For some reason, I've sat here and prayed to the Lord for answers on why this is happening. Since Miss Babin took the stand, I knew I was gonna get found guilty. Down in my heart, I truly believe that the Gerardi family knew I didn't do it, and I know I didn't do it, the Lord knows, y'all know, my defense team knows, the State knows, and everyone else. But that's not the answer. We will never get an answer as to why this is happening to us. But as I write this letter to you, I did not and will not shed a tear. So please don't cry for me or over me. I must go because the Lord awaits me."
--Shareef Cousin, in a letter to his family during jury deliberations at his murder trial
Shareef Cousin, convicted murderer, has a cartoon figure tattooed on his left forearm. It's one of those blurry prison deals, done quick, dirty and cheap. He's not certain if it's Beavis or Butt-head. In any case, it's one of his last emblems of fleeting youth. In 1996 Cousin was sentenced to death for the murder of 25-year-old Michael Gerardi in a 1995 street robbery in the French Quarter of New Orleans. Cousin was only 16 years old when he was convicted and sentenced, making him one of the youngest condemned convicts in the U.S.
Cousin, who is black, is one of 63 juvenile offenders on death row in prisons around the U.S. Two-thirds of this group are minorities, and two-thirds of their alleged victims were white. "What that tells me," says Steven Hawkins, executive director of the National Coalition to Abolish the Death Penalty, "is that while we as a society are willing to give second chances to white children, that understanding gets lost when it comes to black or Latino kids."
Cousin has been in jail for more than two years, and a few weeks ago, he marked his 19th birthday behind bars. He had little to celebrate. He's on death row at Louisiana State Prison at Angola, a former plantation turned high-security prison that was made infamous by the movie Dead Man Walking. Cousin's cell is small and stark, with cement floors, a metal sleeping bunk and a squat, steel toilet. He is locked in his cell 23 hours a day, with a one-hour break to exercise or use the telephone. Meals are pushed through a slot in the door: breakfast at 5:30 a.m., lunch at 10:30 a.m., dinner at 3:30 p.m. The air is usually heavy and hot and stirred by large fans in the hallway. The days drag like toilet paper stuck to a shoe. "Sometimes I feel like I'm just sitting in there deteriorating," says Cousin. "Just slowly evaporating."
Cousin says he is innocent, and in December his lawyers began arguing his appeal before the Louisiana State Supreme Court, which is expected to make a ruling in early February. If Cousin's appeal fails, his ultimate destination is a one-story execution building five miles away. There, on a white metal table with outstretched armrests, on a yet-to-be-determined day at a yet-to-be-determined hour, he will be strapped down and injected with three drugs. The first shot of sodium thiopental will bring on unconsciousness. The second drug, pancuronium bromide, will paralyze his body functions. And the last drug, potassium chloride, will stop his heart. "The years 15 to 18 are when you should learn most of the things about life," says Cousin. "Right now, being here, I know more about the justice system than I do about life."
THE KIDS ON THE ROW
The death penalty is typically regarded as the last resort of justice. We expect men and women on death row to be men and women--career criminals with hardened hearts and calloused souls, past adolescence and beyond redemption, with long rap sheets and a slimy-slug trail of inflicted suffering. But that's not always the case. The U.S. is one of the few countries in the world that executes juvenile offenders: criminals whose alleged offenses were committed when they were under the age of 18. There are only six countries in the world that are known to have executed juvenile offenders in the '90s: Pakistan, Saudi Arabia, Iran, Nigeria, Yemen--and the U.S. "We should be embarrassed to find ourselves in that company," says Hawkins. "Every one of those other countries is known for human-rights violations. Even China and Russia have banned the use of the death penalty against children."
The U.S. has executed six juvenile offenders this decade--more than any other country. A 1988 Supreme Court ruling (Thompson v. Oklahoma) is widely interpreted as prohibiting the execution of offenders who committed crimes when under the age of 16, but individual states can set higher minimum ages. Of the 38 states that allow the death penalty, 13 set the age at 18, four set it at age 17, and 21 have a minimum of 16 years of age or no minimum at all.
Some argue that children mature enough to murder are mature enough to be punished for it. "I think when my kids were 15 or 16 they knew better than to kill someone," says Miriam Shehane, president of Victims of Crime and Leniency (VOCAL), a victims'-rights group based in Montgomery, Ala. "If someone does adult crime, they are acting as adults, and they have to take responsibility." Shehane contends that capital punishment is not only for those with long legacies of criminality but also for anyone, teens included, who commits singularly horrific crimes.
