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http://jaygaskill.com/humancondition.htm

THE ULTIMATE HUMAN CONDITION

A DREADFUL MURDER CASE

ILLUMINATES

The Meaning of It All

by

Jay B. Gaskill

↓

Copyright © 2005, 2007

by Jay B. Gaskill

SET ONE:

LIFE, DEATH, CRIME, PUNISHMENT

& GOD

Note: The Introduction and my first four postings serve to set up the discussion of an important criminal trial. Then my account of the “Jefferson Matley” case occupies all the postings from V (June 8^th entry) through XIV (the June 23^rd entry) disclosing his final sentencing. The final four postings address the implications of that case on several levels…

Dante understood his era as a time when most people thought in concretes, while some few were able to think allegorically. My account will be a more abstract vision than Dante’s, but it’s made up of metaphor and allegory as well, because the topic stubbornly continues to elude mere prose.

A Journey Begins…

What if you woke up today from a sleep that began before the “great corrosion”? Assume you had a crash course in “modern” culture. What would a survey of our moral foundations in terms of current religious and anti-religious sensibilities look like? My own survey reveals six general approaches to the problem of ethical authority:

1. The rational, religious mind incorporating the promise of post-mortal consequences (that the arch-materialist/empiricists say is inherently unverifiable within their framework).
2. Post modern mysticism which (at its best) promotes an ethics-friendly spiritual hedonism that offers immediate psychic rewards for the “right” path.
3. A “quivering blob” humanism in which the religious underpinnings of common moral precepts are reasserted in an “as if” model. Think of the Judeo-Christian or classical moral ethos without any “supernatural” baggage.
4. Classic humanism framed as the appeal to tradition and “human commonality” without any resort to religious belief or post-mortal consequences. A problem: All purely secular forms of humanism fail to answer the three linchpin questions that ultimately must be addressed by all authentic ethical systems:

Why care?

Why bother to act?

Why is any of this relevant beyond one’s own mortal term?

2. Materialist utilitarianism as the greatest good for the greatest number where the “good” is defined either in materialist terms (a chicken in every pot) or autonomous terms (my life, my sins, my drugs);
3. The stance of a cautious pragmatic majority (I find this attitude all too typical of the productive intelligentsias of the educated West). This moral compass is one part the weakened cultural respect for ethical tradition (here the retreating ghost of Pascal’s wager is evident) and one part get-ahead social calculation.

Welcome to my journey.

For years I have puzzled about the greatest question for those of us who love life. What is there for us after our mortal time is up? I am calling this the First Question. It is also the Last Question.

I have formed an idea, a mental picture of structure of reality, that seems to answer the First and Last Question, but its description eludes all the English language expressions and metaphors I have learned since birth.

But there are descriptions contained in seemingly contradictory elements of certain religious faiths that come close. My first two examples:

a. In Hindu religious thought, the Atman and the Brahman represent the deepest unchanging self (A) and the universal self/ultimate ground of reality (B), respectively. Neither are deity yet somehow both are; one is resident in the individual yet universal; the other is universal, and beyond the individual.

b. In Roman Catholic religious thought, the communion of saints is the grand vision of a living community of good men and women, whose essential humanity and individual personalities still exist in relationship with us.

Prepare to shift gears:

Today, I am in my California office on a sunny day.

Yesterday, I was on an Interstate Highway, speeding through South Eastern Idaho toward Salt Lake City.

Early morning rain had drenched the reclaimed desert. I watched puddles glinting in tilled soil, fields of grasses and hay slipping by the window in subtly varying shades of deep green. Then I saw two dappled horses nose to nose, patches of glacier green sage, followed by those thousand foot long irrigation lines – wheeled pipes anchored at the water supply end that form green crop circles in the desert soil.

All of this unrolled under a turgid, wet sky, where plump clouds hovered distantly over a dead volcano (“twin buttes” on the Oregon Trail maps), then the freeway cut through craggy, mossy broken lava rock floes…

This called to mind a different drive, one I have yet to take, to a California prison where convicted murderer named … (I’ll call him Jefferson Matley.) … still lives. Whether Jefferson Matley is one of the six hundred plus inmates awaiting a death sentence in California (the wait can take fifteen years) or is serving out a forever term in prison, well that is at the end of this story. And his story will occupy us for several postings.

Why talk about this man at all? I believe that the deeper we penetrate into anything particular, the more we encounter the hidden universals than animate everything. Jefferson’s story has a lot to tell us about those core ethical questions I raised on June 1: Why care? Why bother to act? Why is any of this relevant beyond one’s own mortal term?

I.

The case of the People of the State of California vs. Jefferson Matley

A disclaimer: A number of years ago, while a senior trial lawyer in a public defender’s office in the Bay Area, I handled a case that I can never forget. In the telling, even at this late date, there are secrets I still must keep. My narrative tracks a death penalty murder case that attracted a good deal of notoriety. Important details have been altered to protect the privacy of the players. No privileged attorney-client communications will be disclosed here. Did my unnamed client admit his guilt or protest his innocence? You will never learn that from me. Did he testify as to his guilt or innocence? No. But that is a matter of record.

“JM’s” was one of those cases where the details of guilt phase defense had almost nothing to do with the essence of the real story which was, from the very beginning, about whether “Jefferson” would be sentenced to death.

