by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
“Both Teri and I are mentally and physically exhausted from the workload,” he will later confide. “If we had more lawyers and more money, we could divide up this work. It’s impossible to do the job when money for experts, etc., is lacking.” Romond describes the office as “triaging” capital cases due to the budget crisis. Whatever case is closest to trial gets resources for experts and witnesses, while others languish in a holding pattern. As cases drag on, witnesses forget details, move, fall off the grid, and sometimes die. “We’re robbing Peter to pay Paul,” he says, and the delays have all kinds of repercussions. First, investigations need to happen quickly when witnesses’ memories are fresh—and so that the lawyers can begin to plan the best defense. Second, experts get booked months and months in advance. If the good ones aren’t secured early, defense counsel is left scrambling at the last minute. Finally, when cases get delayed and delayed because they aren’t ready, the judges grow furious—and sometimes take it out on defense lawyers and their clients. “The judge says, ‘You’ve had this case for two years, why don’t you have your experts lined up?’” reports Romond. “They don’t want to hear about budget problems in your office.”
Romond is squeezed between what he learned in law school were best practices and the reality of his work as a capital defender in the state of Georgia. This disconnect haunts him, along with the ever-present knowledge that someone’s life hangs in the balance, there in that space between what should happen and what does happen in the courtroom. “Did Rodney’s case falter because of lack of resources? Yes. If we had the time and energy to adequately prepare things, it would look different,” he says. This weighs heavily on him.
And, while he likely wouldn’t take much comfort in it, the problem of inadequate funding—or unequal funding, really, between the public defenders and the rest of the criminal justice system—weighs heavily on other public defenders across the country as well. One 2011 report by the Justice Policy Institute, a nonprofit advocating justice reform, notes that defense “receives less funding than the prosecution in many jurisdictions, leading to significant inequalities in resources and services to defend people who stand accused.” Authors of the report insist that parity in funding, salary, resources, and workload “has been articulated in national standards by the Department of Justice, the Supreme Court and other experts,” and yet, funding for “public defense often fails to keep pace with that provided for prosecution.” For example, one 2007 study by the Spangenberg Group of Tennessee’s expenditures found that the prosecution spent $130 to $139 million in a single year on public defense cases, while the defense had less than half that amount, or $56.4 million. And the disparities can be measured in personnel differences as well. The report cites public defenders in Cumberland County, New Jersey, for example, who handle 90 percent of all criminal cases, “but there are twice as many lawyers and more than seven times as many investigators working on criminal cases in the prosecutor’s office than the public defender’s office.”
Such differences in funding levels have existed for years. Even when the salaries of prosecutors and public defenders are comparable—and they rarely are; district attorneys tend to make more than their counterparts across the courtroom aisle, especially when they stick around for several years—prosecutors spend more money overall on support staff, investigators, training, legal research, and costly expert witnesses. “Macro-level spending gives some glimpse of the lack of parity at the local and case level,” Wake Forest University professor of law Ronald Wright wrote in an article in the Iowa Law Review, which studied Bureau of Justice data on this topic.14 “A survey of 81 of the nation’s most populous counties in 1999 shows $1.1 billion spent on indigent defense services and $1.9 billion spent on prosecution services.”
Meanwhile, the Justice Policy Institute reports that over the last twenty-five years, “spending on public defense has increased, but it remains far below other criminal justice expenditures, including corrections and police protection.” Noting that in 2008 taxpayers spent nearly $14 on corrections (prison) for every dollar spent on public defense, the JPI authors speculate that, “[w]hile there are many contributing factors leading to rising incarceration, under-funding of public defender offices may be one of these.”
Even the Justice Department itself has long recognized this problem. “Indigent defense is an equally essential element of the criminal justice process, one which should be appropriately structured and funded and operating with effective standards,” said former attorney general Janet Reno at a February 1999 national symposium on indigent defense.15 She pointed out that public defense is not currently funded on equal levels with prosecution—and that creates huge problems. “When the conviction of a defendant is challenged on the basis of inadequate representation, the very legitimacy of the conviction itself is called into question. Our criminal justice system is interdependent: if one leg of the system is weaker than the others, the whole system will ultimately falter.”
And the stakes can be very high. This was something Romond was acutely aware of. Now, in the penalty phase of the trial, he gets a second chance at saving Rodney’s life. He has spent the weekend thinking about this, and when he arrives in court Monday morning to begin this phase of the trial, he looks haggard, as if he hasn’t slept. “When you’re attempting to get jurors to find the spark of humanity in someone, it takes an emotional toll,” he says. “The weight of the family looking to you to get their life spared—.” His voice trails off and, distracted, he hustles off to the defense table.
The district attorney begins the morning by explaining to the jury that she will offer aggravating evidence during this penalty phase and the defense will offer mitigating evidence. She tells them that this will be a very “emotional” day. “But we would ask that in the midst of that emotional evidence that you maintain a sense of objectivity as well and use your common sense and logic in sort of reconciling how this emotional evidence has any impact on the horrific crime that the defendant committed.”
