In the Face of Death

By Alex Kotlowitz - New York Times Magazine

July 6, 2003

At 2:40 a.m. on Aug. 26, 1998, along a main drag on the west side of Indianapolis, 18-year-old Jeremy Gross approached a convenience store with a friend. They intended to rob it.

At 5-foot-8 and of slender build, Gross was not particularly physically imposing, and he had a distant look about him. He wore his blond hair in a bowl cut and often seemed nervous and fidgety. He knew the store well, since he worked there part time, and he also knew the young man, Christopher Beers, who was the lone clerk that morning.

Beers, who was 24, had been raised by his father and had completed one year at Purdue University before running out of money for tuition. He was overweight and, according to his uncle, mild-mannered. He was working to earn money to return to school. An avid reader, he welcomed the graveyard shift; it gave him time with his books.

Gross stood outside the glass doors, behind his accomplice, Joshua Spears. He held a small, black semiautomatic pistol at his side, out of sight. Gross was jumpy, turning his head from side to side to make sure no one was in the parking lot. Beers buzzed them in. Gross took long, hurried strides into the store, raised his right arm and started shooting. It happened so quickly that Beers didn't have a chance to say anything.

The 1st shot hit him in the abdomen. Gross continued to fire. 3 shots missed, but a fourth hit Beers in the chest. "Oh, God, please, no," he pleaded. As Beers stumbled into the back office, Gross followed and, to get a better angle, shifted the pistol from his right hand to his left. From close range, Gross shot Beers in the face. With blood now gushing from his eyes, Beers reached out for Gross, as if he were asking for support. Gross pushed him away, and he crumpled to the floor. "Why, Jeremy, why?" Beers asked. Gross told him to shut up.

Gross's partner, Spears, had headed for another room to get the surveillance tape, but he couldn't get the eject to function, so he grabbed the VCR. Meanwhile, Gross emptied the cash register and office safe of $650, then ripped the two telephone cords from the wall. This all happened in less than a minute. The two fled by foot, through a neighborhood of mobile homes to their trailer park not more than half a mile away. Along the way, Gross and Spears threw the gun and the VCR over a wire fence into a retaining pond.

After they left, Beers lifted himself off the floor and shuffled out the door to a pay phone, where he again collapsed. He died under a dangling phone, rivulets of blood running from his head.

A passer-by who was a regular customer at the Convenient Food Mart had seen Gross and Spears enter the store. He gave the police a description, and another employee said that the description sounded like that of Gross. Less than 7 hours later, Gross confessed to detectives, steering them to the VCR and gun. They found the VCR lying in shallow water, protruding from the mud; divers recovered the gun.

F.B.I. experts salvaged the videotape of the murder, and a few weeks later, after viewing the terror of that night, Scott Newman, then the Marion County prosecutor, told a reporter for The Indianapolis Star, "There isn't a jury in this world . . . that would not recommend the ultimate penalty in this case, the death penalty."

On the 24-page jury questionnaire, Elizabeth Stone, who is 60 and works as a nurse, wrote that she "strongly favored" the death penalty. "I looked at it as an eye for an eye," she told me when I recently spoke with her. "Someone who takes someone's life deserves death." Another juror, 54-year-old Cheryl Berkowitz (then Cheryl Rader), who works at a drug-treatment center, said during the voir dire that she thought the death penalty was not used often enough. These 2, along with 9 other women and a man, were chosen to serve on the jury that would decide the case of the State of Indiana v. Jeremy Gross.

Like most juries, this one was composed of a diverse group. There was a manager of a McDonald's, a cook at a child-care center and a machine operator at a foundry. On the questionnaires where it asked, "Whom do you most admire?" one wrote "Ronald Reagan," another "John F. Kennedy," another "Princess Diana" and still another "Montel Williams." But they all shared one thing in common. Each of them told the court that yes, they could vote to end someone's life. This is a requirement to sit on a capital murder case, and it is, in some measure, what attracted me to Jeremy Gross's case. That, and the fact that in what most likely is the only opportunity they would ever get, these 12 jurors, all of whom swore their allegiance to the death penalty, in the end, balked.

The trial took place in the spring of 2000, two years after the shooting, though I learned about it only recently as I began making inquiries around the country in an effort to understand what would sway 12 jurors who believe in capital punishment to spare a life. Whether someone lives or dies is the ultimate of Solomonic decisions, and 33 of 38 death-penalty states entrust it to a jury rather than to a judge. What happens when 12 people who support the death penalty face it up close?

Over the past few years, detective work and advances in DNA technology have uncovered a frighteningly high number of wrongfully convicted, especially on death row. But there may be another, albeit quieter, revolution taking place, out of view, in jury rooms. The number of death sentences handed down has dropped precipitously, from a modern-day peak of 319 in 1996 to 229 in 2000, and then to 155 in 2001. And a study released just last month reported that in 15 of the last 16 federal capital trials, jurors chose life sentences over death.

There are a number of factors at work here. In early 2000, Gov. George Ryan of Illinois, staggered by the number of wrongful convictions in his state, declared a moratorium on executions. It received a good deal of national press and undoubtedly made some prosecutors and jurors more cautious. (Last January, Ryan went beyond a moratorium; he pardoned four inmates and commuted the sentences of the other 167 on Illinois's death row.) Additionally, the murder rate has been in a steady decline, though that has been going on for some time.

