by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
“I don’t—see, it’s really hard for me to say because I don’t oppose the death penalty if the circumstances warrant it, just depending on the circumstances. But you know, I’ve always had a little feelings about, okay, is it man’s right to decide if someone should live or not? But I think it’s also my civic duty to do the right thing. And so from the question that you just asked, if I felt someone intentionally killed someone and it was a malice act of just, you know, disregard for human life and just, I could probably consider it.”
“Okay. . . . You understand that you are entitled to, and the Court will instruct you that you are entitled to, your individual, moral assessment as to what the appropriate penalty is for you?”
“Yes.”
“Okay, and how do you feel about that?”
“I feel okay.”
“You know, coming up, hearing everything like you’ve already said, and making your own individual determination as to what—I think you used the word comfortable—”
“I wouldn’t be swayed by the other jurors. Just, like, if morally I felt that no, the death penalty in this case is not warranted, I wouldn’t just do it because everybody else is, like, let’s go, we need to do it.”
Both sides agree to seat Butler as a juror.
Deliberations in the penalty phase of Rodney Young’s trial start on Monday at 1 o’clock. A half hour in, the jury sends out a note. “Is there an automatic appeal when the death penalty is given?” jurors want to know.
“That’s terrible,” Romond thinks. “That’s bad, a bad sign.”
The judge says he is going to tell jurors that “they are to decide this case based on the law and the evidence and not to concern themselves with matters of this nature.” He tells the lawyers, “That’s the only thing I know to do.” The judge writes a note to this effect and sends it in to the jury.
Then, one hour and forty-five minutes later, jurors send out another note. One of the jurors has asked to be dismissed as a juror saying she has too many questions about this case, that she can’t give the death penalty, that everyone else is in agreement but her.
The judge, who reflexively asks the prosecutor for input throughout the trial—and nine times out of ten, takes her advice—asks what she wants to say about this. “With respect to the Court’s proposed solution that was discussed at the bench conference, which was to not respond or not address the note at this point in time, we have no objection,” says Layla Zon. But she has two recommendations. “One would be to bring the jurors out and ask the juror if he or she is still able to deliberate and then act accordingly or appropriately. Or B, send a note to the jury that would be something of the nature of . . . you’re just to continue to deliberate, consider each other’s opinions,” an order known as the “Allen charge.”
Scott Sundby, the professor of law at Washington and Lee University who extensively researched capital juries, says that the Allen charge is referred to as the “dynamite charge.” Speaking to me on the phone, he recalls a juror he once interviewed who told him that the judge invoked the Allen charge by explaining they’d be there until the cows come home. “The judge says to the jury, you must abide by your conscience, of course, but you put in so much effort already and you need to listen to your fellow jurors and see if you can’t agree. So go back in there. The dynamite charge is used when the jury is deadlocked and the judge hopes to blast out a verdict.”
“Your Honor,” Teri Thompson objects. “The note is clear. This juror, whoever the juror is, has reached his verdict.” (The gender of the juror is not clear since the note was unsigned; in fact, it turns out to be a woman.) “The Court, I think, has the authority to sentence Mr. Young to life without parole based on this note. That is his verdict. He is not saying, he or she, whoever it is, is not saying they cannot deliberate. . . . He has made his verdict, and that should be—”
“So you want me to sentence the defendant based on a note from one juror?” the judge asks.
“Absolutely,” Teri Thompson says. “This juror has made his vote. He’s reached his verdict.”
“So what do you want me to sentence him to?”
“I think—well, I can pull the law,” Thompson says. “There is law that addresses where there is, if there is a lone juror, if there are eleven jurors voting one way—”
“We don’t know what this juror is saying he or she is wanting the sentence to be.”
Joseph Romond dives in. “Your Honor . . . our position on this would be . . . in the penalty phase of a capital trial, the decision by the juror is an individual moral judgment,” he says. “That’s the case law. This juror has made his or her individual, moral judgment as to what the penalty is, saying that, due to those questions, he can’t say yes to the death penalty.”
“Yes.”
“So in that situation, that juror has reached their verdict,” Romond says. “The statute allows the Court, in that event, to sentence the defendant either to life or life without the possibility of parole. I’ll pull up that statute.”
“I’m aware of the statute,” the judge says. “I think it may be premature to make that leap based on one juror making this statement.”
Romond disagrees, but the judge interrupts him.
“This juror does not say, we are deadlocked. This juror does not say that I am not listening to anyone else or anything else of that nature. I can’t read into this one note what you’re asking me to read into it. And I mean, I don’t know what this juror is willing to impose. . . . Only one thing is mentioned that . . . he or she will not impose.”
The prosecutor points out that they have not been deliberating very long, only two hours or so—and the judge agrees.
Romond tries again. “Our only point is that, a juror can reach their own individual, moral assessment about what the penalty should be in five minutes,” he says. “And clearly this juror has, so our motion to the Court is to suspend deliberations based on the fact that this juror has reached their judgment and sentence Mr. Young according to the statute.”