I have cut close to the edge here, because of my intimate knowledge. But my narrative is crafted so that it could have been reconstructed from police reports, press accounts, court records. But I must acknowledge that I will briefly slip over into that “nobody but his lawyer could know this” territory.

A personal note: Death penalty trials tend to chew up the people assigned to defend the accused. I suppose this is because the very nature of a penalty defense – after all, the whole presentation leads to a heartfelt plea for mercy – essentially precludes the professional detachment of a lab technician, psychiatrist or social worker. Your soul is exposed to the corrosive effects of the criminal mind because you job requires you to engaged directly with that mind. To be effective in a death penalty case, you need to know the heart of a murderer whose crimes were so serious that his life or death hangs in the balance. And you need to speak credibly to a jury who has been selected because every member has qualified as someone who really could impose the death penalty. Cool detachment just won’t cut it.

Everyone in my office knew that the “Jefferson” case was going to land on a desk within a day or so. I was probably one three trial lawyers who were both suitable and available. Everyone already knew about the case because the killings themselves had gotten blanket media coverage, television, radio and print, until the crime spree ended with a helicopter manhunt and, finally, an arrest. Jefferson Matley, of course, wasn’t the actual name of the man everyone saw standing in front of the judge in a jail jumpsuit. He was a black male in his early 20’s, a decent looking young man, not someone you’d type as a hell raiser or pathological murderer. Jefferson was raised in a small family by a mother whom we’ll be calling “B”. She was a piece of work and will figure prominently in the trial.

Jefferson had been interrogated for hours following his arrest. It was always a marvel to me how readily people arrested for serious crimes agreed to discuss their cases with clever and determined police detectives, even after being warned of their Miranda rights.

An aside: I remember a distinct moment in the guilt phase of the trial when the halo effect vanished. The halo sometimes emerges early in a defense case – the kind raised by mentions of “open mind” and “reasonable doubt” – when you’ve done well with cross examination and opening statements. It happened about halfway though the evidence of Jefferson’s several hour rambling police interview, played to the jury on a tape recorder. One glance at those juror’s faces: The halo was gone and an uphill struggle stretched out before me.

It was clear at the very outset that the DA’s office would seek the death penalty. So those of us eligible for the assignment were braced for a life change.

The public defender intake file in any case – including the one dropped on my desk on morning after the 6, 10 and 11 O’clock news on all Bay Area channels had covered Jefferson’s arraignment – is a skinny manila folder containing some printed forms, filled out by hand. It typically contains some brief biographical details, a rap sheet when available, the charges, in this case a thick document, and our confidential intake interview, again a long hand written narrative. In Matley’s case there were many more biographical details than usual, but the arrest and other police reports that often came with a typical robbery case were missing. All that would come later, after a formal discovery process.

Three and a half years later, Jefferson Matley’s files would fill the file boxes that lined one entire wall of my office. I would need a great deal of help in this case. As was the practice, I selected a second chair counsel. [He later left the office and a new co-counsel was picked. An investigator was assigned and immediately began work. Before the case was over several investigators would have worked on some aspect of Jefferson’s case.

Someone – the authorities were well prepared to prove it was Jefferson Matley – had broken into three homes and one business, and on each occasion shot everyone there at close range before leaving with money or other valuables. Killing in the course of a robbery or burglary is a special circumstance murder – death penalty eligible. There were three dead bodies and two who had been left for dead. Another way to describe these plucky survivors: live witnesses.

A chilling piece of this, one I didn’t learn about for a few days: In one of the burglaries, a girl was home alone. She was tied up on a bed then shot through the torso. After a time, her would-be killer asked, “Are you all right?” Wisely she did not answer.

Now I need to talk about eyes. Ironically, I had represented Matley years earlier in juvenile court, one of hundreds of cases where a kid is brought to Juvenile Hall for stealing or something else, held for a while until some parent or guardian takes custody again. There was very little remarkable about that case.

Flash forward: The hardened young man who was arraigned for these murders had a cautious poise about him, his appraising eyes looking back and forth around the courtroom. [Prisoners in his situation rarely get see the outdoors at all at all, and their arrival in a courtroom expands the filed of vision several fold.].

When I first met Jefferson Matley – there is no other way to put it – I noticed that he had dead eyes. I don’t mean the unseeing eyes of a blind man, whose unseeing eyes fail to betray recognition. These eyes (and yes, over the years, I’ve encountered others) were attentive, but they failed to betray any human caring. It was as if there was something missing behind them.

I quickly buried that impression. It would do nothing but get in the way over the next series of interviews; many talks with Jefferson would be needed to build confidence and trust.

But a couple of months later someone associated with the case took me aside and said, “Did you see those dead eyes? Those are the eyes of a killer.” I shrugged. I was well beyond that.

Or so I thought…

II.

Delay…

The typical run-up to trial of a California death penalty trial is filled with defense motions (think of hounds nipping at the legs of a charging rhino) and the real centerpiece: construction of the “social history” of the defendant. Because no one has ever defined the limits of mercy to the satisfaction of a death penalty defense attorney, no biographical stone is left unturned in the hope of uncovering the key to persuading at least one juror (it takes twelve to execute) to spare the client’s life. Delay is very helpful when – and only when – the time is used well by the defense.

