Jones gave birth to three children, divorced her husband, worked in modest jobs, became a computer operator, and then served as a private nurse in a woman’s home. She avoided serious problems until she was forty-three, when another man, Cook, brought trouble into her house. In her self-portrait, she again stood as a victim of her sad and innocent helplessness.
When her father became terminally ill with cancer, Jones moved to her parents’ to care for him, leaving her apartment on Seventeenth Street in Birmingham in Cook’s hands. She professed not to know that Cook was a major dealer in marijuana whom the police and federal agents were tracking, and had no idea, she insisted, that he was storing drugs in her flat.
She was kept busy by chores for her father. “My mother was a schoolteacher, and I stayed with him, taking him back and forth to the doctor, chemo treatment,” she said. “I had to do all the running around. I was dropping my mom off at school first, dropping my grandson off at day care and my other two kids at school. That was my routine every morning. Then I’d return to care for my father.”
Her parents had no washing machine, so occasionally she took a load of laundry to her own place. She happened to be there one day when the police burst in on a search warrant. “I got the clothes I had in the car, put them in the washer, took a shower,” she remembered. “When I got out of the shower, I heard somebody banging. I came out undressed, I saw all these cops, and I said, ‘You don’t have to break it down! I’m coming!’ By that time they had the burglar door off the hinge.
“I was already in the living room. They was hollerin’ and yellin’ and telling me to get down, putting guns to my head, it was awful. I’ve never encountered anything like that in my life. It was awful. They didn’t even know who I was. They said, ‘Who are you?’ They handed me a search warrant, and my name wasn’t even on the search warrant.”
They clearly knew what they were after and where it might be. “They did not go through the house,” she recalled. “They went straight in the kitchen and looked under the sink. I heard somebody say, ‘Bingo. We got it right here.’ They never showed me what they got. They told me it was marijuana.” There was enough to charge trafficking, which is often based not on any proof that a person distributed the drugs but on the sheer volume in possession: in Alabama, more than one kilogram of marijuana is considered beyond what someone would keep for personal use.
The police officers asked if Jones knew Ronnie Cook, and she gave them nothing. “They asked me about him, I kept tellin’ them I didn’t know who he was. One said, ‘We’re gonna take her downtown and lock her ass up.’ ” But they didn’t, not then. A sheriff’s deputy just left his business card with his phone number and asked her to call if she knew anything about Cook, evidently their real target.
She didn’t call. Perhaps the authorities arrested her later out of pique that she wouldn’t inform, speculated her lawyer, Salter. The assistant district attorney who prosecuted her, Joe Roberts, seemed to say as much. “If she would have given him the information that it was Cook’s, my guess is that she would have helped herself,” he told me. “I wish she would have taken advantage of the opportunity to work the case off. It was just my opinion that she could have worked it off.”
Cook, meanwhile, was doing just that. Arrested later by the FBI on another drug charge, he pleaded guilty and ended up with a relatively modest eight-year sentence by testifying against bigger dealers before several grand juries and in three trials.31 He was prepared to testify for Jones.
Salter had opened her trial by telling the jury that the drugs belonged to Cook, not Jones, and that as the real culprit Cook would take the stand to swear that they were his. It was a slightly odd assertion, since Salter represented Cook as well. But after the state rested, Roberts, the prosecutor, paid Cook a visit in federal prison to give him a friendly warning: If he admitted under oath to owning the marijuana found in Lydia Jones’s house, he would be prosecuted by the state. His plea agreement had been made with the federal government only, and on a different drug crime.
It was a canny threat cleverly combined with affected concern for Cook’s Fifth Amendment right against self-incrimination. “I knew what he was going to testify to,” Roberts told me. “I don’t want to make it sound that I was just a civil libertarian. I didn’t want him to testify. I didn’t want him to say they were his drugs. That doesn’t happen normally if you have counsel to advise you. I just wanted to make sure he understood that he would be prosecuted. If he was going to take responsibility for it, then that was his decision.”
