Chasing Gideon (36 page)

If they empathize or identify with the victim, they're more likely to push for death. “If the victim was just minding his own business, the juror is thinking, ‘There, but for grace of God, go I,' and the jury is more likely to come back with a death sentence,” Sundby says when I talk to him on the phone. The fact that Gary Jones was on his way home from church, “still in his church clothes” as the jury in the Rodney Young case hears repeatedly, can be a powerful influence on their thinking. “Whereas, if this was someone who was murdered when a drug deal went awry, or the victim was engaged in high-risk behavior, like prostitution, or hanging out at a biker bar, or whatever, those are the types of things where jurors say, ‘What do you expect, if you're going to engage in this behavior?' They don't really identify with the victim,” says Sundby.

If they identify with the victim, the defense team's job gets much harder. The lawyers must convince the jury that their client is a person worthy of mercy. The challenge is to create a fleshed-out portrait of a person, to tell the story of a life so well that someone—at least one person on the jury—can vividly see the defendant as a person (as opposed to the “animal” that the prosecution speaks of) and
feels empathetic enough to suggest life in prison as a harsh enough punishment for the crime. But competent attorneys are not necessarily good storytellers. “If I was a defendant in this case,” Sundby says. “I would much rather have Shakespeare than Blackstone as my lawyer.”

Joseph Romond is not Shakespeare or Blackstone. He is a hardworking, smart, and dedicated lawyer who is trying his first death penalty case. He's a nice guy—the jury doubtless senses that—and he cares deeply about his client's fate. He asks all the questions needed to cast doubt and lay the groundwork for Rodney's appeal, but to the layperson, such questions occasionally seem scattered, hint that he is grasping at straws, and never quite cohere into the empathetic portrait of Rodney Young that the jury needs to see in order to feel merciful at the sentencing phase.

Throughout this trial, Rodney Young is a question mark. Who he is, who he
really
is, remains impossible to decipher as the witnesses talk around him and he sits, silent and hunched forward, staring at the ground between his two feet. Very rarely does he look up; he never makes eye contact. The defense lawyers, of course, won't let a reporter talk to him—who knows what he'll say?—and they will not jeopardize his case. Rodney won't take the stand either, likely for the same reason. Is he a sympathetic character? A monster? A loving father to his teenage daughter? A man who hits his girlfriend? A “man-child” who thinks like a boy in the body of an adult, as one of his old teachers insists?

This second part of the trial, the penalty phase, is all about telling Rodney's story so the jury truly sees him. It is not altogether successful. Romond admits he has not had enough time to question all of the witnesses as thoroughly as he'd like. His mitigation investigator, Felicia Sullivan, who tracks down the folks in Rodney's past and questions them about his life, has told him who has useful anecdotes and who is a good storyteller. But Romond admits funding limitations and a heavy caseload of similarly pressing, high-stakes capital cases mean that he didn't get to Rodney's defense witnesses as soon as he'd liked—some of them have forgotten details years after the incident—and late go-aheads from his office concerning
travel and expert witnesses in all the cases he carries are an endless worry for him. He knows this compromises the efficacy of his representation. He has spent the weekend agonizing over this, understanding that he has already lost the guilt-innocence phase of the trial by failing to persuade jurors of Rodney's mental retardation, and he is determined to save Rodney from lethal injection. This is the part of the trial where, having dug deeply into Rodney's past, the defense counsel will try to show mitigating circumstances, to create a portrait of Rodney that forces jurors to see him as a human being, a person valued and loved by his family and friends.

But have they done enough prep work? Romond wonders. He knows they haven't.

His co-counsel, Teri Thompson, has been forced to prepare for three capital trials in the six months leading up to Rodney Young's trial. One client was tried in September and October. One trial was slated for November and, after doing all the preparation for it, was put off until a later date by the judge. She tried a third capital case in January. In February, the Rodney Young trial started. Meanwhile, Thompson had five other death penalty clients whose cases she was juggling and Romond had resolved three capital cases, while carrying five other clients himself. In the past few years, Romond has geared up to explain on the record to judges that the Capital Defenders office has been too financially strapped to represent all their death penalty clients adequately, but his boss forbids this frankness.

“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.”