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In 1976, the Supreme Court handed down a landmark decision known as Gregg v. Georgia, reinstating the death penalty, which it had found unconstitutional only four years earlier. In the Gregg decision, the justices predicted that new state laws would eliminate the arbitrary and unprincipled death sentences that the Court had found were commonplace only four years earlier when it ruled that the death penalty was unconstitutional. In a 7-2 opinion the justices offered this optimistic pronouncement. "No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines." A quarter century later, the United States has executed more than 780 people. Another 3700 are on death rows across the country. But while the states have adopted new instructions to guide jurors in making life or death decisions, many jurors appear to be just as confused about the law as they were when the high court put the death penalty on hold.
In 1976, the Supreme Court handed down a landmark decision known as Gregg v. Georgia, reinstating the death penalty, which it had found unconstitutional only four years earlier. In the Gregg decision, the justices predicted that new state laws would eliminate the arbitrary and unprincipled death sentences that the Court had found were commonplace only four years earlier when it ruled that the death penalty was unconstitutional. In a 7-2 opinion the justices offered this optimistic pronouncement. "No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines."
A quarter century later, the United States has executed more than 780 people. Another 3700 are on death rows across the country. But while the states have adopted new instructions to guide jurors in making life or death decisions, many jurors appear to be just as confused about the law as they were when the high court put the death penalty on hold.
Death Row - Bobby Moore
The nation's busiest death row, the 2900-inmate Allan B. Polunsky Unit, is in Livingston, Texas, an hour north of Houston. The sprawling, gray two-story complex sits behind multiple razor wire fences overlooking a broad, open plain of buttercups. Visitors are led through an electronically operated door along an immaculately tended, flowered path.
A second security checkpoint guards a long room where shackled death row inmates their shirt backs marked "DR" in ten-inch black letters are led into phone-booth-size steel cages with thick plexi-glass windows.
"My name is Bobby Moore. Having been on death row for 22 years now, I have witnessed many men being carried away to the execution chamber. Many here do not want the time to be up and some do."
Bobby Moore, now 42, was sentenced to die 22 years ago for the shooting death of James McCarble in the course of a bungled robbery at a Houston supermarket. Like other men and women who have spent years on death row, Moore insists the experience has affected him profoundly.
"Any person that believes in God, I think, would agree that people do change," says Moore. "And I'm no longer the person I was 20-some years ago. I have changed. I regret what I did in the past and I learn from my mistakes every day of my life here."
Similar claims of change and redemption have invariably been dismissed by the Texas parole board and governors, among them George W. Bush, who signed off on 152 executions.
Moore is only alive today because a federal court ruled he would probably not have been sentenced to death except for the "gross incompetence" of his trial attorneys. That 1995 ruling led to a "re-sentencing trial," a trial in which jurors were told Moore was guilty and that they were only to determine his sentence. This new jury also voted for death. Fred Baca, the jury's foreman, describes what he calls a "horrific" crime.
"Two people went in and were holding people, were taking money, with Bobby seemingly a lookout guy with a shotgun," explains Baca. "A woman screams, things get out of hand, Bobby goes over to the cashier, the shotgun goes off. It literally blew this man's head off."
Baca was never comfortable with Moore's death sentence. A self-described conservative Republican businessman, he says jurors didn't understand some of the language in their instructions the term "culpability," for example, and the meaning of the phrase "continuing threat to society." They also asked the judge to tell them which evidence could be considered "mitigating," that is, which evidence lessened Moore's responsibility for the crime. But Baca says questions to the judge went unanswered so often that they finally stopped asking.
"We were drowning, and we wanted some kind of help. And when it's that serious, for God's sakes, when you're pleading for help, you have to give us something. We were reasonable people, intelligent people, making a very difficult decision, asking for help."
What most confused the jurors was whether Moore could be paroled if given a life sentence. But Baca says Texas law prohibited jurors from discussing parole.
The jurors concluded they had only two choices.
"The options came down to death or, in our minds, release to the general public," says Baca.
Would Moore ever be paroled? Extremely unlikely. To get out, he would need the approval not only of the state's highly political Board of Pardons and Paroles, which has never granted parole at the request of a death row inmate but the governor as well. In the end, Moore's jury did what many juries do; they ignored the judge's instructions. Believing that Moore might be paroled in 15-20 years, they voted to execute him.
Fred Baca was so disturbed by his trial experience that he went to the judge and asked to meet the man he'd just condemned to death. Today Baca is one of Moore's most outspoken advocates.
"An injustice is about to occur," says Baca. "The truth is, executing Bobby Moore today is as senseless as the killing of the store clerk in 1981. It doesn't make any sense."
Baca says Texas needs a clear 'life without parole' statute, so jurors will know that dangerous men they don't want to execute will never be released. And he says, citizens who are asked to hand down death sentences have a right to an explanation of things they don't understand.
