reasonable doubt that he is mentally retarded.”
She pulls up a PowerPoint presentation—the time and energy and resources that the district attorney’s office has are clearly apparent—and she runs through a definition of mental retardation and, as a foil, a list of Rodney’s accomplishments. As she wraps up her closing statement, she admits, “There’s a lot of things about that murder, about what happened in that residence that we are never going to know.” The only person who knows is the defendant, she says. “He knows what happened in that house. He knows how many times he struck Gary, and he knows that he had no problem getting down here, committing that murder, that he planned it, that he waited outside that house, stalking them for the right opportunity to go in there and brutally attack Gary Jones with the force that everyone has described, the force of a man that it would take four men to take down. This man, Gary Jones, had no defense. He was brutally murdered in his residence. The state has proven that now beyond a reasonable doubt. So now it’s up to you to decide if the defendant has proven beyond a reasonable doubt that he is mentally retarded, and we submit to you that he is not.”