There are 2 factors, however, that more than anything else may help explain the decline in death-penalty sentences. One is the increasing availability of life without parole as an option, which all but three death-penalty states now offer. In polls, three-fourths of Americans say they believe in the death penalty. But when asked whether they'd support capital punishment if life without parole was an option, the number is reduced to half.

The other contributor, perhaps tougher to measure, is a development over the last decade: an increasing number of defense attorneys have become more skilled and resourceful in persuading jurors that the lives of their clients are worth saving.

The proceedings in a capital trial are unlike any other. They are divided into two distinct phases. In the 1st phase, a jury, as in any other criminal case, decides guilt or innocence. Then, if they've reached a guilty verdict, the trial enters what's called the penalty phase, in which the same jurors hear what is called mitigating evidence -- testimony about the defendant's character, about his childhood, about his past deeds, good and bad. It is, in essence, a plea for mercy, an unapologetic and sometimes mawkish effort to win sympathy for someone who has killed another human being. Because of what's at stake, the Supreme Court has ruled that capital cases must be highly individualized affairs, so it has opened the door to just about anything that will help jurors get to know and understand the defendant.

The notion that a jury in a capital case has to determine not only legal culpability but also moral blameworthiness has always struck me as a remarkable measure of our unresolved attitudes toward capital punishment. "It's a tremendous moral moment," Austin Sarat, a professor of law and political science at Amherst College, says of the penalty phase. "It's where the rubber meets the road."

I settled on the State of Indiana v. Jeremy Gross because I'd been looking for a case in which guilt was not in doubt and in which substantial mitigation was presented. I also sought out a case that occurred a few years ago in the hope that the lapse of time might make the jurors more likely to speak about their personal journeys through the trial. In the end, I tracked down nine of the jurors; only one of them declined to speak with me.

These jurors -- each of whom, remember, believed in capital punishment -- looked death in the face and walked away. Newman, the prosecutor at the time of the trial, has suggested that jurors in instances like this get "weak in the knees." Is it that simple?

The murder received a large amount of press locally, including television interviews with Gross shortly after his arrest. Daily coverage of the proceedings was anticipated. A decision was made to sequester the jurors, who were put up at the Indianapolis Athletic Club, an 80-year-old stone structure near the courthouse. They were told to pack enough clothes and books for 2 weeks. One juror brought an armful of crossword-puzzle books. Another brought a pile of family photographs, planning to make a scrapbook. Still another brought along her Bible as well as a book titled "Tough Questions, Biblical Answers," given to her by her minister shortly before the trial. They could not call family or friends, though they could write letters and receive visitors each Sunday. They were not allowed to visit one another's rooms or watch television. They couldn't venture anywhere -- take a walk, visit the exercise room -- without being accompanied by a bailiff. It was, many of the jurors told me, one of the most difficult aspects of the trial: having to face alone the weightiest decision of their lives.

Courtroom No. 4 is modest in size. The jurors sat along one wall, slightly elevated, in low-back swivel chairs. The witness stand and the spectators' gallery, which seats 50 and was nearly filled every day, mostly with families and friends of the victim and Gross, were within a few feet of the jury box. A number of the jurors complained of feeling cramped. At one point, a couple of them asked if some of Beers's relatives could be moved to another part of the gallery; they could feel the presence of the men in the 1st row.

Jeffrey Gill, a 38-year-old deputy prosecutor who had never before tried a death-penalty case, gave the opening statement. He laid out the crime and told the jury about the existence of the videotape. It was a presentation marked by its spareness. The facts in the case were chilling and indisputable.

Then Bob Hill, a 47-year-old defense attorney who had previously represented 14 men facing capital punishment, just flat out conceded to the jury that he had no case. Hill, who has a folksy manner, told the jurors that the prosecution "has plenty of evidence to convict Jeremy Gross. I would be an idiot if I said otherwise." But, he went on, "we have substantial evidence to preserve his life." Hill then played for them the videotape of Gross walking into the Convenient Food Mart and shooting Beers 3 times. It was a gamble, but he knew the tape would be presented at some point and he thought it best if he did it right up front. "It was the most damning piece of evidence, and we couldn't make it go away," he told me recently. "I made it clear that it was Jeremy who pulled the trigger, and here's the videotape to show that. I told them there's no excuse for what Jeremy did, but I can explain how he gets to that convenience store."

The jurors watched the video on a large television screen. They were, to a person, horrified, though most found it confusing -- at least at this first viewing, since four camera angles play out simultaneously, and it all happens in a mere 41 seconds. In the tape, Beers, dressed in a sweatshirt and shorts, seems baffled by Gross's single-minded effort to kill him. Some jurors weren't fully able to make sense of the scene until the very end, when Gross walks into the anteroom and shoots Beers in the head. In the final moments, Beers can be seen reaching out to Gross for support. The jurors were riveted. Gross turned his head. "You're talking about a coldhearted act," Hill told the jurors, "but you're not talking about a cold heart."

