by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
When the closing statements are finished, the judge instructs the jury, reminding them, “If you find the defendant guilty but mentally retarded, then you must specify it in your verdict.” The jurors nod in assent and file out of court.
After they’ve left, the defense lawyers huddle around Rodney talking, while the judge prepares to question the defendant. As required by law, he asks him, “Are you satisfied by the defense provided to you?”
Rodney does not answer, looking over at Romond instead.
Thompson answers for him. “We have advised him not to respond.”
“Do you understand what I’ve asked?” the judge says.
Again, Rodney stays silent.
“Well,” the judge says, “we will again await a verdict.” He gathers his papers and leaves the court.
The defense lawyers, likely trying to leave room for Rodney to appeal based on a claim of ineffective assistance of counsel or some related matter, seem willing to fall on their swords if it can help the client. And Romond frets constantly that the lack of funding for capital defense in Georgia is jeopardizing the quality of their lawyering. It will take some time, but eventually he will reveal the behind-the-scenes machinations that are constantly going on regarding the fight for adequate funding in these capital cases.
It keeps him awake many a night, worrying. And now, as the jury sits deliberating, Romond frets, not knowing how to read their reaction to this, his first capital case. He has been working in the Georgia Capital Defenders office since 2008, but clients in his other cases have all settled, pleaded guilty, and avoided the death penalty.
For a while we stand around a small table in the miniscule witness room off the adjacent courtroom. This room is headquarters for the defense team. One wall is lined with boxes of files. Another wall contains bags, boxes, and briefcases. Crumbs are strewn on the floor, and the table holds several legal pads, a jar of peanuts, a bag of half-eaten pretzels, a pile of Peppermint Patties. As Romond and I stand there talking—there is no room to sit down—the rest of the defense team slowly drifts into the small anteroom. They listen and nervously nibble on junk food, all bemoaning this judge who never seems to rule in their favor.
“Wait a minute,” the young lawyer on a fellowship, Thea Delage, points out. “There was one time when he went our way.”
“Right!” Romond says. He high-fives Thompson. “You got juror number 25 dismissed!”
Indeed, moments before the jury was to begin deliberations, the judge responded to a days-old request from Thompson to have one of the jurors dismissed because of comments he’d made to the bailiff. The attorneys overheard him ask the bailiff if they were keeping an eye on the defendant. He looked agitated, the man said. He was apparently worried that Rodney would snap and attack them. (Chances are the aforementioned courthouse shooting by defendant Brian Nichols was on his mind.)
“No,” Delage says. “There was something else.” She snaps her fingers, trying to jar loose the specific memory. Everyone waits. No one can think of it.
I feel optimistic.
They don’t.
“There has never been a jury trial in the state of Georgia where the jury decided a defendant was guilty but mentally retarded,” Romond says.
“Really?” Delage says.
“I can’t think of one in the last ten years,” Romond says.
Thompson qualifies this: “There have been some habeas cases that have gone that way.” She refers to cases that were appealed, and won on appeal.
“Yeah, but not jury trials,” Romond says. “No juries have gone this way.”
A silence falls on the room. This is a discouraging fact. They knew it before, but they had clearly tucked it away in the back of their heads where it would not get in the way of their hopes. They slowly drift out of the room—pacing the halls, checking their e-mail, texting, talking softly with Rodney’s mother and sister—until it is only Romond and me in the room.
I apologize for asking Romond so many questions; I’m sure this is a stressful time.
“No, I’m glad of the distraction. Keeps me from thinking about the jury,” he says. “Maybe someday—thirty years from now—I’ll be some jaded old capital defender, but right now, I can’t see that.” He finds this whole process grueling and terrible. “The pressure of having someone’s life in your hands . . .” His thoughts drift off. He doesn’t finish his sentence. He mentions again that mistake he made yesterday that he does not want to elaborate on to a reporter, recalls that he yelled at a colleague about it. Several times, as he questioned witnesses, he knew he should have done better, could have known more, would have talked to them sooner himself. Coulda, woulda, shoulda. He tries again. “The stress—” he says, pausing, “I cried two hours last night.”
Twenty minutes later, a court officer taps on the door. “Verdict,” he says.
The jury has not deliberated very long; that is a very bad sign for Rodney Young.
For a moment, Romond doesn’t move. He exhales a huff of breath and his hands curl around the armrests of the office chair he sits in. He sighs again, then steels himself and gets up.
Back in the courtroom, Rodney’s mother, sister, daughter, and teachers stand on one side of the aisle as the judge enters. On the other side, the victim’s family stands, Gary’s mother, grandmother, girlfriend, and friends. The two elderly death penalty missionaries also stand; the woman holds a packet of tissues at the ready.
“Ladies and gentlemen of the jury, have you reached a verdict?”
“We have.”
“Y’all can be seated,” the judge says. “The verdict is as follows—” He announces to the silent courtroom Rodney Young has been found guilty on all counts, murder, felony murder, aggravated assault, and burglary. The words mentally retarded are not mentioned.
