For the People Page 5
Late that afternoon, as planned, I left the office to meet up with Frank, an older man I knew as a client, at the Coalition’s offices. Frank had agreed to show me how he spent his evenings and nights on the street in New York. Frank was a white man in his early sixties, nearly blind. We walked the city for a few hours. Frank showed me how he collected aluminum cans, which could be redeemed for a nickel each at the time. Other can collectors, he told me, overlooked the ones that were dark and flattened from tires or foot traffic. Somehow Frank spotted even the faintest glint of metal in sunlight or streetlight, despite his near blindness. He found more intact cans in city trash cans or on the street, and if they weren’t already crushed he stomped them flat before bagging them to manage the load; he traded in trash bags full of cans for cash once or twice a day. He told me stories about the family life and career he’d had in early IT before things fell apart. I knew he also had a story to tell about his spiral into homelessness, but he didn’t offer it. I didn’t ask. What he told me confirmed the lessons of my childhood—that most of us are walking a ledge and should call ourselves lucky rather than deserving if we don’t slip off.
Shortly after sundown, Frank and I headed for Grand Central station, one of a few nearby places to obtain a free meal. As we lined up behind a hundred other people with their paper plates, I recognized two of the servers as my co-workers from the Coalition. They were my peers—well-educated people my age who had been working with me almost daily for two months. They had no idea I was playing homeless with Frank. Not wanting to be detected or freeze, I had dressed like many of our clients. I was wearing old, worn clothing in dark colors. Everything was thick cloth, in multiple layers. I pulled my hat a little lower and kept quiet as my co-workers put food on my plate. Even as they served me a full plate of spaghetti and watery meat sauce, they didn’t see me. No matter how deeply they cared about homeless people and their issues, the people they served were blurring. I was just another hunched silhouette in a long line of people who had slipped off the ledge and couldn’t pay the rent anymore, who had become unemployed, who were suffering from mental illness or addiction, or who were chronically leashed to poverty. I walked away amazed that my open-hearted, friendly co-workers at the Coalition had mistaken me for a stranger.
Frank and I got our boxes for the night in a garment district alley, taking care to select ones that weren’t wet and didn’t stink of food trash. We took them to St. Patrick’s. After bidding Frank good night and watching how it was done, I climbed into my garment box and lightly folded the cardboard flaps inward to block out the wind and light from the street, keeping the flaps loose enough to make sure I could exit in a hurry. For a couple of hours I lay in the box, listening to street noises like a tent camper listening for bears, then fell asleep fitfully wearing everything I had brought, arms folded and knees pulled up to preserve warmth.
Around four a.m. I woke suddenly to the sound of shouting. Disoriented, I kicked open the box flaps and jumped out to see a man running down the long row of boxes butted up to the stone wall of the massive cathedral. He was kicking every box as he ran, cursing and threatening to kill or fight or maim or do something I couldn’t make out to everyone in every box. People were coming out of their boxes. When one yelled to the man that this wasn’t Vietnam, I realized this must be the veteran. Two of the men were now cursing and agitated, going after him to fight. A couple of others tried to calm him down. Twice the veteran appeared to be walking away, but quickly turned around and came back to renew the commotion. Boxes were displaced, some punctured and torn. After a few more minutes, he stomped off toward where I first saw him and kept going, still shouting until he was too far away for us to hear his words clearly. Once the veteran crossed the street two traffic lights away, the people standing next to me said with authority that he wouldn’t U-turn again and he was done for the night. It got quiet again in the still, frigid air. We all crawled back into our boxes until dawn.
At sunup, we dragged the boxes away. This was the informal deal these homeless men had worked out with St. Patrick’s to allow them to sleep on the wide pedestrian sidewalk next to the church’s walled yard during the frigid night: They had to clear out and clean up at sunrise. They could get close to the iconic power—but not too close, and not in the light of day, and not so people could tell they had sheltered there the night before. Forcible removal of homeless people from that location would have been too public a contradiction of the values that these icons represented: a welcoming, inclusive, and prosperous city of opportunity; a welcoming, inclusive, prosperous, and charitable church. After all, these were a mass of tired, poor, and huddled men. These men were the least of these.
The monolithic and mostly monoracial institutions had disappointed that night; they had given up their stinking secrets. Thanks to the Coalition’s groundbreaking legal work, the law required city government to provide adequate shelter. But the government’s institutional response was to cheat on something as mundane as counting toilets. Charity from whatever source is a virtue, but that night it looked like a soggy paper plate of food for men who were making the reasonable choice in freezing weather to sleep in boxes outside rather than to sleep less protected in shelters. Even my do-gooder peers at the Coalition for the Homeless, who worked so hard for homeless people every day, had disappointed. That night, they were less capable of seeing the individuals they fed than was my guide Frank, who was nearly blind. And religion’s admirable directives to sacrifice and to love your neighbor felt more like slogans—the ephemeral words of a homily delivered behind the giant doors of a shining, gilded space—than what I was seeing on the street, outside those giant doors. That night, my expectations were exceeded only by this mutually supportive, loose affiliation of Black, brown, and white homeless men in worn clothing. Under the streetlights, only the energy of their rising breaths was golden. They were true outsiders. But together they had succeeded in making the institutions let them sleep where they wanted, albeit in a space that was frozen, as hard as rock, and outside the institutions’ walls. The institutions weren’t beyond fixing, but some of their parts were badly broken. The people making them a little better were on the outside.