In those early days of the trial, the jurors avoided making eye contact with Gross, who at Hill's instructions was cleanshaven and well dressed in a polo shirt, dress slacks and loafers. It was impossible, though, for the jurors not to take notice of him. Some were struck by how young he looked. Indeed, Gross, who had had a buzz cut in jail, had let his hair grow at Hill's request so he'd look more youthful. Gross had also put on nearly 50 pounds since he'd been arrested, so his face appeared pudgy, softening his already boyish features. Others were struck by his lack of affect. One juror thought he looked so disconnected that it was as if he were on trial for shoplifting. In fact, Gross was so nervous that his legs twitched, and he often sat gripping the defense table, looking into space, which he later told me was the one way he could stop his involuntary leg movements.

The jurors were shaken by the video, and during a 20-minute break sat in the jury room in complete silence. "It seemed coldblooded and malicious and premeditated," recalled one juror. "I think everyone was just stunned." In the guilt phase of the trial, which lasted 2 days, the jurors saw the videotape once again, this time with the audio, as well as photographs from the crime scene, including the snapshot of a bloody Beers lying by the dangling pay phone. They also heard the prosecution make a convincing argument that Gross planned the robbery and went to the Convenient Food Mart intending to kill Beers. And the prosecution played for the jurors Gross's confession to detectives, in which he told them: "He knew it was me. . . . I just couldn't stop. My fingers just kept going."

Hill did little to counter the evidence but instead began to offer snippets of Gross's childhood. He also suggested that Gross had smoked marijuana before the robbery and murder, which might provide reason to not convict him of intentional murder.

Toward the end of the guilt phase, a juror told the judge about an unnerving incident in the jury room. One juror, playing a game of hangman, drew a gallows on the blackboard and what appeared to be an electric chair. Hill considered asking the judge to excuse the juror but in the end chose not to because he had misgivings about the alternates. But, he said: "That scared me to death. I didn't know if that was a message, or if she was preparing herself for it."

The deliberations took 5 1/2 hours, longer than anyone had anticipated. One juror, Cheryl Berkowitz, who in the voir dire told the lawyers that she believed the death penalty wasn't imposed often enough, had come to believe that Gross must have been high when he committed the murder and so hadn't been in his right mind. But it went deeper than that. Berkowitz had also come to identify with him. She was a recovering cocaine addict and alcoholic. Berkowitz, a soft-featured woman who often looks as if she has a lot on her mind, spent her nights during the trial reading recovery literature. She knew firsthand what drugs could do to one's mental state. "There was a time I thought about robbing a convenience store so I could get thrown in jail and get off of drugs," she told me. She had even once shot at her husband and missed. More than anything, though, Berkowitz was struck by how young Gross looked. "That was everything," she said. "It was hard to put the 2 together, this young kid sitting there -- he looked scared -- and this videotape. I have a son, too. He was 23 at the time. I looked at Jeremy and thought, What the hell happened? Why would you be out robbing someone? He was just a kid to me."

Eventually, though, Berkowitz conceded that there was no doubt that Gross was guilty of murder while committing an armed robbery. Most of the other jurors at that point shared none of Berkowitz's reservations. They thought Gross deserved to die. Kevin Garrison, a 51-year-old father of two who had just retired from his job as an engineer at the phone company, remembers thinking to himself: "This is pretty easy. This won't take long. Guilty. And death." Garrison, a physically fit, white-haired Reagan Republican, was chosen jury foreman, mostly because of his no-nonsense attitude and even-keeled nature. He told me that at that point in the trial, "I thought the death penalty was not only appropriate but was paramount." Another juror, Carrie Tuterow, said, "I had made up my mind: for justice to be imposed, he needed to die."

In fact, many of the jurors figured the trial was over. "I don't think any of us had a clue there was more coming," Garrison told me.

As one lawyer recently put it to me, the penalty phase of a death-penalty trial is where "the law runs out." For prosecutors, it's a fairly straight-ahead process. They try to prove what are called aggravators, acts that make a murder more heinous. The most common -- applicable in Gross's case -- is murder committed intentionally during a felony, most usually a robbery. But aggravators can also include the killing of children, murder that involves torture and the murder of a police officer.

The defense, on the other hand, has latitude to present virtually anything that might reflect on the character of the defendant or the crime. This is where the trial becomes wide open and freewheeling. Mitigation presentations can come across as sentimental affairs, often with complex and heartbreaking family sagas, a cross between a Bob Greene column and a Tolstoy novel.

Jurors are asked to weigh the aggravators against the mitigators and decide which, in the end, tip the scale. "It's a crap shoot," one defense attorney told me. Except here's the telling part: roughly 1/2 of all death-penalty juries don't vote for death. And in those cases in which juries do vote for it, it's unclear how often the defense lawyers did a lousy job of telling their clients' stories. It's not to say that even with the most compelling mitigation, jurors won't impose the death penalty, especially in states like Texas where life without parole is not an option. But as one lawyer said to me, without mitigation, the outcome is a foregone conclusion.

Putting together extensive, sophisticated mitigation is relatively new to most capital-defense attorneys. There was a time, a decade ago, when lawyers would frequently choose not to present any mitigating circumstances out of fear that their clients might be perceived as bad seeds, thus making it easier for the jury to vote for death. Or often defense lawyers put all their time into trying to prove their clients' innocence, collecting nothing about their clients' pasts. It still happens.