Teri Thompson then takes her turn in front of the jury, opening by assuring them that Rodney Young and the defense team accept their verdict. “By the very verdict of finding him guilty of malice murder and each of the other counts in that indictment, there’s no question about whether he’ll be punished,” she assures them. “He will be punished severely every day, every hour for the rest of his life. . . . You will hear no excuses. There is no excuse. What happened to Gary Jones was horrific.”
She reminds them that in the guilt phase they made a unanimous decision. “In the penalty phase, as we told you back then [during jury selection], two weeks ago now, it’s about an individual decision based on your walk in life individually, your personal moral compass,” she says. “That is where we are now. You now are the judges as you determine the sentence for Rodney. You are the individual judges.”
The prosecution proceeds to call family members to read witness impact statements, explaining how the loss of Gary’s life has affected them. The district attorney, Zon, also presents evidence of a history of domestic violence, drawing on police reports and testimony to show that an ex-girlfriend requested a restraining order against Rodney in 2000 for domestic violence. He had twice attacked the ex-girlfriend, repeatedly punching and kicking Wanda Wilcher, a corrections officer, one night on her way home from playing pool at a bar, the Elk’s Home. A second time, he punched her in the face as she sat on a stool at the Country Bar in New Jersey. Doris Jones then testifies that Rodney once choked her, threw a brick at her car, and swung at her several times, to the point that she called the police. She too had asked for a temporary restraining order. (This is a common pattern in domestic violence situations in which the perpetrator begs forgiveness and swears it will never happen again. The victim withdraws the restraining order, reunites with the abuser, and then, often, the abuse happens again.)
“But you chose to dismiss [the restraining order]?” the assistant district attorney Melanie Bell asks.
“Yes,
” Doris says.
“Okay. Was that, again, because of the persistence and kindness and that sort of sweet version that he would show you?” Bell asked, alluding to the cycle of domestic violence to explain why Doris went back.
“Yes.”
Bell then has Doris walk the jurors through family photographs depicting her son Gary as a child, a teen, an adult. In the church choir, his eighth-grade graduation, dressed for the prom, posing at his aunt’s wedding, on his way to Easter Sunday service. She calls him by his nickname, G. “G was a strong believer in Christ,” she tells the jury. “From the time I went back to Georgia until a few days before Gary’s murder, he studied how to have an intimate relationship with God.”
After Doris gives her witness impact statement about her son’s murder, a church member does the same. Then Gary’s aunt, his girlfriend, his grandmother. “I lived right around the corner on Bradley Street from Gary’s house,” his grandmother Annie Sampson says. “He came to see me every day and called me constantly. He was the light of my life. I have a hard time accepting—” She pauses, repressed sobs clogging her throat. “I have a hard time accepting the murder of Gary. My heart feels like it’s been ripped out. . . . I have diabetes and neuropathy, and Gary would wash my feet. He would take blessed oil. He would anoint them. He would massage them. He would massage my back, my shoulders, my temples. He was very concerned about my health.”
Three jurors are openly crying. The judge’s clerk, a young woman sitting to his right at the bench facing the jury, is also crying. Romond stands and says simply, “I am very sorry for your loss. I don’t have any questions for you.”
When it is their turn, defense counsel is hard-pressed to counter these statements with a sympathetic portrayal of Rodney Young. And Rodney does not help his cause. According to counsel, he is hardly following the case. He is more concerned with the clothes he will wear each day than the impact of any testimony. His large frame, hunched shoulders, and impassive face only reinforce the image of an abusive batterer and killer. The defense team tries to subtly counteract this by having Thea Delage, the petite twenty-something lawyer who has a fellowship at the Capital Defenders office, sit calmly beside him, but Rodney’s silence allows jurors to project their own ideas on him—and in this mostly white jury, racist stereotypes likely surface. This is the defense team’s big chance to address that.
The first witness is Charlie Keats, a social worker at Rodney’s school, who also grew up in the neighborhood with Rodney. Keats has known Rodney Young since Rodney was twelve or thirteen years old, and he tells the jury about the rough and violent neighborhood they lived in, alludes to his troubled home life with a single mom on public assistance with several kids. He speaks for all the teachers, Keats says, in saying that they feel terrible and keep asking themselves what happened, how can they match what they know of Rodney, of his teenage self, with this terrible crime. They can’t reconcile the two images.
“Mr. Keats,” Thompson says, “do you feel that Rodney should receive the death penalty?”
“No, I don’t.”
“And can you explain why?”
“Well, by saying that, by the jury saying that, giving him the death penalty, it would say to those that love him that he has no value, he can’t be rehabilitated. And we feel that he can. We feel there’s hope there.”