Of course, delay serves one additional purpose in a high publicity case, a purpose that benefits both sides: It may obviate the need for a change of venue. This is because the white heat of public attention is fickle and easily distracted when the case has taken its place among the mountain of old news. For public servants like DA’s and public defenders (unlike celebrity lawyers), a change of venue means spending weeks in a bad motel, not being with family, and not having the daily support and counsel of colleagues.

Of course the defense has other reasons for delay. In the defense business, a client’s death by natural causes is a victory of sorts because it prevents the execution. So every year the trial is delayed is one more year the client is alive.

Then there is the little appreciated matter of possible character transformation. The decision to execute is more difficult for many jurors when the man (and it’s almost always a man) before them is no longer the “same person” as the killer whose crimes were committed years earlier. No one can really orchestrate this transformation, which – truth be told – is very, very rare.

So Jefferson’s trial was delayed for several years. Was the delay worth it to the defense? I’ll get to that soon enough.

Orchestrating trial delay of a major high publicity case is somewhat easier in a major urban jurisdiction. The defense benefits from these high-crime venues because, at any moment, the sheer volume of un-adjudicated criminal cases can swamp the system. While extensive plea bargaining serves as a sort of safety value to relieve these pressures, the system as a whole does not favor the speedy trial of the large, high impact cases like Jefferson’s. Because of the complexity of jury selection and the fact that – in California and many states – there is a bifurcated trial – guilt and penalty – death cases typically take months to try. Jefferson was to be no exception. I started the trial in the summer and barely finished it before the Christmas holidays. So finding a spare courtroom (and not just any judge will do) is a lot like finding a place to land a 747 in an area with a bunch of highly crowded small airfields.

But we used the time effectively. Obtaining a truthful and complete biography of someone who has had several brushes with the law is more difficult than it sounds because you are trying to get to the back story, the material that never finds its way into a probation report, news story or police report. In Jefferson’s case, it took us several weeks (using a court order) to acquire all of his archived juvenile records. But we did find the defense equivalent of pay dirt, although I didn’t immediately recognize it for what it was.

Jefferson’s mother, the women we will call “B” would turn out to be a key to understanding Jefferson’s behavior. Of course, a difficult childhood is the most common back story of almost all the criminals I’ve represented. And a “troubled childhood” is more common than many people realize, rarely amounting to enough to mitigate punishment. After all, there are so many counter-examples: the life stories of high achievers who came from equally troubled backgrounds. No defense attorney in his/her right mind would maintain that even a brutally deficient childhood amounts to a free pass when sentencing time arrives. That acknowledged, something in Jefferson’s history seemed unusually important.

III.

Soon after Jefferson’s arrest for the murders, his mother “B” started haranguing the authorities for the return of jewelry the police had seized at their apartment. These valuables were being held as evidence in the belief that they were stolen goods that Jefferson had brought home for his mother. To the police, “B” appeared to be far more concerned about these jewels than her son’s fate.

A pattern of major criminal behavior, a run of burglaries or robberies for example, never pops out in someone’s adult biography like a sudden case of cancer. There are always precursors. Almost without exception in my practice, these precursors first show up in juvenile court.

Of course Matley had a juvenile record. As I noted in my June 8^th posting, I was a little surprised to notice my own name on one of his files, having representing him in a routine appearance, but I shouldn’t have been. For one of the years when Jefferson was “active” to the juvenile court, my assignment brought me into contact with hundreds of juveniles.

When Jefferson was in his early teens, he got in trouble for a number of “small” things (the sorts of offenses that would send middle class parents into therapy, but in the Matley family were a bit more like schoolyard pranks). About this time, B took up with a good man.

“Abe” was a decent African American man, a coach who had taken a special interest in young Jefferson, whom he recognized as a bright kid, with promising athletic talent and problems in school. Abe and Jefferson quickly formed a father-son bond. Abe insisted that Jefferson buckle down, study and get good grades. But the ever mercurial B dumped Abe, then contacted Jefferson’s probation officer, claiming that Abe was a bad influence. The PO cooperated with Mom and Abe was blocked from contact with Jefferson.

Jefferson’s next run of offenses were more serious. While in Juvenile Hall, a contract psychologist “Dr. Hall” (reminder: all these names have been changed) did a careful diagnostic workup. His conclusion was striking. The family dynamic was so bad that Hall made a prediction: If Jefferson was not taken away from his mother’s influence, his crimes would be increasingly violent and all the victims would be women.

So Jefferson was committed o the California Youth Authority (CYA).

IV.

Jefferson’s tour in CYA was a way station – as so often is the case with others –on his way to state prison. But to this day, I refuse to believe that it had to turn out that way, especially if the system had been capable of following Dr. Hall’s advice.

Of course, as my late father was fond of saying about life’s “If only” questions: “If frogs came equipped with wings, they wouldn’t keep bumping their asses when they hop.”

The Juvenile system is famous for soliciting psychological advice that it is incapable of implementing.

Yet, there was one more notable event in Jefferson’s life, even in Youth Authority:

Another male counselor established a fatherly relationship with Jefferson. In the disciplined camp environment, Jefferson thrived, achieving good grades and a strong work ethic. The bond of trust with his counselor was such that one day Jefferson warned him of an escape plan. Being a “snitch” in YA is hazardous to one’s health. I am morally certain that Jefferson made the warning because he trusted his counselor and because he knew it was the right thing.

As a result of Jefferson’s tip-off, the escape never took place, and lives were probably saved.