“Predicting whether a jury will sentence a person to die is a lot like predicting whether two people will fall in love,” wrote Scott Sundby in his fascinating 2005 book, A Life and Death Decision: A Jury Weighs the Death Penalty.8 Sundby, who has conducted more than seven hundred interviews with 165 jurors in forty-one capital cases in the aftermath of their deliberations, decided in 2005 to dig deep into one particular jury’s decision-making process. He did an extensive postmortem of jury deliberations in a convenience store murder in California, and made some curious discoveries about group dynamics in the jury room. He found jurors tend to fall into certain roles and cites several predictable archetypes: the idealist, the chorus, the holdout. If there is an outspoken holdout on the jury—typically one person who resists the death penalty while everyone else favors it—the group is almost certain to wear that person down completely.
It is a deeply troubling revelation. After all, our judicial system is founded on the idea that these twelve citizens, representing the morals and values of society, will hold on to those notions. That they are swayed shifts our understanding of the process and ought to make us think. How random is a trial outcome when jurors are so easily manipulated by the larger group? This happens most frequently not during the first phase, where guilt and innocence are decided, but during the second phase where the death penalty is decided on. In an interesting 2008 paper presented by Sundby and two Cornell University law professors called “Competent Capital Representation,” the authors break down the jury’s thinking as they evaluate evidence and testimony during the trial (phase one) and the sentencing (phase two). During the trial, jurors are asked to make a fact-based decision. (Did he commit the crime or not?) During the sentencing, jurors make a moral decision. (Does he deserve to die for what he did?)9 It is this latter question that jurors in Sundby’s book struggled with mightily.
Studying the thinking of the “holdout,” who is called “Peggy” in his book, Sundby says she interpreted the mitigating evidence differently. “Unlike the other jurors who saw individuals’ acts as basically free will choices between good and evil, Peggy saw individuals almost as human supercolliders, their personalities buffeted and shaped in unseen way
s by the numerous events, people, and influences that they come into contact with.” This made her open to hearing about the defendant’s childhood and other forces. When she saw a spark of his childhood self—and speculated about the trauma he likely felt after witnessing his brother’s death at age thirteen—she was willing to consider his humanity, and the small possibility of redemption. But it is very, very hard for a lone juror to defend this position if the larger group resists. The impulse to conform is nearly insurmountable.
To understand why the holdout juror in this particular trial—as in most trials—capitulated to the majority, Sundby revisited the psychology of group decision making. For example, in experiments in the 1950s, Solomon Asch asked people to compare the lengths of lines on two chalkboards. He presented one length of line on a board and then three lengths on another board of distinctly obvious different lengths. Alone in the room, people were able to easily pick which of the three lengths matched the solitary length on the opposite board. When put in a room with a group of “fake” subjects who all voted for the incorrect line, the subject went with the group 75 percent of the time even though the answer was obviously incorrect. “Further research has identified additional situations and factors that increase the likelihood that an individual will adopt the majority’s position and may help explain why so many holdouts eventually change their votes,” Sundby notes in his book.
The Asch experiments document the powerful sway of the majority when it comes to factual decision making; the effect grows even “more powerful when the question to be decided is based on values, especially if frequent and open votes are taken,” Sundby writes. “The psychological literature is rich with these types of findings about the human desire to conform, findings that often are counterintuitive. Most of us, for instance, when asked how we would respond if we were the test subject in Asch’s line study believe that we would resist the majority’s influence and give the correct response; yet research consistently shows that, in reality, most of us would yield to the majority’s judgment.”10 Researchers, studying brain waves, speculate that the desire to conform is psychological, but also, perhaps, physical. People’s brains respond to exclusion and rejection from the group the same way they do to pain from a physical blow, he writes. “As one of the researchers noted, it may be that as part of their evolution, humans developed a physical response of pain to the rejection by others as a self-survival technique to ‘make sure we don’t stray too far from the group.’”
This same powerful tug toward group conformity seems to play a role in Rodney Young’s trial. At the same time, a similarly powerful factor, the character and circumstances of the victim, likely affect the jury deliberations. Romond, who has read Sundby’s jury research, knows this will be a difficult challenge to overcome.
