Chasing Gideon (35 page)

She pulls up a PowerPoint presentation—the time and energy and resources that the district attorney's office has are clearly
apparent—and she runs through a definition of mental retardation and, as a foil, a list of Rodney's accomplishments. As she wraps up her closing statement, she admits, “There's a lot of things about that murder, about what happened in that residence that we are never going to know.” The only person who knows is the defendant, she says. “He knows what happened in that house. He knows how many times he struck Gary, and he knows that he had no problem getting down here, committing that murder, that he planned it, that he waited outside that house, stalking them for the right opportunity to go in there and brutally attack Gary Jones with the force that everyone has described, the force of a man that it would take four men to take down. This man, Gary Jones, had no defense. He was brutally murdered in his residence. The state has proven that now beyond a reasonable doubt. So now it's up to you to decide if the defendant has proven beyond a reasonable doubt that he is mentally retarded, and we submit to you that he is not.”

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 ways 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