By the book, Roberts should have gone not to Cook but to his lawyer. Instead, just the two of them had a jailhouse conversation, as Roberts reported to the trial judge in a later hearing. “I said, ‘I would suggest that you talk to your attorney before you testify. Have you done that?’ He [Cook] said, ‘Well, I am planning on talking to him this morning.’ ”
What Roberts claimed he did not know was that Cook’s lawyer was also Jones’s. And when that was revealed in court, just as Cook was about to take the stand, it caused a flurry of concern that Judge Mike McCormick failed to resolve. In a meandering colloquy with the judge, Salter made hand-wringing remarks—“I am sort of in an awkward spot”—and suggested that perhaps a mistrial should be declared and he should be replaced as Jones’s attorney. Judge McCormick seemed irresolute, suggesting instead that Cook be assigned another lawyer if he desired and be advised of his rights against self-incrimination, which he could waive and testify if he wished. In a dim recollection of the case, the judge told me that he’d rather Salter had stepped down as Cook’s counsel; McCormick did not realize, apparently, that since Salter’s case with Cook was federal, a withdrawal would have required a federal judge’s approval.
Salter protested that Cook should not face a state charge while under a federal plea agreement, especially since state and local police had participated in that federal investigation. Neither Judge McCormick nor Assistant District Attorney Roberts bought the argument. “There would be an obvious problem if he confesses to this crime under oath,” the judge declared. “It seems to me that the state would not only have the right, but the obligation, to prosecute him under those circumstances.”
Salter floated the idea of immunity for Cook, but Roberts wouldn’t have it, leaving Salter with two clients holding clashing interests in the same trial. “I did not feel I had a conflict representing Ronnie until the state threatened to prosecute him if he testified,” the lawyer told me later in his conference room. The place felt like a small museum of an earlier era. Along the wall, glass cabinets contained elaborate meerschaum pipes and a couple of Prussian-looking helmets. Salter, wearing a black shirt and a short white beard, fidgeted nervously at the end of a heavy table. “It was very unusual, what developed in the courtroom when the prosecution threatened him. It was being held over his head to prevent him from testifying,” the lawyer said. “It did put me in an untenable position.”
Even Roberts, the prosecutor, told the judge, “I think there is a huge conflict in this case,” and the judge agreed, telling Salter, “You have a conflict if you put him on the stand and he makes a judicial admission. You can’t represent both clients.” So everybody understood the problem, and nobody solved it.
Despite this likelihood of state prosecution, Cook came to court that morning ready to testify that the drugs were his. With the jury out of the room, Judge McCormick questioned him closely to be sure that he understood the probable consequences, and offered to appoint another lawyer to advise him. Cook stood his ground at first, noting that he had already told the police in his federal case that he owned the marijuana. That was different, the judge admonished; swearing to it under oath in open court could get him charged.
Salter then stood up and rambled his way through a most peculiar form of questioning, alternately asking Cook and advising Cook, coaxing him and warning him. He was trying to get Cook’s testimony and trying simultaneously to keep Cook from giving it. “It is a little bit of an aw
kward situation for us to call you as a witness in the case.… No lawyer wants to put his client in a jackpot or give them any risk of exposure. I certainly don’t want to do that in your case.… She would love to have your testimony. I don’t want to see you get in trouble. And I am in conflict.… Many lawyers, many good lawyers would probably tell you, Don’t do it. That’s where it becomes a problem for me. She would love to have your testimony.… But if that truthful testimony might expose you to some further criminal charge, that’s the bind that we are in.… And nobody is going to be mad at you if you make a decision not to testify.”
After a recess, Salter came back and told the judge that Jones had decided that she didn’t want him to call Cook. The judge asked her whether that was true, and she never answered, although the transcript says she nodded. “It wasn’t a nod,” she told me, remembering far back to that icy moment in the courtroom. “I felt betrayed. I felt like I had just died, you know. I didn’t change my mind. I got kind of upset, because it’s like Salter switched over. He did a switch on me. I was looking at him like, What are you doing? And they kept asking me, Ms. Jones, are you clear about what’s going on here? And I never answered them, because I was dumbfounded. I was like, what did I miss?”