Sundby’s 2003 Cornell Law Review article examined how capital juries weigh worthy and unworthy victims.11 The Supreme Court established the role that victim impact evidence ought to play in the sentencing phase of a trial in the 1987 case Booth v. Maryland. Here, Justice Lewis Powell argued for the majority that “there is no justification for permitting [the death penalty decision] to turn on the perception that the victim was a sterling member of the community rather than someone of questionable character.” In a footnote, Powell further observed, “We are troubled by the implication that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy.” Sundby cites research indicating that, in the abstract, jurors were egalitarian and insisted the victim was not part of their decision. But when given hypotheticals—a child, a woman, respected person, stranger, troublemaker, criminal record, alcoholic, drug addict—they did make some distinctions. Fifty-three percent said they would be more likely to give the death penalty if the victim was a child. In contrast, only 3 percent said they would be “much more likely” to give the death penalty if the victim was a “respected member of the community.”12
On the surface, Sundby wrote, this decision was good news. Juries truly are impartial. “Yet, as is often the case with empirical research, honest answers to hypothetical questions sometimes do not match up with how individuals put a particular principal into action.” Indeed, Sundby says, “if we go a step further and look at what juries actually discuss in the jury room and how they focus on different victim attributes, it becomes evident that although jurors may value victim types equally in the abstract, when making the death penalty decision, they place great emphasis on the victim and his or her actions.” Sundby refers to the “There but for the grace of God, go I” reasoning. “In other words, jurors may not care in the abstract whether the victim was a banker or a welfare recipient,” Sundby explained. “They do care, however, if the banker was murdered while cruising a seedy adult bookstore late at night instead of during a robbery while honorably carrying out his duties at the bank.” 13
If they empathize or identify with the victim, they’re more likely to push for death. “If the victim was just minding his own business, the juror is thinking, ‘There, but for grace of God, go I,’ and the jury is more likely to come back with a death sentence,” Sundby says when I talk to him on the phone. The fact that Gary Jones was on his way home from church, “still in his church clothes” as the jury in the Rodney Young case hears repeatedly, can be a powerful influence on their thinking. “Whereas, if this was someone who was murdered when a drug deal went awry, or the victim was engaged in high-risk behavior, like prostitution, or hanging out at a biker bar, or whatever, those are the types of things where jurors say, ‘What do you expect, if you’re going to engage in this behavior?’ They don’t really identify with the victim,” says Sundby.
If they identify with the victim, the defense team’s job gets much harder. The lawyers must convince the jury that their client is a person worthy of mercy. The challenge is to create a fleshed-out portrait of a person, to tell the story of a life so well that someone—at least one person on the jury—can vividly see the defendant as a person (as opposed to the “animal” that the prosecution speaks of) and feels empathetic enough to suggest life in prison as a harsh enough punishment for the crime. But competent attorneys are not necessarily good storytellers. “If I was a defendant in this case,” Sundby says. “I would much rather have Shakespeare than Blackstone as my lawyer.”
Joseph Romond is not Shakespeare or Blackstone. He is a hardworking, smart, and dedicated lawyer who is trying his first death penalty case. He’s a nice guy—the jury doubtless senses that—and he cares deeply about his client’s fate. He asks all the questions needed to cast doubt and lay the groundwork for Rodney’s appeal, but to the layperson, such questions occasionally seem scattered, hint that he is grasping at straws, and never quite cohere into the empathetic portrait of Rodney Young that the jury needs to see in order to feel merciful at the sentencing phase.
Throughout this trial, Rodney Young is a question mark. Who he is, who he really is, remains impossible to decipher as the witnesses talk around him and he sits, silent and hunched forward, staring at the ground between his two feet. Very rarely does he look up; he never makes eye contact. The defense lawyers, of course, won’t let a reporter talk to him—who knows what he’ll say?—and they will not jeopardize his case. Rodney won’t take the stand either, likely for the same reason. Is he a sympathetic character? A monster? A loving father to his teenage daughter? A man who hits his girlfriend? A “man-child” who thinks like a boy in the body of an adult, as one of his old teachers insists?
This second part of the trial, the penalty phase, is all about telling Rodney’s story so the jury truly sees him. It is not altogether successful. Romond admits he has not had enough time to question all of the witnesses as thoroughly as he’d like. His mitigation investigator, Felicia Sullivan, who tracks down the folks in Rodney’s past and questions them about his life, has told him who has useful anecdotes and who is a good storyteller. But Romond admits funding limitations and a heavy caseload of similarly
pressing, high-stakes capital cases mean that he didn’t get to Rodney’s defense witnesses as soon as he’d liked—some of them have forgotten details years after the incident—and late go-aheads from his office concerning travel and expert witnesses in all the cases he carries are an endless worry for him. He knows this compromises the efficacy of his representation. He has spent the weekend agonizing over this, understanding that he has already lost the guilt-innocence phase of the trial by failing to persuade jurors of Rodney’s mental retardation, and he is determined to save Rodney from lethal injection. This is the part of the trial where, having dug deeply into Rodney’s past, the defense counsel will try to show mitigating circumstances, to create a portrait of Rodney that forces jurors to see him as a human being, a person valued and loved by his family and friends.
But have they done enough prep work? Romond wonders. He knows they haven’t.
His co-counsel, Teri Thompson, has been forced to prepare for three capital trials in the six months leading up to Rodney Young’s trial. One client was tried in September and October. One trial was slated for November and, after doing all the preparation for it, was put off until a later date by the judge. She tried a third capital case in January. In February, the Rodney Young trial started. Meanwhile, Thompson had five other death penalty clients whose cases she was juggling and Romond had resolved three capital cases, while carrying five other clients himself. In the past few years, Romond has geared up to explain on the record to judges that the Capital Defenders office has been too financially strapped to represent all their death penalty clients adequately, but his boss forbids this frankness.