She has company. Increasingly, law-enforcement officials are looking to prosecute juvenile offenders as adults. Republican Governor Pete Wilson of California has suggested that 14-year-olds should be eligible for the death penalty. Wilson spokesman Sean Walsh says the Governor was not proposing any new legislation, merely advancing an idea. Walsh says gangs in California often use underage triggermen because the gangs know that, if the triggermen are caught, they will not be subject to capital punishment. Lowering the minimum age, he argues, would change that practice. "We have people who are literally assassins, and although they may be under the age of 18, they know what they are doing," says Walsh. "We need, as a society, to see if there is some action that can be taken. And, by God, the death penalty is a deterrent."
But in addition to the racial imbalance of the death-row population that Hawkins cites, experts say juvenile offenders on death row are often the victims of recent, horrible child abuse. The case of Robert Anthony Carter, a child of abuse who was put on death row in Texas 15 years ago for crimes he allegedly committed when he was 17 years old, is not atypical. Carter, who is black, grew up in a Houston housing project and was routinely taunted and beaten by other children because his clothes were ragged and dirty. His mother and stepfather would thrash Robert and his five siblings with wooden sticks and electric cords. At age five, he was hit in the head with a brick. At 10, one of his brothers hit him so hard on the head with a baseball bat that the bat broke. Another time, his mother smashed a dinner plate on his head. None of these injuries was ever treated. His IQ has been measured at 74, which is considered semiretarded. None of this information was presented at Carter's original trial for the robbery and murder of a gas-station clerk. The jury found him guilty in 10 minutes. His case is now before the Supreme Court.
A 1988 study by Georgetown University neurologist Dr. Jonathan Pincus and New York University psychiatrist Dorothy Lewis of 14 condemned juvenile offenders, one of whom was Carter, found that all 14 had suffered serious head injuries as children, all had serious psychiatric problems, all but two had been severely beaten or physically abused as children, and five had been sexually abused by relatives. Only two had IQ scores above 90.
Many adult offenders, of course, also had rough childhoods. But as Victor Streib, dean of Ohio Northern University's law school and an expert on condemned teens, points out, "The 30-year-old criminal has been out of the house for 10 years. He's had time to form a new life. Almost all teenage offenders are still living at home. The damage done to them emotionally and mentally is not so far removed. The abuse was last night." Counters VOCAL's Shehane: "We have to go beyond rationalizing violent, heinous crime by fluffing it off to 'Oh, he had a bad upbringing.'"
To be sure, almost every inmate, particularly the ones on death row, has a tall tale to tell, of being railroaded by overly aggressive prosecutors, of being set up by enemies or let down by friends, of crucial evidence that was supposedly lost or airtight alibis that supposedly went unheard. Cousin, for his part, has maintained his innocence since he was arrested and charged with murder more than two years ago. What makes his claim of innocence so compelling is that there is a good deal of evidence that suggests he may be telling the truth.
His case raises the question: Should teens, guilty or not, ever be put in a situation where they are forced to fight for their lives? "Knowing I'm on death row for something I didn't do is pretty hard," says Cousin. "You picture yourself being executed. You think about what your next life will be like. It's like a fantasy, something you never dreamed could happen. I feel like I'm in the middle of reality in a fantasy. What did I do to be treated like this?"
A FATAL DATE
"Michael Gerardi was 25 years old. He graduated from Brother Martin High School. He lived with his mother and father in Slidell. He worked at T.J.'s Seafood. He was a plant manager at Pointe-a-la-Hache, and on May 2, 1995, at about 10:26 in the evening, Shareef Cousin ended that. He ended his ambitions; he ended his dreams..." --New Orleans assistant district attorney Roger Jordan, in his opening statement at Cousin's murder trial
When Michael Gerardi arrived for his first date with Connie Babin, he brought a single red rose. Connie and Mike had met at a Mardi Gras party in the French Quarter; a day or so later he called her up and asked her out to dinner. Connie was 37 years old--a dozen years older than Mike--but there was something about her that made him think about settling down and raising a family. "Momma, this may be the one," he had told his mother.
The couple went to a hamburger restaurant in the Quarter called Port of Call, on the corner of Esplanade and Dauphine. They left the restaurant around 10 p.m. and walked down Esplanade toward Mike's pickup truck, half a block away.
It was then that Connie noticed three young men coming across Esplanade toward Dauphine in the same direction that she and Mike were headed. "I tried to relay my feelings to Mike to let him know that I was uncomfortable, that I did not want to continue walking," she would testify later in court. "I was holding him back, tugging on his arm, and he thought that meant I was cold, so he proceeded to take off his jacket, and I said 'no' and indicated with my head toward the three gentlemen...I was looking at the one that was closest to me."