“What are you asking me to sentence him to?”
“Your Honor, the Court has the discretion—” Romond begins, scrambling for the legal language on his laptop. “I’ll pull it up right now. The Court has the discretion to sentence Mr. Young in that event to either life imprisonment with the possibility of parole or life without the possibility of parole. As the Court is aware, a unanimous verdict is required for a death sentence. This note says that this juror cannot say yes to the death penalty. And in that event, the Court then has the discretion for either one, and so it’s in the discretion of the Court.”
The judge again refuses.
The judge and Romond go back and forth with this. Romond understands, in a profound way, that this juror holds tremendous power over Rodney’s fate, but also is under tremendous pressure—and will likely succumb to the group. The stakes are high. He needs to act fast; research indicates holdout jurors resist only so long. He reiterates. “[O]ur position is this juror has reached their verdict, their individual, moral assessment. And as such, any further deliberations is simply beating, the other jurors beating up on this juror to try to get them to change their moral beliefs.”
“No action is going to be taken by the Court at this time,” the judge says.
Then, an hour later, the jury sends out another note. This one asks again for more information, a copy of the PowerPoint page that the State used in its closing argument. The section the jury is specifically requesting has to do with the Diagnostic and Statistical Manual’s definition of mental retardation, as well as a bell curve showing how the population falls in terms of IQ. The judge calls the jury in and shows them the slides again. They return to the jury room.
About an hour later, the jury sends out another note saying they cannot reach consensus, suggesting they are deadlocked eleven to one. What do we do now? they want to know.
The judge tells the attorneys that he intends to instruct the jury to “continue deliberations.”
The judge is unpersuaded. “[B]ased on the note, I’m going to call the jury out and give them the instruction that I discussed with counsel,” he says. When the jury reenters, he tells them that he received their latest note, but that he has something to say. “In order to return a verdict, each juror must agree to the verdict. Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done, without violence to individual judgment. Each juror must decide the case for himself or herself, but only after an impartial consideration of the evidence with the other jurors. In the course of deliberations, a juror should not hesitate to reexamine his or her own views and change an opinion, if the juror is convinced that it is erroneous. No juror should surrender his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of the other jurors or for the mere purpose of returning a verdict.” He then tells them to return to the jury room and resume deliberations.
At 6:30 P.M., he asks the jurors if they want to continue discussions—and, if so, if they would like to call family members to let them know what is up—or if they’d like to stop for the evening and continue the next morning. The jury says they need ten more minutes.
When the jury reenters the courtroom, the judge addresses them. “Ladies and gentlemen, have you reached a verdict?”
“Yes,” the foreperson says.
The bailiff hands the form to the judge, who reads it aloud. “With reference to the sentence, we, the jury, fix the sentence at death,” the judge reads. He then individually polls the jurors and turns to Rodney Young. “Mr. Young, you’ve been found guilty of the offense of malice murder. The jury, in its verdict, has found beyond a reasonable doubt the existence of statutory aggravating circumstances and fixed the sentence at death. I therefore sentence you to death by lethal injection. The execution shall be conducted between March the 28th, 2012, and noon on April 4th, 2012.” As the jury listens intently, he concludes the trial. “Mr. Young, may God have mercy on you.”
A few weeks after this trial, a disillusioned and dispirited Joseph Romond quit his job with the Georgia Capital Defenders, moved to California, and took a job as a bartender. He reports: “Despite my [new] profession, I drink a third of what I did as a lawyer.”
CONCLUSION
The National Legal Aid and Defender’s Association opened its one-hundred-year anniversary conference in Washington, D.C., in 2011, with the Reverend Michael Eric Dyson addressing the crowd of three hundred public defenders and legal aid attorneys scattered in a hotel ballroom with space for many more. “Does the rest of society demonize you? Of course. Do they suggest you are working for the wrong people? Of course they do. Do they say you are working for thugs and criminals? Of course they do,” he said, working to rev up his tired audience with rhetorical flourishes. “But the work that you do is vital and critical, because the principles of democracy rest on the ability of ordinary citizens to get justice in our legal system.”
His voice rose in volume and picked up speed as he told the audience that they ought to consider themselves superheroes. “Maybe you don’t have an S on your chest,” he said. No matter. “Each of you is a superhero.”
It was an interesting observation, more desire than reality. The motley group of public defenders and legal aid attorneys sprinkled in the hall that day wore the resigned look and crumpled clothes of the system’s legal workhorses. No power suits. No Brooks Brothers shirts. No Prada shoes. The men were the kind I had sat behind in too many courtrooms as a reporter over the years—worn tweed jackets sprinkled with a layer of dandruff that glinted under fluorescent lights, haircuts that might have been sharp three months ago but now curled into the collars of their blazers, wash-and-wear/no-iron shirts from L.L. Bean. The women at the conference also wore their standard trial attire—the jacket that told a jury this was serious work, though it came from Marshalls and had cat hair trapped in the nap, the practical if unglamorous Born clogs, the canvas book bag from Barnes and Noble with a faded, disappearing image of a gaunt Virginia Woolf.