So Cook never testified to the jury, and Jones’s lawyers never replaced his testimony with documentary federal evidence of his trafficking, which might have reinforced their opening assertion that the drugs were his. The jury convicted her, and she received the mandatory life sentence without parole. “I didn’t cry or anything,” she said, “because I knew somewhere down the line that God just wasn’t gonna let it stay like that, because I knew I hadn’t done anything.”
While Roberts, as prosecutor, felt satisfied with the guilty verdict, because he thought she was culpable in letting Cook use her house for drugs, “to be honest, I never felt real comfortable with the sentence she got,” he said. “I didn’t feel she was adequately represented.”
Behind bars, Jones made a smart friend named Paula who read the transcript and knew enough about the law to be more appalled than Judge McCormick had been. Paula “kept writing and writing” until a letter found its way to Bryan Stevenson of the Equal Justice Initiative, who filed an appeal just two days before the deadline. The victory finally came in the Alabama Court of Criminal Appeals, which ordered a new trial. Instead, the prosecution dropped the trafficking charge and let her plead guilty (although she insisted she was not) to simple possession, which got her out on probation. She had been locked up for six years.
Prison changed her. “It’s a place that nobody wants to be. The majority of the guards are men. You would have women saying they were sexually assaulted. I did not see it for myself.” At least she got visits from her children and her mother. Her father, whom she had left her apartment to nurse, died before her trial.
“I am different. I’m very withdrawn to a certain extent when it comes to outsiders. I feel like I can’t trust anyone. I feel down a lot. I really feel that I’m not worthy to be in society because I’ve done something bad, which I haven’t—but I’ve been in a bad place.”
MITIGATING EVIDENCE
After conviction, the penalty phase of a trial can be crucial, especially in a capital case where the jury must choose between prison and execution. To decide, jurors weigh aggravating and mitigating factors: how heinous the crime on the one hand, how abusive the criminal’s childhood on the other. This part of the process can divide the effective lawyers from the inept, and those with resources to research the client’s past from those without the time and money.
Zacarias Moussaoui, who confessed to a planned involvement in 9/11-type hijackings, escaped a death sentence because nine jurors saw as mitigating factors his “unstable and dysfunctional family” and his alcoholic father’s “violent temper” that exploded into “physical and emotional” abuse.32
They would have known nothing of this had his public defenders not been granted government funds to assemble a team of lawyers, interpreters, and mitigation specialists who made five trips to Morocco and France, where Moussaoui spent his childhood. They interviewed family members and gathered records showing a pattern of mental illness, hunger, and beatings in his family. They persuaded his two schizophrenic sisters to give videotaped descriptions, which were shown in court, of the hunger and brutality they had endured growing up in a French public housing apartment.33 Death required unanimity, and the jury gave him life.
The mercy tempered Moussaoui’s contempt for the American judicial system. He had been a difficult client, vilifying his lawyers, sending the judge obscene notes, and shouting in court, “God curse America!” He had no expectation of justice to begin with, a view reinforced when he was denied his constitutional right to put on a vigorous defense. He wished to call captured al-Qaeda operatives then in CIA prisons abroad, including the supposed planner of the 9/11 attacks, Khalid Sheikh Mohammed. They would testify that he had not been part of the plot, he argued.
The Justice Department refused to produce them, citing the need for secrecy but clearly worried that the prisoners would talk about being tortured. In response, the judge removed the charges carrying the death penalty. She was reversed by the Fourth Circuit Court of Appeals, which ruled that to satisfy his right, Moussaoui could introduce intelligence summaries of the captives’ interrogations. These made his argument but not persuasively, and he turned his back on the process. He pleaded guilty—to a role not in 9/11 but in a future plot to fly a plane into the White House—setting up a penalty phase as elaborate as a full-blown trial would have been.