But defense lawyers are getting savvier. For one, they're increasingly relying on "mitigation specialists," a burgeoning new profession whose numbers have more than tripled in the past 10 years. They're often trained as social workers and then learn the tools of a private investigator. Their job is not unlike that of a journalist's, the collection and writing of an individual's story. This past February, the American Bar Association added to its guidelines for capital-defense attorneys a section that encouraged them to work closely with mitigation specialists.

In 1990, a group of researchers set out to determine whether the penalty phase was working as it should. In interviews with 1,200 capital jurors over the past 13 years, the Capital Jury Project, which is financed by the National Science Foundation, has found that the most important factor in leading a jury to spare someone's life is lingering doubt (which is one of the few things that can't be addressed in the penalty phase). But jurors made it clear that they were influenced by other factors as well -- if the defendant had been placed in institutions but was never given help; or was under 18; or was abused as a child; or had no prior criminal record. (Preliminary findings from the study also show, somewhat surprisingly, that women are just as likely as men to impose death.)

Some of its findings, though, have been ambiguous or incomplete. Recently, the project has reported that roughly a third of jurors have decided on death before the penalty phase even begins. But they are only now beginning to analyze how quality mitigation affects decisions. The initial research, says Marla Sandys, one of the project's founders, indicates that "where jurors acknowledge the existence of mitigation, they're more likely to change their mind and they're more likely than not to go for life." 10 days ago, the Supreme Court reaffirmed the constitutional duty of defense attorneys in capital cases to fully investigate their clients' social histories, because, as the court suggested, to do otherwise would deny a jury the information it needs to decide whether the defendant's life should be preserved.

By the time Bob Hill got Gross's case, he knew it was senseless to spend time trying to gather evidence for an acquittal. So for a year and a half, Hill, along with his co-counsel, Mark Earnest, searched for people who in one manner or another had touched Gross's life. Persuading some of them to testify was tough. This was especially true of Gross's parents, who would essentially have to tell the jury how irresponsible they'd been. It took nearly a dozen visits with Gross's mother before she agreed to lay out her dismal life in court. "I'm a little bit social worker, a little bit psychologist, a little bit friend and a little bit lawyer," Hill said. He might have added storyteller to that list, for in the end that's what makes for the best mitigation: a compelling, believable yarn that, as Hill told me, tries "to make sense out of the nonsensical." It's an art that has little to do with good lawyering. "You don't engage in the in-your-face kind of lawyering you usually do," he said. "I wanted to get the jury to walk in Jeremy's shoes."

To assist them, they hired Cheri Hodson-Guevara, who had worked with recovering alcoholics before becoming a mitigation specialist. Over the course of a year, Hodson-Guevara helped the attorneys find witnesses and worked to gain those witnesses' trust. "You're asking them to tell you things they've never told anyone else before," she told me. "I'm out there to ask the question 'Why?' There's always a 'why.'"

The penalty phase in Gross's trial spanned five days. None of the jurors spoke to me of a single moment of epiphany; rather they described a gradual, cumulative understanding of why Jeremy Gross entered the Convenient Food Mart and murdered Christopher Beers.

41 people testified, including Jeremy's mother. 1 juror recalls that she never once looked at her son. "It was almost as if she were talking about a complete stranger," another juror told me. But it wasn't only family members who took the stand. The mother of a former girlfriend of Gross's. Friends of Gross's. One of the state's most renowned high-school football coaches. 3 psychologists. A former state Supreme Court justice. 3 caseworkers for child welfare. And foster parents who had taken Jeremy and his sister in for a year.

Many of the jurors cried during testimony. Many had restless nights. "It's 4:18 a.m.," 1 juror wrote to her husband. "Can't sleep anymore." One juror recalled that she had one overriding emotion through those days: "I was scared," she said.

Gross's first 18 years were indeed full of misery and suffering. But is that reason to spare someone's life? After all, as the prosecution would point out, not everyone who has a wretched childhood kills. And besides, as the prosecutor Jeffrey Gill pointed out, "Everybody who commits murder comes with a story."

This is what the jury heard the first day. By the time Gross was born, his parents, who were quite young, didn't get along. When his father drank, which was often, he would get violent. One of Jeremy's 1st memories, from age 6, was of his father slamming his mother's head into the refrigerator. Photographs taken at the time were passed out to the jury. One showed her with a welt on her neck and a blackened and bloodied eye. Another displayed the stitched-up gash on top of her scalp. That same year, Gross's father, Jeff, and his mother, Cindy, both exceedingly drunk after a day spent watching the Indianapolis 500 on television and then bar-hopping, got into another dispute. His father smacked his mother across the face, then a short while later fell asleep on the living-room couch. Cindy doused the sofa with charcoal-lighter fluid, lighted a match and then took her daughter, Jennifer, by the hand, lifted her son, Jeremy, into her arms and walked out the door. Gross's father escaped unscathed, but Cindy, in this same courtroom, was found guilty of arson and placed on probation.

