Chasing Gideon (38 page)

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.”

Romond objects. “It's clear that a verdict by one individual has been reached under the law and that any further deliberation would simply just be an attempt to coerce this one individual juror, and so we would object to any charge given,” he says. “It's clear that the only purpose of this is to change this juror's individual, moral assessment, strongly-held belief . . .”

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.”

 

T
he 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.

 

“L
iberty.” 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.

In 1963, the United States Supreme Court agreed. “From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every
defendant stands equal before the law,” the U.S. Supreme Court declared in the landmark case of
Gideon v. Wainwright
¹
before asserting that this “noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”