When Jefferson was eventually paroled from Youth Authority, he lost all contact with the counselor. After all, he was now a full fledged adult in the eyes of the law.

So Jefferson Matley went straight to his mother’s house, the very place Dr. Hall’s report suggested would be toxic. Dr. Hall had predicted more trouble… “The victims will be women…”

As I read this narrative from the YA reports, I could almost hear the ticking of the bomb…

V.

Soon after Jefferson Matley was released to his mother’s home, he was arrested. In a way, the arrest was a Godsend -- given Dr. Halls’ ominous prediction. It was a non-violent felony theft. Because of Jefferson’s poor performance on YA parole and his prior record, he was sentenced to state prison.

California prisons are little different from those in other states; rehabilitation is left to self-help for the most part. Jefferson was sent to a medium security facility and his term there was relatively short.

Three years passed.

Finally, in his early twenties, Matley found himself once again a paroled prisoner. Like the moth to the flame (truthfully where else would he go?) he returned to live with Mother B.

[][][]

Stranger killings are considered the worst. The victims are chosen randomly, directly by the killer, or serendipitously by the circumstances of the confrontation between victim and killer. There is little room for the traditional mitigating factors such as the prior quarrel, the sudden rage triggered by jealousy, in other words, for any of the things that allow us, as fellow human beings, to achieve some small understanding of how one person comes to take the life of another.

In the each of killings for which Jefferson was arrested and charged, each person killed was simply an inconvenience, a theft, robbery or burglary victim who had the misfortune to witness the crime. When plotted on a calendar, these crimes erupted in a series not long after Jefferson arrived in his mother’s home as a paroled inmate. From a sentencing juror’s perspective, there would be no reason that they would not have continued until the perpetrator was arrested. More telling, this particular crime wave ceased after Jefferson’s arrest.

These are the things that fill the dark thoughts of a defense attorney early in the case.

Years later, when I and my co-counsel argued the case, I paused. Lest we fell into the trap of believing all our rhetoric, I offered a correction. I rolled out the television set we used for training and inserted the VCR Tapes of the crime coverage that had splashed across the evening news when Matley’s case was hot. We watched the whole thing, the breathless anchors talking about the latest developments, the shots of the helicopters, the solemn police detectives, the victims’ families. My co-counsel sat in stunned silence for a moment. That is how this jury will see it, I warned.

For most of those years before trial, Matley kept a secret from us. It was an important one. This revelation is the first of my two departures from the strict wall of silence about my communications with him. I breach that wall only slightly here because in essence what I am about to reveal did come out at the trial.

VI.

So another three years went by; and a firm trial date loomed.

Sometime during that period, by an incremental process that escapes notice -- like your mother’s subtle aging -- a change had taken place: >Jeffersonn’s eyes were no longer dead. The light somehow had returned.

I began to ask him obliquely some “what’s this all about?” questions. I was casual and seemingly off point in this exploration, but I was driven by an intense curiosity. I have seen too many criminal defendants offer excuses, picking up the very rhetoric of moral relativism, parroting what they’ve heard about the “evils” of the system, speaking of themselves in the passive voice as if there were no doer, not actor inside who was responsible for the crimes charged. So I wondered if that light behind Jefferson’s eyes was an illusion.

What emerged from these conversations was striking, even to me, a hardened defense guy, who’d seen almost everything.

Without getting into the intimate details of these casual conversations, it gradually became clear to me that Jefferson Matley had reached a serene understanding of his moral situation. His insight: It really would be completely understandable, even proper, if the jury and court imposed the death penalty following a guilty verdict. And this was conveyed without any trace of whining, nor any sense of suicidal resignation. And Jefferson Matley wanted very much to live.

In contrast, many who face death row eventually succumb to pending execution fatigue and lose the will to live. Members of his group tend to decide that if they can’t have life on their terms – more or less outside with their peers doing the things that they’ve always been able to get away with – then in effect they say, “Screw this. Just put me to sleep.”

That was miles from Matley’s position. Of course, he hoped for mercy, but I believe he didn’t expect it because he knew he didn’t deserve it. Jefferson Matley appeared to really understand why he was not entitled to mercy, and for that matter why he was very unlikely to receive it.

A point to which I’ll return after I’ve told Jefferson’s whole story: The surest sign of an authentic moral epiphany is the full acceptance of moral responsibility for all one’s actions without excuses.

Unfortunately, this sort of transformation is the very kind of thing you can never prove. Gallows repentance is always suspicious. And Serenity? Acceptance of one’s impossible moral situation? A recovery of the human light behind the eyes?

You’ve got to be kidding.

It was not long after these conversations that we discovered what Jefferson had been doing with his time in custody. I am persuaded he just didn’t want us to get involved with it at all.

Jefferson had been holding out on us…

VII.

Recently, in preparing for this section, I had the occasion to check the old accounts of my client’s rampage under the heading “serial killer”.

When these events are tightly summarized, the picture is not pretty:

A home invasion through bedroom window in which a girl was made to give up her parent’s jewelry, then was assaulted, bound, gagged, shot and left for dead;

A few weeks later a woman burglary victim was found dead in her closet;

A month later a woman’s business was invaded at gunpoint, both ladies shot, one left dead in a closet, the other lived to summon the police;

Soon after that, a woman was killed during a burglary of her home.

