LITTLE ROCK — The question of whether Vertis Clay of North Little Rock should die or spend the rest of his life in prison was handed over Monday to a federal jury.
"The weight is now shifting to you," defense attorney Blake Hendrix told the same group of people who, just last week, convicted Clay of murdering 38-year-old Darryl Johnson of Pine Bluff after subjecting him to perhaps hours of torture with a broomstick, a knife, a gun and a hot iron.
Hendrix urged the seven women and five men to show kindness and compassion for Clay, now 38, by letting him live out his life in prison. Hendrix reminded them of testimony from his friends and family that he was kind to children, close to his family, respectful to his teachers and generally amiable.
Assistant U.S. Attorney Joe Volpe assured jurors that they had nothing to feel guilty about if they opted for the only alternative - death by lethal injection.
"Don't let anyone lay a guilt trip on you. One hundred percent of this is at this man's feet," Volpe said. "You are the factfinders. ... It's your duty to find the facts, and it will be up to the executive branch to carry out that sentence."
Over two days of testimony last week in the sentencing phase of Clay's trial, Volpe and Assistant U.S. Attorney Anne Gardner sought to prove four factors beyond a reasonable doubt - that Clay's crime wascommitted in a particularly cruel manner, that he did so in expectation of receiving money or something else of value, that the crime involved substantial planning and premeditation, and that he would be a danger to others if allowed to live behind bars.
If jurors unanimously agree that Clay intentionally killed Johnson and that prosecutors proved any of the first three "aggravating factors," all of which are listed in a federal statute, they must then consider whether prosecutors proved the fourth, non-statutory, factor that Clay presents a threat of future dangerousness.
Regardless of their answer on future dangerousness, they then must decide whether the defense team proved the existence of any of 17 "mitigating factors" by the greater weight of the evidence - a lower standard. But the mitigating factors don't have to be unanimously agreed upon.
Jurors then weigh the aggravators against the mitigators to determine whether Clay should be sentenced to life in prison or death. Jurors were told to "not simply count the numbers of mitigating and aggravating factors," but to consider the value of each.
The mitigating factors that Hendrix and fellow defense attorney Mark Hampton sought to prove include that Clay's participation in the murder was minor, compared to that of another admitted participant, Darryl Walker; that Walker is equally culpable and has negotiated a sentence of life or a termof years; that Clay has no criminal history; that Johnson, a drug dealer, knew his occupation was dangerous; and that Clay has been a nonviolent, "model" prisoner over his three years in custody.
Other potential mitigating factors are that a life sentence is a significant punishment; that Clay's friends and family, including his children, will be adversely affected if he is executed; that he has proven himself to be capable of kindness and generosity; that he was raised in "a decent and wholesome environment;" that he "has led a decent life;" and that he has otherwise used his size and strength to protect others.
Prosecutors say that Johnson's partner in a marijuana ring hired Clay to attack Johnson after Johnson snitched on his partner, telling the supplier that the partner had stolen truckloads of marijuana from him.
Walker testified that he thought they were only going to rob and harass Johnson, but when Johnson broke free of duct tape that bound his wrists, Clay panicked and shot him, fatally, in the back of the head. Johnson had already suffered a serious gunshot wound to the leg that shattered his thigh bone.
Hendrix quoted Abraham Lincoln in asking jurors to "look deep" into themselves to find "the things that connect us all" and to "consult the better angels of your nature."
Volpe, noting Clay's agreeable childhood, responded, "Mr. Clay chose darkness over light ... This is the worst of the worst,and justice requires the ultimate punishment."
Jurors deliberated for about five hours on Monday without reaching a verdict. U.S. District Judge Bill Wilson Jr. ordered them to resume deliberations at 8:45 a.m. today.
If they cannot agree on a punishment, Wilson must impose a sentence of either life in prison or a term of years.
Arkansas, Pages 8 on 10/30/2007