Chasing Gideon (33 page)

Romond confesses that he went back to his hotel room and had a “moment,” crying. He is under a lot of pressure and screwed up today in some way he is reluctant to reveal to a reporter. Some of the witnesses, too, threw him for a loop. He worries that he should have prepared better. He wishes he had had time to personally interview people before putting them on the stand. He knows that is good protocol—but he's also juggling eight other death penalty cases at
the same time. The stakes are so high for Rodney—death—and that thought, Romond tells me, never leaves his head. Rodney is counting on him, and he is scrambling to do his best.

In some sense, the gathering has the kind of camaraderie of a team thrown together, an unlikely set of intimacies from folks who wouldn't ordinarily mingle. As they debrief, one of the teachers, Mary Beth Galex, slumps down in a chair for a moment and sighs. “It's just awful being up there on the stand saying he is retarded and incapable of this and incapable of that,” she says. “After spending all these years telling these kids they can do anything and they are no different than anybody else.” There are murmurs of assent and a hush falls as they wonder, they have hurt his feelings, but have they saved his life?

Covington, Georgia, is a curious place—a mix of old and new South, a mix of middle-class newcomers and strapped old-timers, a mix of black and white who only rarely actually mix. It is a town where the local paper, the
Covington News
, appears to finance its seven pages of news with thirty-two pages of classifieds—thirty-one of them relentless back-to-back foreclosure notices the week the Young trial began. While the murder of Gary Jones took place four years ago, a recent spate of violence, including a murder six days earlier, had editors pleading with locals to play nice, please don't murder each other. “Over the last couple of weeks our community has been rocked with one tragedy after another,” editors wrote in their oddly pitiful February 15, 2012, editorial. “We understand that people in our community are going through some intense stress and pain because of the current economic situation we are in. . . . We can understand the fear that is brought about by the loss of a house or other property.” Editors begged readers: “If you are reading this and feel you are at your wits' end, seek medical help. Don't let your emotions get the best of you and destroy or end someone else's life. You can also seek help from our creator at no cost. We are positive you will receive some comfort for your pain.”
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The modest, low-slung
Covington News
office sits next to the courthouse, a modern building, only twelve years old. A bailiff tells me with some pride that the court has already outgrown its
home—crime being what it is, apparently—and the five superior court judges have to share three courtrooms. The new courthouse sits a block from the old courthouse, which itself sits on the town square.

The old courthouse, a majestic brick building, anchors the Covington town square. The square, on this February dusk as the Young trial plays out, is a little downtrodden with a desperate, hopeful air. It is lined with locally owned businesses—Lee's Fashions, Pom Pom & Pirouettes, Fletcher's Jewelry—that were likely unable to spring for the higher rents at the new shopping center up the way. Faded awnings and hand-lettered signs on glass (“Bertha's Beauty Lounge, Hair Weeving, Styling, & Cutting”) attract sporadic customers who languidly crisscross the square, never seeming to number more than six at any given time. They are a mix of black and white, like the county itself.

The stores flank a central grassy square with two magnolia trees, an American flag, and a giant statue of a confederate soldier. Erected in 1906, the marble soldier stares into the distance while resting his hand on the barrel of his musket. Beneath, under a relief of crossed swords, the inscription reads: “No sordid or mercenary spirit animated the cause espoused by those to whom this monument is erected, or inspired the men who bravely fought and the women who freely suffered for it. Its final failure could not dishonor it. Nor did defeat estrange its devotees.”

In his memoirs, General W.T. Sherman mentions a march through this same Covington Square in November 1864. “[W]e passed through the handsome town of Covington, the soldiers closing up their ranks, the color-bearers unfurling their flags, and the bands striking up patriotic airs,” he wrote. “The white people came out of their houses to behold the sight, in spite of their deep hatred of the invaders, and the negroes were simply frantic with joy.”
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In the jury selection process, the deck is stacked against public defenders whose clients are primarily people of color. It takes a very experienced lawyer to finesse this issue. “We win and lose these cases in jury selection,” said Chris Adams, former head of the Georgia Capital Defenders, who now does death penalty work as a private
attorney in South Carolina. “And it is very different from ordinary voir dire. The case law is different and very complex.”

As a result, both the ordinary rules governing jury selection and the special rules governing jury selection in capital cases both conspire against seating a jury that truly represents a fair cross section of the community. That is true in Georgia—and in plenty of other states. “There tends to be a whitening effect in voir dire,” said Adams, explaining that by the time you've excused anybody with a record, you've often tilted the scales toward middle-class whites. “We know that police target public housing, which tends to be African American. If I am an eighteen-year-old drinking beer or smoking pot and I'm picked up by the police, I'm likely to get a ride home and cops will talk to my parents,” said Adams, who is white. “Whereas an African American kid will be taken to the police station, arrested, charged—and end up in the system.” Fifteen years later, that kid can be a pastor at a church and a pillar of the community, but he's not eligible for jury duty.