Ballistics showed that the same weapon was used in each incident; and fingerprints were recovered. Ultimately Jefferson was arrested on a tip. Then followed a series of incriminating events, one positive lineup identification, an interrogation in which Jefferson made significant admissions. And so on. This was about as grim a trial picture as it gets in a death penalty defense case.

As the trial date approached, we finally reviewed Jefferson’s record of adjustment to custody. Based on his YA experience, I hoped to be able to argue at penalty phase (in the event of the expected conviction) that, however bad his behavior was out of custody, my client could be counted on to be a model inmate. In fact, his custody record was a good one. No surprise there, because county jail was a better run facility than state prison, providing fewer opportunities to get into trouble with fellow inmates.

It was in this grim, grasping-for-straws context that we learned from sheriff’s personnel that Jefferson had been busy for years with religious study and reflection, and that he’d set up private worship services with one or two other inmates on a regular basis. My initial take on this was skeptical but the more people we interviewed, the more persuaded I became that Jefferson had embarked on an authentic spiritual quest, that it was part and parcel of the moral recovery I’d observed, and that his conversion (if that’s the word) was genuine.

So we drew up a witness list that included the juvenile psychologist, the other elements of Jefferson’s social history, his YA experiences and the new “religious” witnesses. I was personally persuaded of the merits but hardly confident. Most juries, most of the time will dismiss this sort of thing out of hand, vote for execution and “let God sort it out.”

Well my job was to give them a reasonable basis to make the other choice…

VIII.

The jury trial took about six months.

Right in the middle of the trial, the County Board of Supervisors replaced a vacancy in my department, that of the retiring department head, the Public Defender, the one lawyer responsible for the supervision of the 120 other public defender lawyers on staff. Herding cats doesn’t come close to the nature of the job, given the anti-authority predisposition of these aggressive and talented attorneys. The new “PD” would not only supervise those lawyers, but would be responsible for a support staff of investigators, clerks and secretaries, superintend an annual budget of about $20m, resolve a host of personnel issues, and navigate the department through a looming fiscal crisis.

I vividly remember the phone message waiting for me at the lunch break during the trial (the jury was listening to the several hour tape of my client’s interrogation and didn’t look happy about it). My new boss would be me. I had just been appointed the new Public Defender for the county (the second oldest PD’s office in the US).

Well, they were going to have to do without me (except nights and weekends) for several more months.

Eventually the jury got the guilt case and after a respectable period of deliberation, found JM guilty on almost everything. There Was an acquittal on one felony count, a questionable sexual assault charge; it would hardly matter in the big picture.

The jury was now a unified body: Twelve, cold faced citizens who now knew beyond any reasonable doubt that the killer who had done these terrible things was sitting right next to me, began studying Jefferson Matley more closely. We had the weekend to recoup. The penalty phase began on a Monday.

IX.

The prosecution, having already presented devastating evidence about the crimes, needed to show the jury very little more for the penalty phase. So it quickly turned to us to proceed. We now needed to present the whole picture, the social history of the crimes, the setting for our plea for mercy.

Any effective social history benefits from a qualified story teller, sufficiently detached to be credible, sufficiently engaged to be effective.

We didn’t call Mother B as historian-- for reasons now obvious it would have been a disaster.

The social historian is often a hired expert witness with credentials in sociology or psychology who draws together and narrates the defendant’s biography, many of which also have to be independently proved. We didn’t hire someone to do that task, but relied instead on well placed witnesses who could explain the family dynamic and help place Jefferson’s horrific crimes into a more understandable human context. We also needed to describe his later moral rehabilitation.

In this effort, we were greatly assisted by two men, both of whom were very reluctant participants:

· the psychologist who had evaluated Jefferson as a juvenile (we’re calling him Dr. Hall);

· the Sheriff’s Department jail chaplain.

The chaplain had become aware of Jefferson’s religious awakening, but had little or no part in instigating it. As a county employee, he was an ideal witness to describe Matley’s spiritual activities over the three years he was a prisoner awaiting trial. But the chaplain’s participation in our defense case trial (even under subpoena) was problematic because senior officers in the Sheriff’s Department were keen on keeping their employed chaplains out of the courtroom, especially as death penalty defense witnesses.

Dr. Hall was an impressive figure: As a tall, dignified African American man with a non-nonsense attitude, he could not have been better cast for the role. Except, had he been on the jury, he would have leaned toward execution. Like many Roman Catholics I’ve known, Hall lived and talked a robust, practical morality, the kind of tough love / rule-and- consequences attitude shared by so many lay Catholics who toil in the vineyard of criminal life (I think if the Roman Catholic cops, for example). Hall believed in capital punishment and made it very clear to me that if asked he would truthfully answer: Jefferson Matley’s murders had earned him a place on death row.

Dr. Hall was the archetype of the father that Jefferson needed but never had. I overruled the qualms of some colleagues, and decided that Hall would testify for the defense at penalty phase, and let the chips fall where they may. [It would have been comparatively easy to introduce Hall’s juvenile report via another expert.]

The penalty phase defense case lasted into the second week before we had called our last witness, and introduced our last records. As my co-counsel and I prepared our final arguments, we remarked at the good chemistry we’d observed between Dr. Hall and the jurors. He had done a brilliant job in conveying the ugly dynamic between mother B and son, including Jefferson’s misplaced sense of loyalty to her. He’d also managed to convey his own sense of utter disgust at young Matley’s crimes and – without explicitly saying so – conveyed to the jury that life or death would be a reasonable penalty choice.

I was completely comfortable with that testimony as I’ll explain in moment.

The chaplain’s testimony was less effective for the same reason that Hall’s was a hit. The chaplain wore his mercy-for-all sensibility on his sleeve. I’m sure it goes with the cloth, but the price is an ineradicable dissonance with the common sense morality of the so called “ordinary” people. I remain persuaded that no true-believer death penalty opponent can ever be fully credible when making a plea for mercy for a particular human being. “Death qualified” jurors who each have taken solemn oaths to impose the death penalty in appropriate cases, need to hear from people who think more or less like they do, not from true beleivers.

As aside: At this point in my long career, I had never really reflected much on my professional opposition to the death penalty, a position that I’d describe as institutional opposition, i.e.: I believed that though any given individual case might well “merit” the ultimate penalty, there were systemic reasons not to bother with it at all: These were the general reasons like the burden of limited court resources, the risk of error, and my core distrust of excessive government power. [Readers of my various post “life-of-crime” writings already know that I no longer oppose the death penalty; this is an evolution in my thinking based partly on the increasingly compelling evidence of a life-saving deterrent effect.]

As to Jefferson’s case: At the end of the day, I knew that any client’s life or death (and Jefferson’s in particular) could not be decided as a result of individual opinions or entreaties – the weeping mothers of the world notwithstanding.

It was the total gestalt of Jefferson’s case that would matter the most, and that most unquantifiable, elusive element of all: one’s sense of moral appropriateness. Ironically, the absence of a mother seemingly capable of weeping for her son would be part of that gestalt and sense of moral appropriateness.

So I knew we had done our job. For those jurors not totally closed to the possibility of mitigation, we had demonstrated three things as well any they could ever be, given the inherent limitations of the available evidence:

1. We showed that the horrors that Matley perpetrated were the result of a moral perversion that, however awful and reprehensible, was in the last analysis the product of a common human frailty; that he was subject to a strange kind of malevolent duress, one that helped explain the evil that followed without materially diluting his accountability for it.
2. That sparing this young man from the executioner would be safe to do; that his execution was not necessary to save additional lives.
3. That Jefferson Matley had undergone a significant moral reformation, one of sufficient magnitude and authenticity that the person facing the executioner was really changed; that Jefferson’s own homicidal acts years earlier would be “out of character” for the young man now sitting at counsel table awaiting judgement.

But we knew a fourth thing. It would be perfectly reasonable for every juror to agree with our case and still say:

“So what? Too many dead people. Too much damage to the innocent. Leave mercy to God.”

The final penalty arguments were excellent on both sides. Copies have been studied by trial lawyers and parts of them have been used again. In this sense our jury was as well informed as one can expect. It was all on the table…

Before the jury retired to deliberate, I left them with a short word picture. I described the inmate known as “the old man” (for that was what the other inmates called him, the ones who came and went from prison). He was always there. And I described the prisoners over the years he had counseled and helped, and the disaster he had averted as once long ago in Youth Authority he had done the same before.

I described the day of his death in the corner of the prison yard, the story of his last day on earth, having not yet made amends, but having made a difference…

I admitted the obvious: this was just a picture of what might be. But it was a future that could be and one in their power to allow. Their decision was, after all, all about the power of hope. And faith…

The penalty jury was out for a full week before the signs of internal disagreement began to surface. From their questions, their faces and some other hints we began to glean in the second week of deliberations that there was a slow but inexorable progress toward unanimity: they were going toward death.

It has been the experience of most trial lawyers that cases almost never hang up without a small community of dissenters, usually three or more. It is extremely difficult to hold your ground in a group without having the moral support of a small sub-group to which you belong. When the minority begins to lose members, the slide is often precipitous.

The trial court, having used up six months of precious resources, was reluctant to declare a mistrial.

Imagine our surprise when after two weeks of discussions, the jury ended deadlocked, 11-1 for death.

Given the magnitude of the case, that was far too little dissent to dissuade further prosecution. There would be two more trials….

X.

The next trial took place the following year. In the meantime, the case was closely reviewed for possible conflicts of interest. For a host of reasons – one of which was my effective unavailability given my new responsibilities and another was the prospect that I and my co-counsel might now be called as defense penalty witnesses – the case was referred to the county death penalty panel. Two excellent choices from the list of death penalty appointment eligible trial lawyers were assigned.

We turned everything over to the new team, all investigation results, research, motions, reports, and transcripts. I was sure we’d left no stone unturned. Everything that could conceivably help the new defense team was provided. After that, Jefferson Watley’s defense dropped off my radar, though never quite out of my mind.

The second trial proceeded much like ours had except that the jury heard the guilt phase evidence in a new context: the crime evidence was presented to show the jury what Matley had been convicted of doing and why they were being given the penalty decision.

The new team’s penalty defense essentially followed our playbook -- the same witnesses, the same narratives and the same theories of mitigation.

And the same outcome.

I mean exactly the same outcome ensued. After a long deliberation, the new jury deadlocked exactly as the last on had: 11-1 for death.

When the lead trial DA (we’ll call him “Grayfox”, one of their most experienced prosecutors – he looked like the DA in one of those 60’s TV series) announced his forthcoming retirement, the courthouse rumor mill went on overdrive. Surely the DA’s office would throw in the towel (allowing a life without parole or “LWOP” sentence) rather than bring in a new prosecutor.

Then the news reached us:

Grayfox had offered to return from retirement without salary just to try this case a third time. His office readily agreed. So the lines were drawn.

The following year, the third jury was selected in the case against Jefferson Matley. It was in interesting experiment, really. Neither side had much new to present, except the hope of selecting a “better” jury.

I wish I had been in the courtroom when the case concluded. Another 11-1 deadlock for death.

A few weeks later, I was in my office on the second floor of the courthouse when I heard the news from the ninth floor. The DA’s office would not seek a fourth trial, which meant that the trial court would impose life without parole. In three years, 33 jurors had voted to execute Jefferson and 3 had dissented. A miss is as good as mile where unanimity is required. Had any one of those dissenting votes traded places on a given trial with one of the death votes, JM would be awaiting execution on death row.

Jefferson’s final sentencing date was selected. We were told that many of the surviving crime victims and their families would attend.

My own calendar was crowded those days, but I managed to stop by the sentencing courtroom early in the morning. I said “Hi” to the judge, and asked Matley’s defense team if I could see my old client for a minute. They agreed and the bailiff brought Jefferson out to sit with me at counsel table. He had his trial clothes on for the sentencing, a simple white shirt and neat slacks. I immediately noticed that sense of serenity that had caught my eye years earlier when he seemed to be recovering from his demons. Jefferson smiled slightly. “Didn’t expect to see you,” he said. We talked for a while. I told him he’d been spared for a reason. He solemnly nodded. I wished him well.

I’ve not seen him since.

At noon that day, I did something I’d never done before then. And the timing was purely serendipitous. It was Good Friday and a friend of ours was singing in a local church. So I attended.

Non-Christians might find it strange that the day of Jesus’ torture and execution by the occupying Roman authorities is commemorated in this way. But this is about hope, is it not? I found myself (a recovering Unitarian) greatly moved by this service. I’m convinced that the narrative of the Passion and its aftermath carry a powerful, even shocking relevance for the contemporary human condition.

The next morning, I picked up the morning paper. In the City Section, I read the account of Jefferson’s sentencing. I was floored. You just can’t make this stuff up. I put down my coffee cup and reread the whole article.

The victims, the survivors, friends and families who attended Jefferson’s sentencing had evidently been in a long correspondence with him. He had expressed his sorrow, shame and regret for what he had done, and he did so again in open court.

Then – and the telling of this still part still seems unreal:

Victim after victim got up in court and forgave him.

XI.

As I promised, over the next few postings we’ll be exploring the implications. Any probe into a particular event or narrative of sufficient depth will always reveal the hidden universals that were at work.

My discussion will go on a bit, but not in the “counter-example model” known to most parents (one of those “See – don’t do that!” admonitions). Instead, we’ll be going on a mining expedition. Here goes…

THE BELL CURVE OF PROBITY

I responded to an excellent article in the journal of religion and public life, First Things (Issue 145) by Professor J. Budziszewski, who had cogently refuted of one key element the conventional wisdom – the belief that Christian doctrine can never condone the death penalty for murder. My letter was published in the following issue, followed by a thoughtful response by Professor J. Budziszewski.

Here is part of what I wrote:

Budziszewski reminds us that established Christian tradition recognizes justice in the classic Torah-based model, and favors individuated mercy, not blanket clemency. In effect he argues that indiscriminate clemency for murderers perverts both justice and mercy. Because part of Professor Budziszewski’s argument criticizes utilitarian ethics, I would distinguish ethical realism (as it is my own position and that of a number of observant Jews and Christians).

With many ethical realists (those of us who are also theists) I accept both the objective reality of ethics and the need to make them realistically operative. Unlike utilitarians, we recognize that moral knowledge is embedded in the warp and woof of reality by the One who created all that is, but we still recognize the need for incentives and disincentives and the social “muscle” needed to make them real. Moral behavior in the day-to-day world is distributed along a crude bell curve of probity, with the sociopaths and naturally enlightened occupying the respective edges, and the rest of us populating the middle group. Even the most self evident moral principles are generally not self executing. Most people, most of the time are governed by a combination of moral inclination, moral training (currently in decline in this culture) and the classic rule-consequences model (now weakened by moral relativism).

Without “rule-consequences” civilized life is doomed. Ethical realists know that the death penalty is a crucially necessary component of any justice system that is designed to implement core ethical principles.

With that backdrop, I’ll address some of the moral and spiritual implications of “Jefferson Matley’s” case.

XII.

Mining the “Jefferson Matley” Case:

The Matley trial was just a sketch of a real event, altered in the non-essentials for the obvious reasons. His story will now take on the contours of a parable.

I promise to return to my “you were spared for a reason” remark to JM on his sentencing day a bit later in the discussion. But first I need to talk about the absence of a moral framework in his young life, which was a particular example of the effects of a culture whose religious moral underpinnings have been taken away. In his little family (as in so many others in parts of the urban the African American community) the surviving traces of a formerly robust religious mindset can be detected only in a dying generation, typically represented by great-grandmothers. When you add to this moral vacuum the corrosive effects of the drug culture, a broken educational system, and the hectoring influence of a shallow celebrity-driven drive to easy wealth, you get … trouble.

