Virginia execution: Should severe childhood abuse spare a murderer the death penalty?

 

 

 

Jerry T. Jackson

 

Jerry T. Jackson sits at the Williamsburg and James City County Circuit Court during jury selection. Jackson was convicted of raping, robbing and murdering an 88-year-old widow after he broke into her James City County apartment.

On an August night 10 years ago, 20-year-old Jerry Terrell Jackson broke into a James City County apartment.

By the time he fled and hopped into a Dodge sedan that didn’t belong to him, $60 cash in hand, 88-year-old Ruth Phillips was lying dead inside, raped and smothered with a pillow. Her body was discovered hours later by her son, who had grown concerned when he couldn’t reach her for Sunday supper.

At Jackson’s trial in 2002, Williamsburg-James City County prosecutors painted a lurid picture of the crime scene for jurors: Phillips lying twisted and exposed on her bed, nightgown pushed up to her neck, blood vessels burst in her eyes and cheeks.

Closing arguments were capped with Deputy Commonwealth’s Attorney Rich Rizk holding a pillow down on a table for several hushed, excruciating minutes, approximating the time it took for Phillips to asphyxiate.

It’s an image some jurors still can’t get out of their heads.

“The prosecutor, he illustrated exactly what this woman suffered at the hands of this man,” jury foreman Lewis Samuels of Williamsburg said recently. “He did this thing with the pillowcase — I mean, it was almost like slow motion that this woman suffered this horrendous … this death.”

It took jurors less than two hours to convict Jackson and sentence him to die twice over: For murder while committing robbery, and murder while committing rape.

Jackson, now 31, is scheduled for execution Thursday night.

His team of attorneys scrambled to convince Gov. Bob McDonnellto commute his sentence to life in prison without parole. In a statement Friday, the governor refused, having found “no compelling reason to set aside the sentence.” They’re also appealing to the U.S. Supreme Court.

They argue that Jackson’s original attorneys failed to paint their own grim picture for jurors — a picture of a childhood saturated with abuse so sadistic and pervasive that, they say, it likely would have moved at least one juror to vote for life in prison. In Virginia, one reluctant juror is all it takes to avoid the death penalty.

In an unusual move, a federal judge ruled in 2010 that Jackson’s first attorneys should have put his brother and sister on the stand to provide vivid, firsthand testimony that might have led the jury to spare him. She ordered a new sentencing hearing.

“The picture painted of Jackson by his own counsel,” U.S. District Judge Leonie Brinkema wrote, “all but invited a death verdict.”

Her ruling was reversed in April by the U.S. Fourth Circuit Court of Appeals, setting the stage for the execution. The Fourth Circuit upheld a Virginia Supreme Court ruling that said the siblings’ testimony would be merely “cumulative” to other trial testimony, and that the law doesn’t impose a “constitutional requirement that counsel uncover every scrap of evidence that could conceivably help their client.”

A trial choice

Jackson’s lawyer at the time did explore abuse in the trial’s penalty phase, when jurors heard aggravating evidence for a stricter sentence, and mitigating evidence for a lesser one.

Norfolk defense attorney Andrew Protogyrou sat social workers, physicians, nurses and a police officer on the stand to read from various documents about bruises and broken bones, hospital visits, allegations of sexual assault, domestic violence, court-ordered family counseling.

Jackson’s mother, father and stepfather testified about Jackson’s bad behavior and their efforts — which they acknowledged were sometimes extreme — to correct it.

“I’m satisfied that every bit of abuse got before the jury,” Protogyrou told the Daily Press recently. “We showed that his childhood was replete with abuse at an early age.”

It was his strategic decision, he said, not to show jurors the contrast between the troubled Jackson and his brother, who had joined the Navy and had no criminal record.

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