She and her husband separated, and she took Jennifer and Jeremy to live with her at a friend's house, where, among the chaos, a prostitute named Angel had sex with men in the living room. Cindy disappeared for days at a time, frequently consuming vast quantities of alcohol and prescription drugs. Dog feces littered the floors. Jeremy occasionally slept in a closet. He had so few clothes that in two photographs Hill showed the jury, he was wearing the same turquoise-colored shirt. The pictures had been taken more than a year apart. Kids at school would taunt him with the moniker "gross Jeremy," and teachers would send home notes complaining of his dress and hygiene.

Bob Hill unveiled 2 charts. In mitigation circles, they're called "chaos maps." One listed the 27 addresses where Jeremy had lived by the time he was 16; the other, the 33 schools he had attended. When Jeremy was 8 and his sister was 10, the state child-welfare services took them away from Cindy. "They didn't have a place in this world," a friend of Cindy's testified.

Almost all of the jurors were parents, and they couldn't understand how a mother could be so uncaring for her children. One juror, Sandra Logan, tried to avoid looking at Gross for fear she would weep in the courtroom. When she did catch glimpses of him, his head was often buried in his hands, or his head was lowered as he doodled on a legal pad. (He was writing notes to himself like "be calm" or "it's O.K.")

Jurors began to view what they initially thought was indifference as shame. Logan, whose face is lined with wrinkles from working for 26 years with hot oil as a machine operator, is by her own admission occasionally aloof and gruff, and she didn't interact much with the other jurors. Logan has two sons, one of whom served 2 years in prison for stealing money from his employer. Looking at Gross, she told me, "I did think, 'Yeah, that could've been my son.'"

Early on in Jeremy's mother's testimony, when she recounted her efforts to set her husband afire, Logan recognized the address. It was down the street from where she lived. She remembered the fire but hadn't known the details. The house is still boarded up. "It upset me more than the murder," she said. "I guess because I couldn't understand how a mother or father could do their child the way they had done him. I felt his parents were more to blame than he was."

A number of the other jurors had begun to feel the same. Cheryl Berkowitz thought of what she had done to her own son who had taken care of her when she was hiding out in her bedroom, sometimes for weeks at a time, using cocaine. "Having to take care of your drug-addicted mother," she said, "that's a burden no kid should have." But what ate at her even more is that she became convinced that Gross's mother knew what he was doing, especially because it became clear that she once threatened to turn her son in to the police if he didn't give her a portion of money he'd stolen. On another occasion, she helped him hide a stolen truck. "Where's her responsibility in all of this?" Berkowitz asked herself.

In fact, early in the trial, Hill suggested to the jurors that there should be 2 other seats at the defense table, inferring that Gross's mother and father were also to blame. Kevin Garrison, the foreman, came to agree. "They might as well have pulled the trigger," he thought. "They just didn't care."

Sandra Logan couldn't concentrate at night. She was unable to complete her crossword puzzles. Without anyone to talk to about what she was hearing all day, she occasionally wrote notes to herself before she fell asleep. The 1st time was after they had found Gross guilty. "The tug of war in my gut, it's going to stay with me for some time to come," she wrote. "Jeremy is such a young man to have destroyed his life and will haunt me forever. I'm sure the day will come that I will be calling on God's strength to guide me." Shortly after Gross's parents testified, she wrote: "Even life in prison seems awfully harsh for Jeremy. He's been doing a life sentence since he was born."

The thinking goes in mitigation circles that it's not enough to present someone as psychically battered and frayed, since if a jury feels he's too far gone, what's left to save? As Hill put it to me, he worried they might just say, "Throw it away; it's broke." But when he found Charles and Gail Garner, who for one year had been foster parents to Jeremy and his sister, Hill began to think he had a chance of persuading the jury that "there's something here worth saving."

The Garners live on the outskirts of Indianapolis in a modest ranch house. Charles, or Buck, as he's usually called, is a big man, with arms and neck thick as an oak. Gail has layered, shoulder-length brown hair and seems as sturdy as her husband. Buck wore blue jeans and his trademark black cowboy boots when he came to court to testify; Gail wore jeans and tennis shoes. "We wasn't no big tycoons," he told me. When Buck took the stand, he glanced over at Jeremy, whom he hadn't seen in a dozen years. "I was still trying to imagine that 8-year-old boy I'd last seen," he said. "That little boy wasn't there anymore." Buck and Gail, who were both in their late 20's in 1988 and had been married 7 years, had tried without success to have kids. So they decided to become foster parents. The 1st and last children they took in were Jeremy and Jennifer.

Buck and Gail testified that they enrolled Jeremy and Jennifer in the Boy Scouts and Girl Scouts, that they gave them chores every day, that they made a point of sitting down as a family every night for dinner to talk about the day. Jeremy did well at school and played Little League baseball. "I was very proud of him," Buck told the jurors, "as if he was my own son."

Buck described how, when their mother was scheduled to come get them for the night, he would dress the children in sweatpants so that if she didn't show -- which was usually the case -- they could fall asleep on the living-room couch. He recounted the time at a Little League game when Jeremy's mother showed up unannounced. She was falling-down drunk, he said, and she berated the children on the opposing team and then mooned an umpire.