Exhausted, but feeling infinitely lucky to have a home, I headed back to what I knew would be the warmth of our temporary sublet in Chelsea, where Lisa was surely still in bed. When I got there, I climbed the stairs and opened the door. A wave of heat emanating from the cast iron radiators pushed past me as I went inside. Rubbing her eyes, Lisa hugged me and told me she’d been worried about me, sleeping out in twenty degrees, as I took off layer after layer of clothing. Then she threw me out of bed because she said I smelled bad.
CHAPTER 3
Death Penalty
First Interview at the DAO
Here is a fruit for the crows to pluck…
Here is a strange and bitter crop.
—Billie Holiday, “Strange Fruit”
As a young man, and before law school, I was given an education in the death penalty that determined my career. The death penalty changed my life. Since its beginnings, America has structurally guaranteed its own failure when it comes to criminal justice issues in our democracy, including matters of life and death. Across the country, and across parts of three centuries, we have taken the vote from Black and brown people, from poor people of all types. We take the vote from convicted people, often permanently, but at least while they are in jail or for years after. We suppress the votes of those most likely to be victims of violent crime and most likely to be charged with crimes. Without a vote, vast groups of Americans have no say with elected officials. We get an American criminal justice system designed by and for everyone but the people most personally affected by it. A lot is at stake, sometimes including our very lives.
It was 1984, the year I turned twenty-three, after I finished college. It was the year I was trying to figure out what career to pursue—what to do with the rest of my life.
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I was working as a carpenter’s flunky when the defense and prosecution selected me to serve on a death penalty jury. I knew my selection meant both sides thought I could be fair answering the daunting question of whether another human being who was guilty of a terrible crime should live or die. I wanted to get picked. While some other potential jurors were worriedly trying to get out of jury service or indifferent, I was quietly excited and hoping for a seat on the jury.
Crime and solving crime had repulsed and fascinated me since early childhood, especially terrible crimes like serial murder that were covered so often on the nightly news. They were my Grimm’s fairy tales, but more disturbing. Most of the killers were caught and tried. Serial murder—or at least its detection—was prolific from the end of the 1960s through the end of the 1970s, which were my late childhood and teen years. The Manson family killed seven people over two nights when I was eight years old; I was nine when Charles Manson’s trial began. When I was nine or ten, I watched the ongoing coverage of the Zodiac Killer, who murdered five known victims over time. He taunted the press with coded hints and claimed, probably falsely, to have killed thirty-seven. The Zodiac Killer was never caught. David Berkowitz, the “Son of Sam,” killed six victims over the summer of 1976 before he was caught in the summer of 1977. I remember hearing about Ted Bundy when I was about sixteen. Bundy was a charismatic law student whose vaguely handsome, generic looks seemed to change before your eyes, making him hard to identify. He escaped custody twice, including once mid-trial in Colorado, before being caught, tried, and eventually sentenced to death for dozens of murders and rapes of young white women who had straight hair, parted in the middle. My senior year of high school, the so-called Hillside Stranglers—Angelo Buono and his cousin, Kenneth Bianchi—were caught for kidnapping, raping, and killing girls and women. Ten of their victims were found in California, and two more in Washington State.
But the one I remember the most was John Wayne Gacy, whose victims were most like me. He was caught when I was about seventeen, although he’d started his murders when I was only eleven. I still remember watching the TV screen as the details of his crimes and capture played out over several days on the nightly news, the count of recovered bones and skeletons rising every night. Gacy posed as a contractor looking for help, a friendly clown for children, or a phony lawman with badges, handcuffs, and a black Oldsmobile equipped with spotlights that suggested it was a police car. His known victims were thirty-three young men and boys who were raped and tortured over those six years before his capture, all of whose bodies he had buried beneath his home until he ran out of space and threw the last five in the river. When he was caught, nearly all the bones pulled from beneath his Chicago home came from victims killed when they were in my age range over that six-year span.
At twenty-three, I had been picked to sit on a jury for a crime that was also truly terrible: An elderly woman had been raped and murdered. Her house was lit on fire in an effort to burn it down around her, likely to destroy evidence of the crime, including her body. The defendant had worked for the woman doing maintenance. Her son was an FBI agent, and the bureau flooded the jurisdiction with agents. Within twenty-four hours, they caught the man who would be charged in the case. He was renting a room in a motel near the house. In the motel parking lot they found the woman’s car. On the car’s rearview mirror they found the man’s fingerprint captured in her dried blood.
An autopsy indicated the woman had been raped and her ribs fractured, either during the rape or by stomping, before or after death. The case was sensational not only because of its lurid details and vulnerable victim but also because it came just after the end of the U.S. Supreme Court’s moratorium on the death penalty, the period of several years when even our highest court said that the death penalty was too cruel and arbitrary to be practiced…before it changed its mind.
For an ambitious chief prosecutor in 1984 almost anywhere in America, the case was also a career builder: The victim was white, the defendant black, the death penalty was in play. And we were in Chester County, Pennsylvania—a suburban/rural and, more so at that time, somewhat racist area just outside of Philadelphia. No Democrat had been elected in the county for more than one hundred years. Because the stakes and the publicity were high, the chief prosecutor persuaded the judge to proceed with a legal rarity, the sequestered jury—in our case, a jury that stayed in a hotel together and would return home only after delivering its verdict—in order to ensure there would be no jury tampering, intimidation, or undue influence from media or family.
I was living in my parents’ house and working construction for a kitchen remodeling company, trying to decide what was next. I was drawn to three main options but open to others: language professor, divinity school, law school. I was in the process of applying to law school, among other things, but no one asked me a question that would have uncovered that detail during jury selection. The prosecutor saw a young white male novice carpenter who had attended and graduated from local public schools before college, and picked him. The defense and the judge said I was okay.
The trial started. After several days of observing testimony and other evidence at trial all day while staying in a hotel at night, the other jurors and I heard closing arguments on whether or not the defendant was guilty of the charges. We understood that finding the defendant guilty of first-degree murder would bring on a second phase—a second trial, really—to determine whether he deserved execution or a life sentence. In my mind, as jury deliberations started, the evidence seemed strong that the defendant was guilty of first-degree murder and rape. But my job was to listen to everyone before judging guilt or innocence.
Shortly after we left the jury box to begin to deliberate privately in a conference room that adjoined the courtroom, one of our quieter members stood up and pulled a small Bible from his back pocket, which he held up, opened, and eyed. The Bible was upside down. He mumbled a version of “Thou shalt not judge.” We were silent for a moment. A woman on the jury gently asked him a few questions to suss out what the quiet juror was doing and why. His affect was distant. He answered obliquely, but slowly made it clear that he could not try to render any verdict in the case, which was our purpose. We listened to him, looked around, and huddled while he sat apart. I told the other jurors he had been reading the menu upside down when we ate lunch together earlier, which I had noticed as he sat next to me and corrected. I incorrectly assumed at the time that he had vision issues or must have been tired after several days of trial. We decided to tell the judge. I quickly drafted a short letter to the judge with wording approved by other jurors explaining what had happened and asking the judge to tell us what to do.
The quiet man was removed from the jury without our being told any specifics at first. We later found out that he had major mental health issues that were not disclosed or discovered during jury selection. When asked, he had indicated he had no health issue that would interfere with jury service. He had also specifically answered no to the question of whether he required medication, which was untrue. The quiet man took prescribed psychotropic medication daily. While sequestered in the hotel, he’d had no access to necessary meds at home. After several days without them, he decompensated shortly before deliberations began, and there we were. Perhaps he was too embarrassed to reveal his condition, surprised to be sequestered, and then too afraid to reveal he had lied during jury selection. The judge instructed us to try to render an eleven-person verdict anyway, and without his participation or presence in the deliberation room.
We went back to deliberating. But the trouble didn’t end there. To the consternation of the judge, a couple of jurors sneaked booze into the hotel and led a rowdy party of sequestered jurors that I somehow managed to avoid. More troubling, one of our members, who lived in Pennsylvania but dressed like his idea of a Texan (complete with cowboy boots, big decorative belt buckle, and hat), told everyone early on in trial deliberations, “We know what
we’re here for—we need to get that boy.” Another juror, a German immigrant woman in her late sixties who spoke with a thick accent, said something about “these pretty Jews” in a dismissive tone, apparently referring to another juror. When she was only half-heard and was challenged to repeat it, she went silent. The juror sitting next to her apparently heard her comment, but refused to repeat what she had said. Later, an agreeable middle-aged male juror selected to be foreperson delivered a tearful plea for us to hurry up and come to a verdict quickly because his son would soon be home from college and he wanted to get home to see him.
Despite our jury’s failings, there was also brilliance in how it operated. If we were all strangers and maybe a little strange, when we joined together to deliberate we were also a super brain made up of twelve (or, in our case, eleven) people’s special talents in recalling and analyzing the evidence at trial. Some jurors had perfect memory for details other jurors forgot, and offered thoughtful comments on timing or physical evidence. Others locked on to police procedures and documents or could recite testimony almost word for word and expound on witness credibility and reasonable inferences from the evidence with logical, sharply reasoned arguments. When our different and unique talents and experience led the way, we were an effective team. But when human frailty led, we weren’t much better than a mob whose ability to decide another’s fate was built on emotion and bias. The super brain could also be a super-bad brain.