Tuesday, November 4, 2014

Buyer's Remorse: Another Body in a Body Bag

On Halloweeen, the jury returned its verdicts.  Shawn Ford, Jr., should be killed for beating Margaret Schobert to death with a sledgehammer, they said.  He should spend every day of the rest of his natural life in prison for killing Margaret's husband, Jeffrey, the same way.  They're both death sentences, of course. The difference is that for Margaret, the jury said not only that Ford die in prison, but that he should be killed there.*

One of these days, Judge Tom Parker will sentence Ford.  He has no choice of sentence involving Jeffrey.  He's required to do what the jury said: LWOP, death in prison.  He does have a choice in the other case:  Death, LWOP, 30 years of actual time in prison and then a theoretical chance of parole, or 25 years of actual time before a theoretical chance of parole.

Of the hundreds of jury death recommendations in Ohio, only 8 times have judges rejected the recommendation and imposed a version of a life sentence.  I wouldn't put any money on this being number 9.

All that is, ultimately, a digression from what I want to talk about.

Ohio law says that those verdicts must be unanimous.  And they were.  The 12 jurors who earlier found Ford guilty deliberated again and then unanimously agreed that he should be killed for Margaret's death and spend the rest of his natural life in prison for Jeffrey's.  All 12 signed both verdict forms.  The judge polled them.  All 12 agreed that they intended what they signed.**


One of the things we know about capital juries, even capital juries that eventually decide to kill, is that at first, there are almost always votes for life, even if only one or two.  When the jury returns a death verdict, it's because those one or two lifers eventually gave way.  Because it's tough.  And part of what we need to do as trial lawyers is empower those jurors, give them the tools and the strength to stand up to the rest.  Because all it takes is one, finally, who won't cave.

There isn't supposed to be any caving, of course.  Jury deliberations are supposed to be, well, deliberate.  Reasoned and rational.  Tote boards adding and subtracting.  Balance beams for weighing.  This much on one side, that much on the other.  Jurors are told not to vote for the majority "just to be congenial." 

But it's not congeniality that screws with the verdicts.  it's hostility.  The jury room is contentious, argumentative.  It can get ugly.  Nigger.  Honky.  Fucking cunt.  Shithead.  There have been assaults. 

I didn't want to find him guilty, a juror told us in a case I handled on appeal.  And then I didn't want to vote for death.  But she did.  She found him guilty.  She voted for death.  The law says, basically, so be it.  Jurors can't recant their verdicts once they've been accepted.   Finality, after all.

So it was in Shawn Ford's case.  Phil Trexler in the Akron Beacon-Journal.
A juror who agreed that Shawn Ford Jr. should be executed for the killing of a New Franklin woman now says others on the panel intimidated her over two days of contentious deliberations and she never believed a death sentence was warranted.
Never believed.  Never wanted it.  Voted for it anyway.
“I didn’t want the death penalty at all,” she said. “I fought for hours. I had one juror get in my face saying, ‘I can’t believe you wouldn’t give this kid the death penalty. What’s wrong with you, something’s wrong with you.’
“Yes, [I was intimidated]. It was rough. It was hard. And I’m still not at peace that a death sentence was handed down … I don’t feel a death sentence is right for Shawn. He needs help, not a needle in the arm.”
No, I don't imagine she is at peace.  She said she held the verdict form for 20 minutes, unable to sign it even after she agreed to.  But she did.  Sign.  Death.

And when the jury was polled? 
“I hesitated to say yes,” she said. “I wanted to say no, but I couldn’t. I was looking down. I was shaking. I couldn’t even control myself. But I said yes.”
She caved
[b]ecause of how awful they were. . . . They were screaming at me.
The law, our law, says the jury must be unanimous.  They said they were.  That's enough for the law.

Enough, even if it's a lie. Truth, that elusive thing?  It doesn't matter.  It's all about magic words. Signatures in ink on a verdict form.  Saying "yes" to a question nobody really understands.
After the verdicts were read and the courtroom cleared, the juror said she found herself back with the others in their deliberation room. She said some hugged and others laughed while she wept looking out a window.
“I was furious with them at the end. I couldn’t even look at them in the eyes. I wanted to get the hell out of there,” she said. “I didn’t say a word to anyone. I flung my juror [badge] on the table. One lady who works for the judge said, ‘It’s OK.’
“And I said, ‘No, it’s not OK.’ I said, ‘We’re putting another body in a body bag.’ ”

*Yes, I know, and I assume the jurors knew, that For cannot serve both those sentences.  One keeps him in prison until he dies of natural causes.  The other arranges his murder.  If he is killed for Margaret's murder, he won't have served the sentence for Jeffrey's.  If he serves the sentence for Jeffrey's, he won't have served what the jury urged for Margaret's.  Nobody said the criminal law makes sense.

**Actually, each of the 12 was asked, "Are these your verdicts?"  And each said "Yes."  I've often wondered if jurors asked that question really know that what it means is "Do you agree that this is the verdict you think is correct?"  I"m pretty sure the answer is that they don't.

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