Buck got choked up when he talked about how he and Gail had grown so fond of Jeremy and Jennifer that they considered adopting them. But the child-welfare services, determined to reunite the family, chose to place them back with their mother, though only after she could prove to them she had something to cook on. She purchased a hot plate. Hill asked Buck how it made him feel that for Jeremy that was the best year of his life. "I've been told that by several people," Buck said. "I'm glad to be a part of that young man's life. It was a very good year for me too."

Buck is an understated man, but several of the jurors came to share what they saw as his anger toward the state welfare workers. (He was also angry at Gross, Buck told me.) A number of the jurors noticed that during the Garners' testimony, Gross, for the first time in the trial, made eye contact with a witness. "He latched onto those moments when good things were said about him," Garrison recalled. The Garners attended the remainder of the trial, something the jurors took note of, especially since Gross's mother didn't appear in the courtroom after giving her testimony. (Hill, it turns out, had asked her not to, since he thought she might have to take the stand again.)

In an effort to show that Gross, with some structure, could do well, Hill had a retired state Supreme Court justice testify to having watched Gross participate in a mock trial when he was a youth in a detention facility. The justice had been impressed by Gross's performance. Also, Gross's sixth-grade teacher testified about how he was so talented and such a hard worker that she'd place him in a corner of the classroom out of reach of the class troublemakers. Indeed, Gross, who liked school, received his high-school diploma on time.

Carrie Tuterow, 32, was the youngest juror. She has wavy red hair and an open face, and at the time of the trial, she worked at a day-care center. Her outgoing spirit and assuredness seems the perfect temperament for such work. After convicting Gross, Tuterow had been certain of the appropriate punishment: death. And then the Garners testified. "I made my decision when I heard their testimony," she told me. "I remember writing home that I figured out why I was here."

Tuterow thought about her husband. He'd been taken away from his mother when he was 2 and put up for adoption. Though her husband isn't certain, he has been led to believe that his mother would disappear for days at a time. Tuterow began to wonder what might have come of him had he stayed with his biological mother. "At the point it became personal," she told me. "I began to identify with Jeremy." One night, unable to sleep, she wrote her husband a letter that read: "Whatever Jim didn't tell you is for the best." Jim was her husband's biological father. Having heard the testimony about Gross, she worried that news of his mother would be too difficult for her husband to hear.

Tuterow was so drained by the trial that in the evenings she was unable to paste any of the family photos she'd brought with her into the scrapbooks. "Last night," she wrote in another letter to her husband, "I had some strange dreams . . . nightmares, really. That makes 2 nights in a row. A combination of what I hear, imagine and what I read before bed, I guess. . . . I read a little of 'At Home in Mitford.' Now I have nightmares of murders in a small town."

Her husband sent her a bouquet of spring flowers. "My husband had a chance," Tuterow told me, "but there was no way Jeremy had a chance."

As Hill told Jeremy's story, the prosecution pounded away in its cross-examinations at the idea that not everyone who has had a difficult life ends up committing murder. What about his sister, Jennifer Gross? Or his stepbrother, Marion Higgenbotham? Neither had ever committed a crime of any sort.

So Hill had Jennifer and Marion tell their stories. Jennifer, who had been sexually molested by her father and had a child out of wedlock, sought counseling on her own. This is what saved her, she told the jurors. And in Marion's case, Hill brought Richard Dullaghan to testify. Dullaghan is an icon in sports-crazed Indiana. As football coach of Ben Davis High School, he has won 5 state championships. When Dullaghan, an open-faced, gray-haired man, took the witness stand, Hill asked him about the large ring he was wearing. It's from when he was inducted into the Indiana Football Hall of Fame, Dullaghan told him.

Dullaghan spoke not about Gross, whom he'd never met -- Gross's mother had been unable or unwilling to come up with the fees for him to play football -- but rather about Marion, who was the punt snapper on the high-school football team. Marion had testified the previous day that Dullaghan had been a kind of father figure for him, and that that helped keep him out of trouble. "I always tell my players, I'm your dad away from home," Dullaghan told the jurors. The implication, of course, was that Gross's mother had denied him every avenue to a better life, including the opportunity to have a stand-in parent like Coach Dullaghan. On his way out out of the courtroom, Dullaghan affectionately patted Marion on the head, a gesture that some jurors noted as a sharp contrast to the detachment of Gross's parents.

When Gross turned 15, his mother remarried. A year later, her new husband gave her an ultimatum: either Jeremy goes or he goes. Gross moved into a one-bedroom apartment with 7 friends. A teenage runaway girl testified that Gross made sure none of the guys in the apartment harmed her. She told the jurors that Gross encouraged her to return home and to go back to school. Another girl recounted how Gross had later given to her the one item that meant anything to him: his high-school diploma. He told her he didn't want anything to happen to it.

3 psychologists testified on Gross's behalf. They suggested he had been crying out for attention, and they pointed to a bungled robbery when he was 15, in which Gross, carrying a gun, took a pair of shoes from a store and fled on foot. In the ensuing chase, Gross shot himself in the leg. He was sent to juvenile detention, where he fared rather well. The psychologists testified to his ability to thrive under structure.