On the stand, Connie identified the "closest" one as Cousin, saying he was 5 ft. away. They made "eye contact," and he "broke eye contact first." Next, she says she saw "a gold glint or flicker" in his teeth as he said something to one of his companions. (Cousin does have gold caps on his teeth.) She and Gerardi continued walking toward Gerardi's truck. The killer Connie identified as Cousin stopped, bent down and "fiddled" with his boot. (Police were unable to find boots that fit Cousin in his home, and he says he doesn't own any.) Gerardi sent Connie to the passenger's side of the truck and headed toward the driver's side. She looked back to see the killer coming straight for Mike, who told her to "go away." She began to run, then looked back.
"[The killer] just put his arm up and shot Michael in the face. There was a pop," Connie testified. She said she was 10 ft. away. "Shareef, the gun--he was holding his arm with the gun in it," she said in court. "He looked toward me for a few seconds, and I remember thinking he was going to shoot me...I saw that Michael's legs were bent, but he wasn't falling. Shareef was holding him up...I couldn't imagine why he was doing that, and then I realized that he was probably taking his money." Connie ran back into a side door of Port of Call and called 911. Then she went back out into the street and knelt beside Mike's lifeless body and held his hand until police arrived.
Later, Connie identified Cousin from a group of photos police laid out in front of her. In court, prosecutor Jordan asked her if she had any doubt that Cousin was the killer. She said she had none. Jordan asked her to "point out to the jury the person that you saw shoot Mike Gerardi."
"Right there in the white," said Connie. She pointed at Cousin. Her hand was shaking. "May God forgive you," she said, "because I never will."
FROM FATHER TO SON
"My family knew very little of my real life. In effect, I lived two lives, the one with my mama...and the thing on the street." --George Jackson, Soledad Brother, 1970
For a long time Shareef Cousin thought he knew who his father was. Shareef was the seventh of eight children born to Beverly Cousin in the downtown 9th Ward area of New Orleans. The first five kids came from Beverly Cousin's first marriage. After that relationship ended, she became involved with Robert Epps, a special-education teacher at Nicholls High School, and she had two more kids, including Shareef. He was an intelligent child. The family was poor, but he seemed like he was headed places. He won his school's Martin Luther King award for an essay on "How Technology Has Progressed." "He was a positive role model here," says Shareef's half-brother Ellis Cropper, with whom he lived for a time. "He got A's and B's, played varsity football and served as an usher in church...He wanted to be an accountant so he could manage the money he was going to make as an athlete."
One day Shareef, a few friends in tow, went over to Nicholls High in New Orleans to see his father. Epps had broken up with Shareef's mother years before; so Shareef had no relationship with him and wanted to change that. He went to the front office, asked what room Mr. Epps was in and went to talk to him.
"Do you know me?" Shareef asked.
Epps said that he did.
"You're my father, right?" Shareef asked.
"No, I'm not," Epps replied. "I don't know why your momma would tell you that."
Shareef was crushed. And in front of his friends. "I started crying," Cousin told TIME in a prison interview. "That was like him telling me, 'I'm sorry I made you.' Like I wasn't worth anything."
Family members say that day was the start of Cousin's descent. His grades fell. He developed a bad attitude. His mother began to suspect he was using drugs. A local substance-abuse treatment center, Eastlake clinic, agreed to admit him. There he met James Rowell, a teen who was in Eastlake for depression. After Cousin left Eastlake, he began to run with Rowell, accompanying him on robberies. (Cousin claims he always stayed in the car during Rowell's stickups.) Family members say Cousin was looking for a father figure and settled for a bad influence. "James was on drugs too," believes Cousin. "He'd come around and bring them." Later, Rowell, after being arrested on robbery charges, would turn on his buddy and finger him for the murder of Gerardi. "The system failed [Shareef]," says Beverly Cousin. "We sent a child in to get help, and he met James Rowell instead."
On Friday, Jan 25, 1996, at 11 p.m., Clive Stafford-Smith, a British-born defense attorney living in New Orleans, was awakened by a phone call. It was a lawyer named Willard Hill, whose teenage client, Shareef Cousin, had just been convicted of murder by a jury. Hill, a local defense lawyer, hadn't expected to lose, and now he needed help to keep Cousin off death row. Could Stafford-Smith help him organize an "emergency" case for the penalty hearing? Stafford-Smith yawned and signed on.