That such mitigating evidence could be mustered, that a jury would show him something less than vengeance, seemed to crack the shell of his hatred. He filed a motion asking to withdraw his guilty plea, saying, “I now see that it is possible that I can receive a fair trial even with Americans as jurors.” There were no legal grounds for granting his request, however, and the judge refused, pointing out that he had waived his right to a trial. He resides at the super-max federal prison in Florence, Colorado.34
Ronald Rompilla had lawyers who were considerably less probing. As local public defenders, they were heavy on cases and short on investigative funds, and they accepted at face value the assertions by Rompilla and several relatives that his childhood had been normal and healthy. They failed to look further, even into official documents that told a different story.
During the penalty phase, therefore, the jury that had convicted him of repeatedly stabbing a bar owner in Allentown, Pennsylvania, and setting the body on fire never heard that his parents were both alcoholics who fought violently, that his mother drank heavily during pregnancy, that he probably suffered brain damage from fetal alcohol syndrome, that his father beat the children with belts and sticks and fists and locked him and his brother in a filthy wire-mesh dog pen, that Rompilla and his siblings went to school in rags, that he suffered from mental illness including schizophrenia, and that testing in ninth grade put him at a third-grade level. “There were no expressions of parental love, affection, or approval,” wrote an appeals court judge in dissent. “Instead, he was subjected to yelling and verbal abuse.… He had an isolated background, was not allowed to visit other children, or to speak to anyone on the phone.”35
Much of this information was contained in a public file on an earlier conviction for rape and assault, a file kept in the very same courthouse where Rompilla was tried for murder. But his lawyers never read it, even after the prosecutor warned them twice that he would introduce that earlier case as an aggravating factor in sentencing.
“If the defense lawyers had looked in the file on Rompilla’s prior conviction, it is uncontested they would have found a range of mitigation leads that no other source had opened up,” wrote Justice David Souter for a five-member majority of the Supreme Court, which found ineffective assistance of counsel and overturned the death penalty.36 Although Pennsylvania had the option to retry the sentencing phase, it chose to enter a plea agreement with Rompilla fo
r life imprisonment.37
The case commanded special attention because the appeals court judge who had written the 2–1 opinion rejecting Rompilla’s argument was Samuel Alito, then of the Third Circuit, soon to be named to the Supreme Court. He reasoned that the defense attorneys had performed adequately, having heard no suggestion of problems from five of Rompilla’s relatives or three mental health workers who had examined him. Alito didn’t want to send lawyers chasing needles in haystacks—the same argument later used by Justice Anthony Kennedy in his Supreme Court dissent. Both men gave little attention to the end result: a jury handicapped by ignorance. As Souter said, “Although we suppose it is possible that a jury could have heard it all and still have decided on the death penalty, that is not the test. It goes without saying that the undiscovered ‘mitigating evidence, taken as a whole, might well have influenced the jury’s appraisal’ of [Rompilla’s] culpability.”
He was quoting from Strickland, in which the Court had ruled that a lawyer who made serious errors was not functioning as “counsel,” and from Wiggins v. Smith, a 2003 case of similar circumstances that had set benchmarks for evaluating lawyers’ performances in the penalty phase.38 Alito did not faithfully observe the precedent, conjuring up differences where few existed. Lawyers for Kevin Wiggins failed to follow obvious leads, he noted, where “Rompilla’s trial attorneys had a body of evidence that suggested that a further investigation into Rompilla’s family background would not have been productive.… They interviewed numerous members of his family.”39 Perhaps if Alito had ever defended a murderer against the death penalty, he would have understood the effort needed to penetrate family denials. But few defense attorneys are elevated to the bench at any level, much less to the Supreme Court.
Rights at Risk: The Limits of Liberty in Modern America (Vintage) Page 14