It was possible that shiny spandex, superpowers, and the attendant glory lurked beneath these frumpy clothes, hidden by slumped and tired frames, but it was a stretch. What Dyson was up to, clearly, was trying to rally the crowd with a renewed commitment to this unpopular work, public-defender-as-martyr-to-a-losing-cause, the rights of the indigent.
This was a telling moment, indicative of the sense, from every single person I spoke to at this national conference (roughly fifty over the course of several days), that good work was possible for public defenders across the nation, but that the greater context in which they labored made it a herculean effort that few could sustain. Indeed, public defender systems regularly hemorrhage attorneys who left in a blaze of fury or slowly simmered with resentment until they burnt out after a few years on the job—and this inadvertently emerges as a theme among the lawyers I report on in the course of this book. Carol Dee Huneke is a vocal critic of the status quo in the public defender’s office in Spokane and finds herself fired. Twenty-one hard-working public defenders in New Orleans are let go and Greg Bright’s attorney at Innocence Project New Orleans returns to England after several years’ immersion in the American justice system. Miami chief public defender Bennett Brummer fought a pitched battle to limit caseloads and reform the system, and after thirty years, decided not to seek reelection. Joseph Romond, a committed and passionate public defender in Georgia, quit in frustration after trying his first death penalty case before a jury.
In some ways, Dyson’s speech has totally missed the mark. Most of the public defenders out there are not particularly interested in being vigilante superheroes acting alone to save the world from injustice. They want some backup. They want to work within the existing framework of the laws of the land to protect their clients’ rights. And mostly, they want the time and resources to do their job right without having to resort to heroics. Over and over, public defenders said they needed more time with their clients if they were to properly represent them. “Clients don’t trust the system,” says Franny Forsman, a federal public defender for the District of Nevada for twenty-two years. “You can be the best smarty-pants lawyer out there, but the client doesn’t know that or see it. There’s a relationship of trust that has to happen because of the critical decisions that have to be made. Clients are asking, ‘Do I trust you enough to tell you the truth of what happened?’ And I need that information so I can see, for example, is this a self-defense case? There has to be enough time to create a relationship. That’s where the difference is between rich and poor. The rich, because they’re paying for their time, will have as much time with their lawyer as they need.”
It is a curious thing that everyone at the public defender’s conference knows the system is broken—and indeed almost everyone in all parts of the criminal justice system across the United States acknowledges deep flaws in the way representation is provided to poor people. Eric H. Holder Jr., attorney general of the United States, also spoke to the American Council of Chief Defenders in June 2009 about the urgent need to reform the system.1 “The obstacles to representing the indigent are well-known,” he said. “We know that resources for public defender programs lag far behind other justice system programs—they constitute about 3 percent of all criminal justice expenditures in our nation’s largest counties. In many cases, contract attorneys and assigned lawyers often receive compensation that doesn’t even cover their overhead. We know that defenders in many jurisdictions carry huge caseloads that make it difficult for them to fulfill their legal and ethical responsibilities to their clients. We hear
of lawyers who cannot interview their clients properly, file appropriate motions, conduct fact investigations, or do many of the other things an attorney should be able to do as a matter of course. Finally, we know that there are numerous institutional challenges in public defense systems, like budget shortfalls.” He acknowledged that the challenges the system faced were not new and quoted Justice Hugo Black, who saw the problems as long ago as 1963 when Gideon v. Wainwright came before the U.S. Supreme Court. “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”
“What can be done?” Holder asks.
The question resonates, echoing and bouncing off the walls of marbled courthouses all across the nation, where the players know what needs to be done in a technical sense to fix the problem but no one can generate the political will necessary to change things. Fifty years after Gideon v. Wainwright, equal justice for all eludes us.
AFTERWORD
DAVID J. CARROLL, EXECUTIVE DIRECTOR, THE SIXTH AMENDMENT CENTER
“Liberty.” For the signers of the Declaration of Independence, it is the universal notion that every person should determine their own path to happiness free from undue government control. Patrick Henry preferred death to living without it. In fact, liberty is so central to the idea of American democracy that the founding fathers created a Bill of Rights to protect personal liberty from the tyranny of big government. All people, they argued, should be free to express unpopular opinions or choose one’s own religion or protect one’s home without fear of retaliation from the state.
Preeminent in the Bill of Rights is the idea that no one’s liberty shall be taken away without the process being fair. A jury made up of everyday citizens, protections against self-incrimination, and the right to have a lawyer advocating on one’s behalf are all American ideas of justice enshrined in the first ten amendments to the United States Constitution. John Adams risked his reputation for these American ideals by defending in court the British soldiers involved in the Boston Massacre, recounting years later that a defense lawyer ought to be the last thing a person should be without in a free country.