The defense calls four more teachers and coaches from Bridgeton High School, a cousin, an in-law. Then the defense calls Rodney’s mother, Sara Brihm, possibly to raise questions about her own mental acuity and parenting abilities in the minds of the jury. She tells the jury she was a single mother of five when she moved to New Jersey in the ’70s. Among other jobs, she worked picking blueberries for commercial growers, and Rodney worked the fields beside her, starting when he was ten years old. “Well, life was a little hard back then,” she says.
“And when you say hard, hard in what way?” Romond asks.
“You, if it ain’t nobody but you trying to take care of your kids, it was hard for you because you wasn’t getting much money and you wasn’t making much money.”
“Ms. Brihm, by now you know that Rodney has already been convicted,” Thompson says. “Do you understand that?”
“Yes.”
“Okay. And what is it you would like the jury to know?”
“I’d like the jury to know that Rodney, he been a good boy. And I don’t know what else. And I think it can be more punishment without the death penalty.”
“What would the impact of an execution of Rodney have on you?”
“It’ll have a lot on me, just like there’s a lot on me now.”
“In what way?
“In all kind of ways. I miss my son every day.”
Finally, Rodney Young’s sixteen-year-old daughter, Aa’Liyah, takes the stand. She tells the jury that she has been living with her dad and her two great-aunts since she was two years old. Earlier testimony showed that Rodney had a basement room in the house where his two aunts lived upstairs with his daughter. Aa’Liyah tells the jury that she wanted to come today to talk about her dad. She says she has visited him in prison in Georgia a few times and that she still talks to him on the phone whenever she can. The defense enters five recent letters she sent to him in prison into evidence. She tells them that, as a junior in high school, she is thinking about college. “I want to go to Clark Atlanta University,” she explains.
“And why did you pick that school?” Thompson asks.
“So I can be closer to my father.”
“I just have one last question. Can I ask one more?”
“Yes.”
“You know that your dad has been convicted. Is there anything else you’d like to tell the jury?”
Aa’Liyah nods. “Please don’t kill my dad.”
Rodney Young’s life hangs with this jury of twelve men and women. As the group steps out of the courtroom to begin deliberating, the defense team returns to the topic of jury selection, worrying each call, second-guessing each decision, revisiting each choice. Two weeks ago, the judge, the district attorney, and these public defenders waded through a pool of 250 jurors in order to compile this particular “death qualifying” jury.
And, of course, race is a factor in this trial, just as it is a factor in all trials when the defendant is African American—and especially in all death penalty trials. By law, jury pools must reflect the latest available census data for the jurisdiction where the trial takes place. Here in Newton County, according to the 2010 U.S. Census Bureau, the population is almost 100,000 (a 61 percent increase over its population of 62,000 in 2000). It has a median household income of $52,361, with 12.7 percent living below the poverty line. Fifty-four percent of its residents are white, 41 percent black, 5 percent Latino.
Rodney Young’s jury should reflect that same breakdown—but it doesn’t. There are only two African Americans serving on the jury. Two weeks ago, one of them, Gwendolyn Butler (a pseudonym), stepped into the courtroom during jury selection to answer some follow-up questions. In the end, according to Romond, she would play a pivotal role; at the time, she was subjected to the usual collection of standard questions about the death penalty.
“Hey, Ms. [Butler], just have a seat and make yourself comfortable,” the judge told her that afternoon. “As you were told, the death penalty may never be an issue in this case. However, if the jury determines that the state has proved the defendant guilty beyond a reasonable doubt of the offense of murder, the jury will then be called upon to decide whether the defendant will be sentenced to death, life without the possibility of parole, or life with the possibility of parole.” Then he got right to the point. “Now, are you conscientiously opposed to capital punishment, that is the death penalty?”
“Not in all circumstances,” Gwendolyn Butler answered.
“All right,” he continued. “If the defendant should be found guilty of the offense of murder . . . do you think the death penalty is the only appropriate punishment?”
“No.”
/>
“So, in the event the defendant were found guilty, you would be willing to consider the punishment of life imprisonment as well as the death penalty?”
“Yes.”
When it is the district attorney’s turn, she asks her to describe her views about the death penalty in general.
“I do what I feel is right,” Butler says. “I just don’t think all circumstances require the death penalty. So I would have to kind of hear all the case. I wouldn’t feel comfortable sentencing someone to death if, just depending on what the circumstance was . . . that I heard in the case. I mean, and I wouldn’t oppose it at all if it was proven that they were guilty and they maybe killed a baby or a child.”
“Right. So it just depends on the evidence and the circumstances presented.”
“Mm-hmm.”
Teri Thompson, the public defender, then takes a turn asking Butler a few questions. “I guess we all may have different views, you know, whether a person believes in it or doesn’t believe in it and things like that. But my question’s a little bit narrower.” She goes on to explain a felony murder, how that means someone takes a life in the act of committing another crime such as robbery. “So in those kinds of narrow situations, can you tell me what your thoughts are about the death penalty as an appropriate penalty in that situation.”
