On that day, July 3, 1996, jury foreperson Kathleen Hawk Norman stood on behalf of the jury and said "death." She then signed the death warrant for the freshly convicted murderer Daniel Bright III and left the courtroom, believing that her jury had delivered justice.
She began thinking otherwise a few years ago, due to evidence revealed during post-conviction hearings by Bright's defense attorneys, Ben Cohen from the Capital Appeals Project and Clive Stafford Smith from the Louisiana Crisis Assistance Center. Later the Innocence Project-New Orleans signed onto the case as co-counsel.
Hawk Norman, a 49-year-old New Orleanian who runs a freight-transportation business, remembers attending those hearings and becoming shocked at what her jury had not heard. They hadn't known that Christina Davis, the woman accused of accompanying -- perhaps luring -- the victim to his death, had already been writing letters to the district attorney, swearing that Dan Bright was not the real murderer. That the state's sole eyewitness, Freddie Thompson, was on parole at the time and thus more likely to have been influenced by police. That prior to the trial, the FBI had taken a statement from a reliable informant who said that someone else, not Dan Bright, was responsible for this murder.
From 1991 through this summer, Hawk Norman attended 11 days of hearings about the case, the last on June 10, when Orleans Parish criminal court judge Dennis Waldron denied Bright a new trial. In his opinion, Waldron asserted that the new evidence would not have changed the jury's verdict.
Not so, says Hawk Norman, who in October filed an amicus curiae -- friend-of-the-court -- brief with the Louisiana Supreme Court on behalf of Dan Bright's application for a new trial. Her brief argues that, even after the trial is over, a juror still has an interest in ensuring that the proceedings were fair: "While Mr. Bright has an interest in seeking his own release, [Hawk Norman] has an interest in correcting the perversion of the democratic process of which she was a part."
Later that month, Hawk Norman was notified that the Supreme Court had accepted two briefs on Bright's behalf, one from the Louisiana Association of Criminal Defense Lawyers, the other from the Innocence Network. Hawk Norman's had been rejected.
In the past few months, jurors in other states have also been approaching the courts, arguing that they have an ongoing responsibility to see that justice is done. The courts have not acknowledged their argument.
In Tennessee, eight of 12 jurors declared that if they had had all the evidence, they would not have sentenced Abu-Ali Abdur'Rahman to death. "To have eight people file affidavits, I've never heard of anything like that," says Abdur'Rahman's attorney Bill Redick, who's been defending death-row inmates since 1978.
In Indiana, after defense attorney and Tulane Law School graduate Juliet Yackel discovered in May that the blood evidence presented at trial was faulty, all 12 jurors signed affidavits supporting DNA testing for Darnell Williams, the man they put on death row. When the Indiana Supreme Court denied the request, one juror filed suit in federal court, demanding access to the biological material so that the DNA could be tested.
Newfound evidence may exacerbate the "lingering doubt" found in two-thirds of jurors who served on death-penalty trials, says William Bowers, director of the Boston-based Capital Jury Project. Launched in 1991 with support from the National Science Foundation, the Project has conducted in-depth, three-hour interviews with nearly 1,200 jurors from more than 350 capital trials.
Today, some jurors may be stepping forward, Bowers guesses, because their doubts of five or six years ago can be more definitively addressed through DNA, which is present in about one out of five murder cases. Given the growing number of high-profile exonerations, jurors may also feel more justified in expressing their doubts today, says Bowers. "They're seeing a lot of cases where mistakes were made," he says, "and they're wondering to themselves, 'I wonder if that happened in our case -- we ought to know before this guy is executed.'"
At one of the hearings she attended, Hawk Norman saw Dan Bright's mother, Rose Bright, whose health has been failing ever since her son was sent to the Louisiana State Penitentiary at Angola.
"I felt so riddled with guilt," Hawk Norman says, "so embarrassed that I'd been duped."
She and the rest of the jurors weren't given all the available facts in the case, Hawk Norman believes. "Keep(ing) information from the jury," she asserts in her brief to the Supreme Court, "makes a mockery of our system and turns citizen-jurors into unwitting accomplices to illegitimate state action."