Economic disparities exacerbate this. The dismissal of potential jurors who are not able to afford time off work or can't serve because they have day care issues disproportionately affects people of color. “You can have a beautiful cross section of people that truly reflects the community when potential jurors are called in—and then the jury panel becomes significantly whiter than the community,” Adams said. “That is true in all cases.”

Add to this racially biased peremptory strikes where attorneys can exclude a juror based on the vaguest of reasons—
not the brightest bulb in the pack, too strident, wears a cross necklace, wears a nose ring, wears pearls, wears patchouli oil
—and things get tricky. Legally, jurors can't be excluded based on race or gender, but in fact peremptory strikes open a door for lawyers to do just that. According to a June 2010 study by the Equal Justice Initiative, a nonprofit law organization in Montgomery, Alabama, juries grow increasingly lopsided at this point.
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The report, based on jury composition in eight southern states, found African Americans continue to be regularly excluded from juries for specious reasons. For example, the authors report that eight out of every ten qualified African Americans are struck from death penalty cases in Houston County, Alabama,
while in Jefferson Parish, Louisiana, “there is no effective African American representation on the jury in 80 percent of criminal trials,” since blacks are struck from juries at three times the rate of whites (and it only takes ten jurors to convict a defendant there). Further, they found several instances of all-white capital juries in majority-black counties.

However, proving racial bias in peremptory strikes is extremely difficult. Given the wide latitude prosecutors have for legitimately eliminating potential jurors, in the rare instances when they are called on to justify their strikes, they easily drum up race-neutral explanations. (The Equal Justice Initiative report even documented prosecutor training programs that teach how to deftly mask bias.) Some of the acceptable reasons “correlate strongly with racial stereotypes.” The report's authors explained: “Prosecutors frequently claim to strike African Americans because they live in a ‘high crime area' (meaning a predominantly black neighborhood); are unemployed or receive food stamps; or had a child out of wedlock.”
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All of this is fairly well known in legal communities, but what is less understood is the additional tilt-toward-white that occurs in capital cases. In death penalty trials, jurors get asked a set a questions—called
Witherspoon
or
Reverse-Witherspoon
, based on a precedent-setting case of the same name—to affirm that they would impose the death penalty if the situation merited it or, conversely, to make sure they wouldn't automatically vote for the death penalty every time, regardless of the circumstances. This was designed to exclude those who would never vote for death and those who would always vote for death. Legal scholars believed this would skim 4 percent of those at the ends of the spectrum. But that's not what happened. According to Capital Jury Project research, more than 50 percent of jurors actually fall into those categories.

Over time, as feelings about the death penalty have shifted in the country so that fewer and fewer people support it, it has grown harder to pull together a “death-qualifying” jury. So, even while opponents of the death penalty are seeing successes in changing some hearts and minds in the public, defense attorneys are losing more cases to juries that are further tilted to the political right.

As a nation, that puts us in a tricky spot.

Once, when delivering a talk about the death penalty at the Washington College of Law at the American University in 1995, Stephen Bright, founder and director of Atlanta's Southern Center for Human Rights, mused about the evolution of morality.
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“There is a debate about the evolving standards of decency—or even whether there are evolving standards of decency—that mark the development of a maturing society,” he told the audience. “Are there some kinds of punishment that are beyond the pale: whipping, the stocks, capital punishment?” He told students that Alabama had recently brought back the chain gang, that the Commissioner of Corrections there spent $17,000 to buy three hundred pairs of chains. “You do not need to go to Singapore to find a chain gang. You can find one right there in Alabama.” What does this say about us as a country? “I was in a debate with someone recently about the evolving standards of decency, and I said, well, now, boiling in oil, whipping, the stocks; do you think those are still appropriate punishments today? He thought about it for a minute, and said, well, boiling in oil, no; whipping and the stocks, yes. That is something to think about. Are there some kinds of punishment that we do not have because of questions of decency, because of questions of expense, because of questions of effectiveness?”

Because Bright knows the death penalty is not going away anytime soon, he has worked all his life to point out the flaws in the system. Interestingly, he explains the clamor for death as something elected officials—politicians, of course, but also elected judges—have generated themselves, fighting a fear of being perceived as “soft on crime.” Before 1988, when George H.W. Bush famously used the Willie Horton ad (depicting a revolving prison door to show how his opponent let Massachusetts inmates out on weekend furloughs—and some committed further crimes) to help him win the election and portray Democrats as soft on crime, many Democrats, including presidential nominee Michael Dukakis, were opposed to the death penalty. By the time Bill Clinton rolled around, he was blithely trekking to Arkansas for Ricky Rector's execution. Bright tells the students:

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: