Last week, Deputy District Attorney Stacy Heyworth looked me in the eye and asked me if I could keep a secret. The question wasn't whispered in some dark parking garage but leveled in open court, as I sat in the jury box. If you are selected for this jury, Heyworth queried, would you be able to keep out of your deliberations any background knowledge you have developed on crime issues as a reporter? The question put me on the spot. It was a clear signal to me that I knew something she didn't want the rest of the jury to know. At the same time, I understood that a juror's duty is to consider only the facts presented in the courtroom. So, in front of Multnomah County Circuit Court Judge James R. Ellis, defense lawyer Robert Salisbury and dozens of other potential jurors, I gave Heyworth my word that the things I've learned covering the criminal justice system would not enter into my deliberations. A short time later, when I took my seat as juror No. 11, I saw just how hard that would be. Stephen Lamont Johnson was accused of robbing the BP station on Northwest 21st Avenue and Lovejoy Street. According to testimony from Tim Plumb, an attendant at the BP, on July 24 a compact African-American man with a shaved head walked into the station. The man stuck his hand in his pants pocket, mimicking the nose of a pistol with his finger, and said, "I got a gun in my pants, dude. Put the key back in the register." Plumb opened the cash register. The suspect took off on foot with about $250. After Plumb identified Johnson, 32, from a police photo lineup, the susect was charged with Robbery II. It was certainly not the crime of the century. No one was hurt. Plumb, who knew he was staring down an index finger, wasn't even very frightened. Yet I knew that under Measure 11, a 1994 mandatory minimum sentencing law, anyone convicted of Robbery II must serve at least 70 months in prison. Measure 11 offenders get no credit for good behavior and no parole. The minimum sentence applies to first-time offenders as well as repeat violent criminals, to 15-year-olds as well as adults. This was the information that Heyworth didn't want me to tell the jury. Years of case law have prohibited lawyers from talking about potential sentences in front of jurors. The jury is supposed to decide only whether the prosecution proved the accused's guilt beyond a reasonable doubt. It has always been the judge's job to fashion a punishment that suits the crime. But under Measure 11, the judge has no discretion. "The whole concept of Measure 11 is just insane," Ellis told me after the trial was over. "We're all trapped." That's exactly how I felt when I walked into the jury room after closing arguments. The defense's main strategy was to call Plumb a liar--something not a single juror believed--and to discount the threat implicit in the "gun." It took us only 11?2 hours of deliberation to reach a unanimous verdict. The jury forewoman filled in the verdict form, and as we waited to return to the courtroom, I asked some of my fellow jurors what they thought would be a fitting punishment. Their answers ranged from six months if he was a first-time offender to two years if he was a repeat offender. Recalling my promise to Heyworth, I didn't say anything. At 1:30 pm on Oct. 2, we filed nervously back into Ellis' courtroom. I was overcome by a sense of futility. I have written several stories pointing out the flaws in Measure 11: the lack of judicial discretion; the fact that it applies to crimes without real violence; the fact that it applies to first-time offenders; the fact that incarceration isn't rehabilitation. Yet in sending Johnson to prison, I may have contributed to the very problem I editorialized against. Walking out of court, I told a few fellow jurors about Johnson's likely sentence. Some were visibly shaken. Although they were all intelligent people, not a single one had a clear idea of what Measure 11 entailed. The next day, I learned things about Johnson that the prosecution was barred from introducing at trial. He is currently awaiting trial on charges involving the theft of golf clubs, a ring and a coat from the car of Archbishop Kenneth Steiner in June. Court documents also indicate that he was convicted of Robbery II twice before. He was accused of hitting his wife in March, although the charges were dropped. Given that history, Johnson may well deserve a stint in prison, but six years seems an excessive sentence for a robbery at fingerpoint. I am nagged by the thought that there was another option. We were also asked to consider whether Johnson committed Robbery III, a lesser charge that does not carry an automatic 70-month sentence. With this charge, not covered by Measure 11, sentencing rightfully would have been left up to the judge. I wonder whether things might have gone differently if jurors had been told about the different sentences for Robbery II and III. Under the constraints of Measure 11, keeping the jury in the dark just isn't fair. |