Now she has nightmares. She recalls how it felt to be sitting in that jury box. "In front there's a table of suits and uniforms -- law and order. Then there was the guy with the disheveled suit next to the guy in the orange jumpsuit accused of murder." The man in the rumpled suit -- Bright's defense attorney -- was bumbling, unprepared and perhaps even drunk during the trial, according to hearing testimony. Hawk Norman believes that she took the wrong message from the flimsy case he presented. "In the absence of a real defense, I assumed that there was no defense to be given," she says. "And if there was no defense, the guy must be guilty."
The judge in his opening comments told the jurors that this trial should not take long. According to the court transcript, Waldron led off the proceedings on July 1 by saying, "We are aware of the holiday weekend that's coming, obviously, on the 4th and 5th, Thursday and Friday of this week. We have been assured by the attorneys that the case would be finished by Wednesday with ample time for everyone to be gone that evening."
"Sadly, while the comment was inappropriate, the judge was right," says Hawk Norman, noting that the trial took two and a half days, with most of the time spent on jury selection. Still, even a day's testimony is a lot to remember, she says, and jurors in this state can't make notes on what they hear. Most states allow note taking, but Louisiana still bars it -- the idea is that jurors should rely on their collective memory rather than depending on individual notes.
In Hawk Norman's memories of the trial, she wishes that she would have given more weight to the trial's "dangling loose ends." The bartender whose testimony was cut off just as she was ready to say something about someone coming into her bar; Bright's alibi witness, William "Yam" Thomas, who had a certain sense of honor about him; and the plaster cast on Bright's left hand, which -- since he was left-handed -- may have made it difficult for him to fire a gun.
Back in March, it seemed as though Bright stood a good chance for a new trial. Hawk Norman wrote an op-ed, published in The Times-Picayune, discussing how it felt to have "played a part in an unjust capital murder conviction." Earlier that month, federal district judge Martin L.C. Feldman had ended a four-year battle between Bright's attorneys and the FBI by ordering the bureau to disclose a 1996 statement from a confidential informant. In it, the informant had advised agents that "Daniel Bright, aka 'Poonie,' is in jail for the murder committed by Tracey Davis."
Feldman, in his decision, rebuked the FBI for not releasing the information before Bright's murder trial and noted that, "given the patent seriousness of the statement, Bright may have been wrongfully convicted of murder."
But, in June, Waldron ruled that neither this statement nor any of the newly revealed evidence would have changed the jury's final verdict. Hawk Norman disagreed, outlining her reasons in the Supreme Court brief, which was then rejected in mid-October, leaving her feeling "like a tossed-away Kleenex," she says.
The juror-court relationship seems to have three quick stages, Hawk Norman explains. At first, when you're chosen as a juror, you're told that you're qualified to make a decision about someone's life and death, she says. "Then, as a juror, you're the center of everything. But when it's over, they don't want to see you again."
In April 2000, Hawk Norman had been relieved to hear that Dan Bright had been moved off death row, after the Louisiana Supreme Court found that evidence in his case did not merit a capital murder conviction. But she still feels "the unimaginable guilt of destroying an innocent man," she says. "His name is Dan Bright, he sits in Angola, and I signed the order that put him there."
"When you're on the stand, you want to face the jury, eye to eye," John Thompson says.
Thompson was 22 years old in 1985, when an Orleans Parish jury sentenced him to death. After nearly two decades, Thompson was granted a new trial; he testified in front of a jury this spring.
Even when the district attorney asked him a question, Thompson says, he would turn toward the jury to answer. Sometimes he would see jurors shaking their heads at the prosecutor's questions, a cue to him that things were going well.
"You're trying to prove everything to the 12 members of the jury," Thompson explains. "They're all that really matters."
On May 8, Thompson's jury acquitted him. Soon afterward, he was walking down Canal Street and ran into a juror from his case, who stopped to talk with him. The juror told him that another juror, a woman, had entered the jury room saying, "There's nothing for us to deliberate -- he's guilty as hell." The foreman asked the juror to explain, Thompson says, and then it became clear that she had not even paid attention during the proceedings.
That was a scary peek into the jury room, says Thompson, because "she went in there with her mind made up."
Premature decision-making is common in death-penalty cases, according to Capital Jury Project interviews. Since the 1970s, capital cases in the United States have been divided into two separate stages: the guilt phase, where the jury convicts or acquits, and the penalty phase, where the jury votes for or against death. Jurors are instructed beforehand to make two separate decisions, first about guilt, then about punishment.
Capital Jury Project director William Bowers found that about half of jurors made their death-penalty decision during the guilt-or-innocence phase of the trial. "Some jurors got so grossed out by the crime and so angry that they just closed their minds," he says, "which in reality, disqualified them from doing what they actually were supposed to do."
Jurors are also instructed that they can't discuss the case before deliberation. But they don't seem to follow that instruction. "Not only did jurors have an idea about the punishment early on," says Bowers, "but they would start bargaining, 'Okay, I'll vote conviction, but I won't vote for death.'" Bowers believes that the death penalty is such a big decision that jurors simply cannot sit back and wait.
It takes little for a capital juror to vote for the death penalty, says Tennessee attorney Bill Redick. "When jurors get in the courtroom and look at the defendant, they're just inches away from convicting," he says. "They don't need to know much."
All capital jurors are "death-qualified," which means they're asked beforehand about their willingness to apply the death penalty, and anyone who can't hand out a death sentence is struck from the jury. Research conducted by University of California-Santa Cruz professor Craig Haney has found that once jurors are quizzed at length about the death penalty, they often enter the courtroom believing that guilt is a foregone conclusion and that death is the only acceptable punishment.
Some jurors show up for jury duty knowing that they do not want to serve on a capital case, says Orleans Parish jury commissioner Josie Windhorst, who impanels between 600 and 800 jurors a month, supplying the jurors for nearly 200 criminal trials in 2003. "I've had people, especially women, who have said, 'Don't send me to a murder trial.' And I will not." Windhorst says that many people tell her that they know someone who's been murdered and, as a result, the prospect of serving on a capital trial would be just too difficult.
When jurors show up at the Orleans Parish courthouse, an orientation judge talks with them about what they can and cannot do. But "human nature is human nature," says Nick Trenticosta, Thompson's former attorney and director of the local Center for Equal Justice. "They go to lunch and say, 'I'm convinced the guy's guilty.'"
Trenticosta has been working with juries since 1988. "And I've had jurors call me on the eve of the execution, saying, 'I didn't know this was happening, what can I do to help?'" At that point, Trenticosta says, a juror's role is long over.
Trenticosta's colleague Paula Montoye sympathizes with someone like Kathleen Hawk Norman, who was given incomplete information. But Montoye too believes that the juror has no role once the trial is over. "All she can do now is educate other people," Montoye says.
This summer in Indiana, as Darnell Williams' Aug. 1 execution date approached, juror John Gnajek couldn't sleep, couldn't eat. "This poor guy was pleading with the court saying, 'It's my fault that this case got to this stage,' says Williams' defense attorney Juliet Yackel.
In a letter to then-Gov. Frank O'Bannon, Gnajek explained that, back in 1987, the jury had been split six to six, half for the death penalty, half against it. "I was one of the jurors who voted for death," Gnajek wrote. "In fact, I played a role in convincing other jurors that they should vote for Williams' execution."
After the Indiana Supreme Court denied DNA testing on July 26, Gnajek, along with the trial prosecutor from the case, filed action in federal court demanding a DNA test. In the end, it was not the courts that eased Gnajek's mind -- "We have had zero victories in court," says Yackel. But on Monday, July 28, with Williams facing execution that Friday, O'Bannon issued a stay of execution to allow for DNA testing.
Yackel learned the art of public defense within the walls of the Orleans Parish criminal courthouse at Tulane Avenue and Broad Street. She's now been representing Williams for 11 years -- he was her first case out of Tulane Law School. "I remember walking into the jail and he said, 'Tell me about your experience.' I said, 'You're my first client,' and he turned white as a sheet," says Yackel. The conversation underscored the huge responsibility she has in protecting someone's life, she says.
Being on a capital jury carries its own responsibilities. After talking with the jurors in this case, Yackel says, it was remarkable to discover "how important the decision was in their lives." When the new evidence came out, the jurors believed that they should be able to lift Williams' death sentence and then "were frustrated that they had no voice anymore."
These days, as Yackel speaks to a jury, she watches closely for the strong personalities, the jurors who are likely to influence others. "Because that really carried the day in this case," she says.
Yackel doesn't fault the trial prosecutor, saying he didn't have all the correct information at the time. Tennessee attorney Bill Redick does not say the same about the prosecutor in his client's case. In June, the Washington D.C.-based Center for Public Integrity issued a report titled "Harmful Error." The Center announced that, across the nation, local prosecutors had "stretched, bent or broken rules while convicting defendants." Since 1970, according to the report, judges and appellate courts had cited prosecutorial misconduct as a factor in at least 2,012 dismissals, reversals or sentence reductions.
The report's database lists a number of Louisiana cases, including John Thompson's, in which a prosecutor hid blood evidence. It also includes a lengthy section about Abdur'Rahman, because last year, six high-ranking former Tennessee prosecutors filed an amicus brief in the U.S. Supreme Court on his behalf. The brief was a pointed critique of prosecuting attorney John Zimmermann, who handled Abdur'Rahman's conviction in 1987. "The prosecution fell far short of the standards of our state court system," read the brief.
In a 21-page response to the report, Zimmerman denied the charges. "The accusations in the Amicus Brief that I knowingly made false statements and connived to orchestrate a conviction or death sentence is not something I have ever been faced with prior to these final stages of this case," he wrote.
"This is the poster case of how cases can go wrong," says Redick. On June 6, 12 days before Abdur'Rahman was scheduled to die, the Sixth U.S. District Court of Appeals gave him a stay of execution so they can hear claims about ineffective defense.
In her affidavit, Abdur'Rahman juror Yolanda Howard wrote that, among other things, the jury should have heard that no blood was found on the defendant's clothes, even though the crime scene was exceptionally bloody. "I am upset that all this information was withheld from us in deciding this man's life," Howard wrote. "That is a very hard decision to make, and I think we should have had complete information."
"I like juries," says Emily Bolton, attorney for the Innocence Project-New Orleans. She says that they bring a lay person's common sense to the courtroom, allowing them to "smell a stinking fish that an attorney might miss."
The U.S. Supreme Court made this same basic point in its landmark 1968 case Duncan v. Louisiana, which guaranteed jury trials to state court defendants, including Plaquemines Parish resident Gary Duncan. "Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge," the opinion read. "If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it."
Yet once jurors enter a criminal courtroom, Bolton says, they are perhaps naive. "They know that you have a right to an attorney and they trust the system to implement that," she says, but they would be stunned to hear how few resources are devoted to defense. She cites the case of her clients Gregory Bright and Earl Truvia, who were exonerated this summer after serving 27 years for a murder they didn't commit. "I'm sure that Greg and Earl's jury, which came back in nine minutes, thought there was no more to the case." But jurors will not hear all the facts if the public defenders don't have investigators working on the case, she says.
Bolton believes that most bad convictions are due not to evidence suppressed by prosecutors but rather to evidence "that's just not dug out." Impoverished public defenders don't have the resources to do a thorough investigation, and over-stretched police detectives can only spend so much time on each case.
"We ask jurors about their qualifications," says Bolton. "If I were the juror, I would ask, 'What is the parity of funding in this case? Will all the evidence be presented?'"
Kathleen Hawk Norman says that her jury service has been valuable -- but not in the way she might have expected. "Had it not been for that experience, I would be going along believing that system worked," she says.
Seven years ago, before serving on Bright's jury, she was uncertain in her stand on the death penalty. "Now I'm solidly against it," she says.
Hawk Norman now finds herself an activist -- not a role that comes naturally. "I've never been a fighter and it's not like I've been leading the protest lines," she says. As a result, she hopes, she may be able to reach people -- mothers and businesspeople like her -- who might tune out other criminal-justice activists.
Armed with what she knows now, what sort of advice would she give to someone called for jury duty? She pauses. "I guess I would tell them, 'Believe no one, trust nothing, question everything,'" she says.
- Donn Young
- Kathleen Hawk Norman