The penalty hearing, three days later, was a disaster. The Cousin family boycotted it to protest the guilty verdict, Robert Epps arrived too late to testify as a character witness, and because Cousin had, a few weeks earlier, accepted a 4-count plea on some robbery charges (an agreement he now claims was coerced), he was effectively portrayed by prosecutors as a hardened criminal and was sentenced to death. Stafford-Smith has been working on Shareef's appeal ever since. "When I was a kid, I read about America's having the death penalty," he says. "I couldn't believe it. I was absolutely horrified. I thought I'd come over here and straighten out the colonies. I'm afraid I haven't done it yet."
Stafford-Smith says Shareef was convicted and sentenced to death for political and racial reasons. "There's a crime in the French Quarter, a big tourist area," he says. "A white guy is murdered by three people identified as black. You're dealing with serious pressure...Then James Rowell gets busted for a whole slew of robberies. My read is, Rowell led them to Shareef. This is a classic case, where the snitch provides the first lead. When Rowell fingers Shareef, the cops say, 'Hey, we've got our guy.' They come to Connie Babin and say, 'If you don't finger him, he'll kill again.'"
Stafford-Smith says there are several key elements that point toward his client's innocence:
1. The Nearsighted Witness. On the night of the murder, Babin told police that things were so confusing she doubted she could identify the killer. She did say he was "slightly shorter" than Gerardi--but, in fact, Cousin is 4 in. taller than Gerardi. Three days later, in a formal, taped statement, police asked Babin again if she could ID the killer. "I don't know," she said. "It was dark, and I didn't have my contacts or my glasses so I'm coming at this at a disadvantage." That statement was never turned over to the defense. Later, at the trial, Babin said she was "100% certain" Cousin was the killer. A few days after the end of the trial, an anonymous source mailed the defense a copy of Babin's earlier, weaker statement.
2. The Absent Evidence. No physical evidence links Cousin to the crime--no fibers, no blood, no weapon, nothing. Prosecutors say he became a suspect when he was identified by Babin in a "photo lineup." A tourist and a restaurant worker were said to have made, as prosecutors put it, tentative identifications. "A tentative identification is the equivalent of a partial pregnancy," says Stafford-Smith. "There is no such thing." Stafford-Smith charges that Babin and the other "tentative" witnesses were coached by detectives to identify Cousin in the photo lineup.
3. The Former Friend. After Rowell was arrested and charged with nine armed robberies, he was asked by his lawyer, George Simno, if he had any information that might lessen his sentence. Rowell hesitated and said he knew something about "the hamburger murder"--and then gave up Cousin for the Gerardi murder. However, at Cousin's trial nine months later, Rowell recanted completely and testified that he had only said what prosecutors and his lawyer told him to say.
4. The Coach. The murder took place at 10:26 p.m., according to the prosecution. However, Cousin was playing basketball that night--there's even a videotape of the game. Cousin's game, one of several held in the same gym that night, should have ended at 9:30 p.m., but because an extra game was added, Cousin's session, according to several witnesses, started at 9:30 p.m. Eric White, a coach in the city's recreation department, drove Cousin and three of his teammates home that night. "We left the gym between 10:20 p.m. and 10:30," says White. "I dropped Shareef off at quarter to 11. I lived half a block from his house. I remember the time because my wife was sitting up and waiting. She told me what time it was. Shareef couldn't have committed that crime. He was with me." Prosecutor Jordan interviewed White, on tape, about the murders and in court played a recording of White saying the game was over "about 9:30." White charges that the tape was altered. "The tape recorder he used was a microcassette," says White. "The tape he used in the courtroom was a regular cassette. I know he dubbed it...All I could think of is, my God, they've railroaded this kid!" White objected to the tape at the trial but wasn't allowed to elaborate on his protest. Renee and Raymond Douglas, two brothers who refereed the late-night game, also told D.A. investigators that the game ended about 10:30 p.m. Prosecutors never shared these accounts with the defense.
5. Three Teammates. Three basketball players who rode along with Cousin on the night of the murders--Donald Mathieu Jr., Michael Doss and James Smith--were subpoenaed and waiting in the hall outside the courtroom during one of the last days of the trial. The boys were ready to testify that Cousin was with them, in a car, around the time the murder was occurring somewhere else. But they vanished just as defense lawyers were about to call them. Defense lawyers later found out that the boys were taken by prosecutors to the D.A.'s office across the street. Prosecutor Bryon Berry, on the stand during hearings for a new trial, explained "because of it being hot outside and so forth, some of [the boys] were relocated to the D.A.'s office. There's air conditioning, and it's more convenient for them to sit." One problem with that excuse: the trial took place during one of the coldest Januarys in New Orleans history.