The prosecutors asked of 1 psychologist: "Was he compelled to commit those acts?" At one point, exasperated by the painting of Gross as a victim, 1 prosecutor suggested that "it almost sounds as if the criminal-justice system would be cruel to punish a person for committing a criminal act."

Elizabeth Stone, 1 of 2 jurors who marked on their questionnaire that they strongly favored the death penalty (the other was the machine operator, Sandra Logan), had early on been annoyed by Hill. "I could see how much he was trying to manipulate us," she recalled. "It made me angry." Then Gross's story unfolded. "When you think about the death penalty in the abstract," she told me, "you don't think about individuals."

Stone and I met at a local restaurant. She seemed wary of revisiting the trial, and in fact it took a couple of phone calls to persuade her to meet with me. She is soft-spoken, with sad eyes and shortly cropped auburn hair. "It's unsettling to me because it was so violent," she told me, looking away. It took me a few minutes to realize she wasn't talking about the murder, but rather about Gross's life.

All but one juror I spoke with referred to Gross by his first name, as if they were speaking of a family member or friend; a few, in fact, couldn't remember the name of the victim. Two arguments ultimately swayed Stone. At one point, Hill talked about studies that indicated that it was more expensive to put someone to death (mostly because of the inevitably lengthy appeals process) than it was to incarcerate them for life. But what most influenced her was something less tangible: she had come to genuinely care for Gross. She told me that it was clear that Gross was moved by some of the testimony, particularly his sister's. He looked to be tearing up, she told me, and she thought to herself that anyone with emotions might be able to be rehabilitated and make something of his life in prison.

During closing arguments, Hill pulled up a chair in front of the jurors and sat down. He'd once seen an attorney he admired do the same, to help defuse a charged moment. But he also fretted that his emotions would get the best of him.

"I think I'm too nervous to move around," he told the jurors. "The law says that we're supposed to sentence people to death that are the worst of the worst. . . . Jeremy Gross is not the worst of the worst. I think you all sense that in your hearts." He periodically pointed to a chart that one psychologist had put together listing all the risk factors in Gross's life and reminded the jurors how Gross, despite the parental neglect, could be nurturing, both to friends whom he urged to stay in school and to other inmates, whom he read to and tutored. "You kill Jeremy," he told the jurors, "you kill those good things that are existent in his heart, and that's wrong."

Toward the end of his closing, jurors could hear the desperation in Hill's pleas. One juror said Hill spoke of Gross as if he were a son. "I'm begging you," Hill appealed, "to spare his life."

If at this point you're angry that there has been so little about Christopher Beers, the victim, you're not alone. The prosecutors tried, without success, to introduce how much Beers's death had affected those around him. Most states allow some amount of victim impact statements. Some even allow victims' family members to testify about why they think death is the appropriate sentence. But Indiana doesn't permit testimony about the victim. "You come away feeling that the playing field is tilted," Newman, the former prosecutor said. "The only person who becomes humanized is the defendant. The victim becomes a cipher."

It particularly frustrated Gill, the young prosecutor, who knew how strongly Beers's family believed that Gross deserved death. "Mr. Hill has asked you for compassion," Gill began. "The State of Indiana is asking you for justice." Gill told the jury in his closing statement that Jeremy had, indeed, graduated from high school, that he had, indeed, advised others on how to live an honorable life. "Jeremy's childhood is not an excuse for what happened on this videotape," he said. "He can distinguish from right and wrong. He does know how to improve his life. It comes down to the fact that he chose not to." Before stepping down, Gill, one last time, played the 41 seconds of videotape. It was his exclamation point. It underscored the brutality of the crime and Gross's unquestionable guilt. A few of the jurors avoided looking at the television. "I'd seen it enough," one of them told me.

As the jury prepared to leave, one spectator muttered, loud enough for some of the jurors to hear, "He's getting away with murder."

The jurors were escorted to the jury room, a small, unadorned space, where Garrison, the foreman, let everyone collect themselves. The 12 jurors mulled silently for half an hour, helping themselves to cans of pop and orange juice from 1 of 2 small refrigerators. They then convened around an oval-shaped, laminated wood table. Since it could accommodate only eight chairs, four of the jurors had to sit against the wall. One juror could be heard mumbling, "I don't want to be doing this." It's how many of them felt. On a blackboard, Carrie Tuterow wrote down the options: death, life without parole and a determinate sentence. Garrison suggested they first take a vote, and so everyone, anonymously, wrote on a piece of paper where he or she stood.

They were surprised by how similar many of them were in their thinking. Nine voted for life without parole, one for a term of years and two for death. Garrison asked each of them to state his or her case, and it soon became evident who was in the minority. Cheryl Berkowitz, the recovering addict, thought Gross deserved another chance, and so said he should have a chance to get out of prison someday. Berkowitz, though, was fairly reticent during deliberations; she chose not to share her own story, as she feared that the other jurors' anger toward Gross's mother would be transferred to her.

A juror named Darlene Sue (she requested that her last name not be used), who had read the Bible every night searching for answers, believed Gross should die. She told her fellow jurors that over the course of the trial she'd come to believe that the Old Testament's notion of an eye for an eye made sense, and she read a short passage from the Bible she had with her. "He wasn't so scarred by his childhood that he didn't know right from wrong," she told me. "I remember his friends who he was living with in the trailer, saying that he talked them into staying in school. That told me he knew what he was doing."