The huge problem with moral relativism in all its variations, even in its least malign “let’s just get along” mode, is that it eventually leads to ultimate social chaos followed by the natural social reaction: authoritarian tyranny. One should be neither surprised nor particularly dismayed that the religious vacuum is filled by more authoritarian and repressive forms of religion. Things could be far worse.

Relativism automatically devolves authority into raw power relationships that, over time, are subject to challenge as illegitimate. But the challengers are equally illegitimate. Relativism changes “that’s wrong” into “that’s wrong if you get caught”.

Young Jefferson Matley, indeed all children when they are deprived of a robust moral framework, can become developmentally crippled, gravely compromised as civilized adults. This was made crystal clear when Jefferson thrived in the more rational and morally ordered setting of confinement in Youth Authority.

And this presents the first apparent dichotomy: When you provide undemanding love only, without an overall moral structure linked to a principle-based, rule-consequences model for its implementation, you produce loyalty driven amorality at best and moral chaos at worst. But a cold hearted, seemingly loveless rule-consequences model fares only marginally better, often producing anger, resentment, and destructive rebellion.

The problem is complicated because children come equipped with different temperaments, responsive in varying degrees to the rule-consequences vs. nurture-and-trust models. Moreover, we parents are likely to miss these important personality variations among our children, sometimes falling into the trap in which the more aggressive ones are thought of as “bad” and the meek ones as the “good”.

You will detect two classic human archetypes in these models: the fatherly authority and the motherly nurturing models, both as roles that are routinely being taken up in turn by men and women as the circumstances require. Children accept each function – whether from the same person or from a couple -- because they instinctively need them both.

Children are also adept at seeing through pretense, hypocrisy, and hollowness. Just as a dog can smell fear, kids can smell the absence of a secure moral foundation among the adults who are charged with raising them. Which brings us squarely back to the quivering, bucket shape gallon of water in the image that I described in the Introduction; and it returns us to the most important set of questions that any child can ask us: The questions that begin with --- Why?

XIII

Mining Jefferson Matley’s Story:

For a book still unreleased, I describe an encounter with a child amid the rubble; surrounded by the pervasive damage done by amoral skepticism, we care called to respond with hope…

[][][]

It is the moment before dawn. The deep purple sky in the East has begun to brighten. The wind stirs. We are standing amid the dimly lit rubble of four thousand years of religious thought and belief. And the zone of destruction includes more modern artifacts.

The sun breaks over the horizon, a single ray lancing through a gap in the clouds There! Under that immense pile of stone, a plate bearing the name Heraclitus; nearby the shadow of a tree, and a gentle spirit, hands folded, sits in repose. From another pile, the hand of Nietzsche’s Zarathustra reaches skyward. The wind dies. By a broken wall, you see a Menorah, its seven candles still flickering, having burned the entire night. Nearby, stands a wooden cross, an empty grave. In the mid distance, the tip of a single spire catches the morning light. A dove rises. As the sun flickers higher, gaining over the clouds, we see more.

The smoke clears. The necessary materials are all here. On a nearby hill, still in deep shadow, we see a flat place. We approach. The cleared area appears to be very large. Yes. A foundation has already been erected, a foundation for a structure large enough to use every scrap of material around us and more.

All of the ethical and spirit traditions, all the religions of the world have survived the night, each with its own window to the mind of ultimate being, to the soul of deep reality, each with its own piece of the essential wisdom. Others are arriving, bringing tools. Surely, together we can build on this spot.

Something touches you and you turn. The child is looking up to you with wise eyes. She smiles and asks you five questions:

What is evil?

Why is evil?

Why should we bother to do good and avoid the bad?

Why are we here?

Why should we care what happens in the world after we die?

It is time. Your test starts now.

Time to begin.

[][][]

Let me propose a very broad definition of the religious function in life. Any living, relevant religion consists of an active belief system and a supporting community that (at the very minimum) does these two things:

1. It systematically affirms the reality and relevance of the spiritual experience. In general, such a systematic affirmation takes the form of a metaphysical model or a theology (which is a metaphysical model of life, the universe and everything with a living God at the center). In either path (God-based or merely spiritual), it affirms a comprehensive model of life the universe and everything that connects the dots between who we are, what we want and why we need to care.
2. It connects that systematic affirmation with an ethical framework, a system of norms that defines and affirms the boundaries between right and wrong, virtue and its absence. In effect it provides the great moral compass of life and answers the question: Why care?

At present there is no purely secular, utilitarian answer to the core “Why” questions. Plainly put, we adults really can’t satisfactorily answer a child who asks these kinds of questions without relying on religious thought. Even secular adults tend to realize this basic fact of nature, and attempt to fulfill their obligation to transmit moral wisdom by uttering fairy tale versions of religion as if the adults actually believed them. This tends to set up a “You lied to me about Santa Claus” moment later in life. The alternative is the utilitarian, get ahead model, the “this is what we need to do to get along.” That path is wide open to corruption.

Which brings me to the question of character: I am persuaded that JM was actually converted to a religion-based moral view, a recovery from the secular get-ahead model, gravely corrupted by a damaged sub-culture and an ugly family dynamic.

But I am not yet persuaded (on all the available evidence) that JM’s character would be strong enough to function in the same world from which the police removed him. Not without serious backsliding. I suspect Matley is in the very place he was “meant’ to be. I pray that his life will in some way vindicate the judgment of the three