Harry Connick Sr., New Orleans' district attorney and the father of actor-jazzman Harry Connick Jr., puts on a show of his own a few times a month at local jazz clubs. He croons standards like Tin Roof Blues and Up the Lazy River, sometimes threatens to put the band in jail and, as a local lawyer puts it, "shakes his booty" at the audience. It's a loose show. Some lawyers in town say Connick has been running a loose show at the office as well.
In the 1995 case Kyles v. Whitley, the Supreme Court blasted Connick's office for its failure to disclose evidence favorable to a defendant during a murder trial. Such evidence, called "Brady material" after a precedent-setting case, is supposed to be turned over to ensure a fair trial, based on all the facts. Many defense attorneys around New Orleans say Connick's office continues to flout the law. In the past three months, says local defense lawyer Rick Tessier, Connick's office has withheld favorable evidence three times in three separate capital cases in which he's been involved. "Capital cases are so political that winning becomes far more important for the average D.A.," says Denise LeBoeuf, an attorney specializing in capital cases for the nonprofit Loyola Resource Center. "We're not talking about being competitive. We're talking about winning at all costs. Deliberately deceiving the court. Withholding favorable evidence. Arguing things they know aren't true. Harassing defense witnesses. Concealing deals they make with their witnesses. Winning means getting a death sentence. They are out to win."
Roger Jordan, one of Connick's star prosecutors, says such charges are scurrilous and the Cousin case, in particular, was built on solid evidence. "You've got three IDs of Shareef Cousin, one positive, two tentative," says Jordan. "You had five different lineups of six pictures each, and Shareef was identified each time."
So why didn't the D.A.'s office share Babin's seemingly indecisive original statement with the defense? Berry says the prosecution had no legal obligation to share the statement. But Bryan Stevenson, head of the Equal Justice Initiative in Montgomery, Ala., says prosecutors do, in fact, have a legal obligation to share with the defense exculpatory evidence--and in capital cases mitigating evidence, as well. Says Stevenson: "The obligation of the prosecution is to accomplish justice, not just get a conviction."
And what about the evidence that indicates that Cousin was at a basketball game or on his way home with coach White around the time of the murder? "We investigated that alibi seriously," says Jordan. "We had witnesses telling us these games usually lasted 35 to 40 minutes. The defense was trying to make a 40-minute basketball game into an hour and a half." Of course, the key question is when the game started--and White and several other witnesses say it started around 9:30 p.m., leaving Cousin, if he was the killer, an improbably small amount of time to play a full game, cross town and murder Gerardi.
Jordan also defends the fact that he asked for the death penalty in the case. "The fact that [Shareef] was 16 was a shame," says Jordan. "It's a shame that 16-year-olds go out and commit crimes and devastate lives. It's a shame that they've got guns in their hands to do these crimes."
The brutal nature of Cousin's alleged crime, Jordan argues, called for the ultimate punishment. "It was an armed robbery," he says. "He pulled the gun prior to the robbery. He shot Mike in the face. Then he held him up to pick his pockets. Mike Gerardi was just another bag of bones. Shareef Cousin didn't care if Mike was dead or alive. A jury of 12 citizens looked at this crime. The jury spoke."
Babin is still haunted by Cousin. "It was very hard to sit on that witness stand and breathe the same air as he, Shareef, does," she says. "He knows what I know. Unfortunately, Shareef and I are the only two people left who know what happened." There was something about him on the night of the murder, she says, that she can't shake. "He was the one who made eye contact," says Babin. "I watched his face. I watched his hands. I'll live with that. That's the face Michael saw."
Because American justice grinds on so slowly, because the appeals process in death-penalty cases often lasts years, juveniles who face capital punishment are almost always adults by the time the sentence is carried out. The aging perhaps makes it easier to flip the switch or pull the lever. But it also makes it harder to connect the criminal to the crime. "By the time the state gets around to executing these people, the kid who committed the crime no longer exists," says lawyer David Bruck, who is handling the appeal of Joseph Hudgins, 22, who was convicted of murder at age 17 in South Carolina and sentenced to death. "It is almost as if in some nightmarish procedure the state has arbitrarily substituted one person for another prior to the execution."
Cousin, too, is changing, maturing and learning to deal with life on the row. He still watches cartoons, but he's reading more. He read John Grisham's The Chamber to get some idea about what death row was really like; now he's reading For the Defense by Rubin Ellis. But he is still caught up in memories of childhood. The father of a recreational-league basketball player whose team was an arch rival of Cousin's squad is in the next cell. "It was the only team that beat us," says Cousin. "That was the last game I played before I got arrested." Cousin still thinks about his father, or the man he believes is his father, Epps. "I've called him since I came up here," says Cousin. "He won't come to the phone." So Cousin waits. For justice, for his father to take his call or simply for the next day.