Judges Don't Want to Retry Cases
But why did Moore's judge refuse to answer the jury's questions? And why was the jury forbidden from discussing parole?
Paula Hannaford of the National Association of State Courts is one of the country's leading authorities on juries. She says judges often refuse to answer jurors' questions because they fear any deviation from standard, well-rehearsed instructions could open a verdict or a sentence to reversal on appeal. Judges don't want to have to retry cases. And, in states where judges are elected, they don't want their opponents harping on their reversal rates.
Hannaford says most jurors take their jobs extremely seriously. And she believes denying them information about the meaning of basic legal concepts undermines the integrity of the justice system.
"It's not fair," says Hannaford, "to the jurors to ask them to be making these kind of decisions without providing them with an opportunity to truly understand what the law is and what the criteria are that they are supposed to be making their decisions (with). And if they are fundamentally misunderstanding concepts, it is only an arbitrary decision. The justice system that is supposed to be meting out justice, is not in fact doing that at all."
Hannaford believes people are being wrongly sentenced to death because jurors don't understand the law. She says courts often refuse to allow discussions of parole because parole is an executive branch decision, and courts can't predict when or if a defendant may be released. But she believes, sentencing would be fairer if jurors were told, based on the law and experience, what the likelihood is of release.
Misconstruction of the Law
In the spring of 1999, Sandra Day O'Connor received an enthusiastic welcome from an audience of lawyers, judges and court administrators gathered in Washington for a National Conference on Public Trust in the Justice System. In her remarks, which went largely unreported, the Associate Supreme Court Justice said that jurors were handing down verdicts without a clue as to what was going on.
"Too often, jurors are allowed to do nothing but listen passively to the testimony," said Justice O'Connor, "without any idea what the legal issues in the case are, because they aren't told at the beginning of the case. And at the end of the case, they are finally read a virtually incomprehensible set of instructions and sent into the jury room to reach a verdict in a case they may not understand much better than they did before the trial began."
But six months after that speech, O'Connor joined Chief Justice Rehnquist in a 5-4 opinion which stated quote: "A jury is presumed to follow its instructions and to understand a judge's answer to its question."
Beatrice Hayward didn't understand the instructions. She wanted to know if the law required a death sentence. But the judge refused to answer her question.
Hayward said, "We wanted to make sure if we were doing the right thing, and if this was the only way we could go was the death penalty."
That was no small matter, because the court's 1976 Gregg decision reinstating the death penalty ruled that automatic death sentences were unconstitutional. But Hayward wasn't told that. She and two other jurors believed they were required to sentence Virginia cop-killer Lonnie Weeks to death. Ted Trynock, a union official, was one of them.
"We either had to find him guilty or innocent," says Trynock. "If he was innocent, he walked. If he was guilty he was gonna die. And that's it. We weren't there to discuss the penalty. We were there just to find out whether he was guilty or innocent. And we all understood that it was the death penalty if he was guilty."
But the Gregg decision says the jurors were there to discuss the penalty and that they were required to consider a life sentence. By the time Trynock's misconstruction of the law became known, Weeks had already been put to death by lethal injection.
But the Weeks case is not some weird aberration. The Capital Jury Project, which has interviewed more than 1200 jurors in 350 capital murder trials, found that more than half of the jurors it interviewed thought death was mandatory for premeditated murder, multiple victim murders, and for repeat murderers. All of those jurors made life or death decisions. And all of them misunderstood the law.
Bobby Lee Ramdass
In 1993, a Pakistani immigrant, Mohammed Kayani, was murdered at 7-Eleven number 10775 on Beulah Street in Alexandria, Virginia. The murderer, Bobby Lee Ramdass, had previously been convicted of two armed robberies, had pistol-whipped a hotel clerk and shot a cab driver in the head, leaving him for dead. When his case went to the Supreme Court, the issue was, once again, juror confusion. Justice O'Connor cast the deciding vote, which resulted in Ramdass's execution.
No one on Ramdass's jury had any doubt about his guilt, or that, if released, he might be a threat to society. But according to Jane May, jurors were unclear about one point in their instructions: "[I]f the defendant is given life," they asked the judge, "is there a possibility of parole at some time before his natural death?"
"The note came back, 'That is not for you to consider.' There was no yea, no nay, no explanation, nothing. That was it," says May.
Ramdass's lawyers argued that the judge should have told the jury that there was no real possibility of his ever being paroled, because of his prior convictions and because Virginia has a life without parole statute. But absent any clarification, May said the jurors concluded Ramdass might indeed be released. So they voted for death.
"I was among those who would've liked to have life," explains May. "But if it could not be life, we were not willing to take the chance of his getting out at some point in time."
May also said the jurors feared that failure to reach an agreement would have resulted in a mistrial, a common misconception among jurors. They weren't told that failure to agree would have meant a court-imposed life sentence.