The other juror who initially voted for death also quoted from the Bible, about not sitting in judgment of others. She soon switched her vote.

Garrison wavered. He agreed with Darlene Sue that clearly Gross had a moral compass, but he felt that the abuse that he endured as a child had shattered it. "I began to think not that there's an excuse for what happened, but I had an understanding of his torment," he said. "Sympathetic is too strong a word, but I can't think of a better way to describe how I felt. I struggled with whether he knew the difference between right and wrong." (Garrison said he repeatedly reminded himself of the gruesomeness of the crime, conjuring the one image that haunted most of them, the photograph of Christopher Beers lying face down by the dangling pay phone.)

At one point, 1 juror said: "Everyone knows a Jeremy. Every neighborhood has a Jeremy." Sandra Logan, who had kept to herself, talked of how the social-service agencies, the courts and his parents had failed Gross, a sentiment echoed by others. Privately, she considered her relationship with her son who'd been to prison. "To me, Gross's parents threw him away," she said. "Even to this day, with my son and all the problems he's had, he's still my son." It became clear that for some of the jurors, they saw some of Gross's frailties echoed in their own lives. Others were struck by how well Gross seemed to do when he was in detention, when he was in a supervised environment. "Maybe," suggested Tuterow, in prison "he'd touch someone else's life."

One juror mentioned the outburst at the end of the trial, that Gross was getting away with murder. She argued that life without parole was, in fact, a pretty severe punishment. In fact, some thought that it was a harsher sentence than death. "He seemed to be a kid with a conscience," Garrison said. "That killing's going to weigh on him every day."

The jurors took several breaks, including one to eat pizza for dinner. On the 4th vote, Darlene Sue gave in, though reluctantly. She worried that if a mistrial was declared, another jury might sentence Gross to a term with the chance of parole. The votes were tallied. It was unanimous. "I said, 'We have a sentence of life,'" Garrison recalled. "And everybody in the room -- and I mean everybody -- started crying." They waited nearly an hour to gather their composure before buzzing for the bailiff.

Many of the jurors told me that when they returned home, family, friends and colleagues at work chastised them for not putting Gross to death. Some of the jurors tried to convey the details of Gross's life, but it sounded like they were making excuses for him and for themselves. One juror would simply tell friends, "Well, you haven't been where I've been," and leave it at that.

One night over dinner, Elizabeth Stone told her sister and brother about Gross's life. "It didn't seem to impress them at all," she said. They said they still believed that Stone should have voted for death. "We just turned the conversation to other things," she told me. They never spoke about the trial again.

One juror sank into a deep depression and missed 2 months of work. Tuterow talked with her husband about starting a shelter for abandoned and neglected children. For many months after the trial, Garrison told me: "I found myself going out of my way to listen and watch kids I knew. Just wondering. Hopefully, this isn't the next Jeremy. I guess in the end -- and maybe this is hard to admit -- I had trouble separating the facts of the crime from my sympathy for Jeremy."

A number of the jurors said they had considered writing Gross, to urge him to tutor and pursue his own education in prison, to take advantage of the chance they'd given him. They exchanged addresses with one another and talked of a reunion, but it never happened. It was, they each told me separately, probably just as well. The memories of the trial are still painful. Even three years later, some of the jurors I spoke with got teary-eyed when recounting some of the testimony.

The trial also had an unexpected effect on Gill, the young prosecutor. "I was surprised by the feelings of sympathy I had for Jeremy," he told me. "That caught me off guard. You don't learn in law school how to deal with the penalty phase. Nothing prepares you for that." I asked Gill whether he thought Gross deserved to die. He reclined in his chair and pondered the question for a minute or 2. "Yes," he said. Then he added, "But I'm not dissatisfied with the jury's decision."

12 jurors -- each of whom was convinced that some people, given the cruelty of their acts, deserve to die -- chose to spare a life. To some, it might seem as if they copped out, that they're hypocritical. To others, their action might appear courageous. What is clear, at least to most of them, is that they no longer feel as certain about the death penalty as they once had.

"It got me thinking that we all have circumstances in our lives that are mitigating, so I don't know how you make that judgment," Elizabeth Stone told me over lunch earlier this year. She had initially been reluctant to talk with me, and she was clearly reticent, her voice so soft that it was sometimes difficult to hear her. It was, it turns out, the 1st time since the dinner with her siblings that she'd spoken with anyone about the trial. She was still wrestling with her decision, she said, and in fact had saved the 42 pages of notes she had taken during the trial, as well as newspaper stories about the case that her sons had clipped for her.

I reminded her at one point that on her questionnaire she indicated that she strongly believed in capital punishment. "It's a tough issue," she said, sounding a tad defensive. "And until you're put in the hot seat, you don't know how you'll act."

(source: Alex Kotlowitz is the author of "There Are No Children Here" and "The Other Side of the River."---New York Times)

Victim's family, community views influence prosecutors

By Tim Starks - The Star Press

Saturday, February 7, 2004