The Supreme Court had earlier ruled that jurors must be informed that a defendant is not parole-eligible when a state claims he will pose a "future danger" to society. That position has been strengthened in a series of subsequent opinions. But Justice O'Connor said the rule didn't apply to Ramdass. May and three of her fellow jurors later signed affidavits saying they would not have voted for death had they been told Ramdass could not have been paroled.
Ramdass was executed in October, 2000.
The New Brookland Tavern just west of the Congaree River in West Columbia, South Carolina, wears its decrepitude like a badge of honor: ancient vinyl chairs with their stuffing pouring out, a water-stained plaster ceiling with holes big enough to drop a body through, and a carpeted dance floor that has clearly had one too many. The bar showcases bands that run the gamut from folk to heavy metal. On this particular night, a group called "The Reprieves" is on stage. Its members are not your usual cast of rockers, but three high-powered death penalty lawyers and a local florist on drums."Well mama passed on 'fore she turned eight,
Daddy's love for life, it turned to hate.
She was her daddy's pride and joy...."
John Blume, songwriter, vocalist and guitarist, is also a professor of law at Cornell University. His clients are the subjects of many of his songs, like this one about Betty Lou Beets who he represented in her final appeals. Beets, a 62-year-old grandmother was executed in February, 2000, for murdering her husband, who she buried beneath a wishing-well, in front of her mobile home near Gun Barrel, Texas."Several days later they found him dead.
He had three gunshot wounds in the back of his head.
The DA said it was all part of a ploy...."
As governor, George W. Bushed signed off on the execution, despite evidence that Beets's original trial lawyer withheld evidence that could have saved her from a death sentence.
But even when jurors are given all the evidence, Blume says, they frequently don't understand what the law requires them to do with it.
"I don't know if you've actually ever listened to a judge give instructions at the sentencing phase of a capital trial. If not, and you have insomnia, I would suggest that you do it. But it is incredibly mind numbing and it's incredibly confusing and I think they just don't get it," says Blume. "And just sitting there, listening to somebody talk to them for an hour about things they don't have any reason to talk about in their everyday lives, aggravation, mitigation, unanimity, beyond a reasonable doubt, blah, blah, blah..."
Most people know a death sentence requires a unanimous jury.
One question: How many jurors would it have taken to decide that Betty Beets deserved a life sentence instead of death because she was sexually abused as a child? Answer? Just one.
Any juror who finds a factor sufficiently mitigating can effectively veto a death sentence.
But jury instructions rarely if ever make that clear. In South Carolina, the Capital Jury Project found that two out of three jurors who sat in death penalty trials believed they had to be unanimous on mitigation. Indeed, the jury project found jurors frequently don't understand what mitigation means.
Blume says the misconceptions jurors bring to their deliberations are sometimes quite outlandish. He cites the 1987 re-sentencing trial of Ernest Riddle in which the jury sentenced him to die, despite the fact that half of the jurors thought he was innocent
"You think, OK, how could that be, that sounds so strange, so bizarre," says Blume. "But here's how they spun it out. If we sentence him to life, he's just gonna go away to prison forever. But if you're sentenced to death you get an elaborate set of appeals. And one of the appeals is a new trial on the question of whether you did it or not so this guy will actually be better off if we give him the death penalty as opposed to life imprisonment."
Simplifying Death Penalty Instructions
In Illinois, Northwestern University law school professor Shari Diamond and linguist Judith Levi conducted a study of how well jurors understood that state's death penalty instructions. They found that by simplifying the language of instructions, juror comprehension increased dramatically. Diamond provided one example from a particularly confusing instruction.
"My all-time favorite," Diamond explains, "is the wonderful line in the Illinois pattern jury instructions which contains, and you can count them for yourself, four negatives. 'If you areoneunable to find unanimously that there is twono mitigating factor sufficientthreeto preclude imposition of a death sentence, the court will impose a sentencefourother than death."
What does that mean?
"It means if you're not unanimous," says Diamond, "the person will not be sentenced to death."
Toothpaste companies test their commercials to see what consumers "take away" from them, Diamond says, but jury instructions used in courtrooms across the country every day are rarely if ever tested.
Several states, including Wyoming, Arizona, Michigan and California, have tried to make instructions more accessible. Curiously, the 2600 member American Judges Association, the largest association of judges in the country, has never addressed the issue. Many judges and prosecutors still claim there's no real problem.
Harris County District Attorney Charles Rosenthal says that anyone who speaks and reads the English language should understand the Texas death penalty instructions. I asked him if Texas had ever tested that assumption.
"No, I don't know how you could do that or why you'd want to," responded Rosenthal.
When it was suggested that a simple reading comprehension test given to 1000 potential jurors might tell you whether or not the instructions make sense, Rosenthal had this response, " I don't know if you did that, if you would necessarily get anything, would give you anything scientific that you could rely upon."
Rosenthal said it was not his concern if jurors don't understand instructions. Nor does it appear to be the concern of many other prosecutors and judges.